Vrajkumar Ramanlal Shah v. STATE — 1997 DIGILAW 487 (GUJ)

S. D. PANDIT, J. ( 1 ) ADMIT. We have heard the learned advocates for both sides on merits and at lengths. We therefore propose to dispose of this appeal finally. Ms. Gajjar learned assistant Government Pleader waives service of notice of admission on behalf of respondents. ( 2 ) VRAJKUMAR Ramanlal Shah original petitioner in petition bearing SCA No. 1041 of 1995 has preferred the present appeal against the order of dismissal of his petition passed by the learned Single Judge on 5th July, 1997. ( 3 ) APPELLANT Vrajkumar Joined the sevices of the State of Gujarat as an Assistant engineer (Mechanical) on 1. 8. 1965. In May, 1896 the appellant had decided to go abroad (USA ). He therefore, had applied for obtaining a passport and he had also applied for long leave. As per the Government circular dated 9th March, 1981 the appellant-petitioner had made a dcclarartion on 8th May, 1986 that if he falied to resume his duty under government of Gujarat after the expiry of the period of the leave that may be granted to him, the said declaration shall be considered as his resignation from Government service and the Government may proceed further as if he has resinged from Government service. Thereafter, a No Objecrion certificate for the purpose of issuing passport was issued and he was granted leave from 4. 11. 1986 to 31. 1. 1987 with prefix 30. 10. 1986 to 6. 11. 1986 suffix. Thereafter the appellant left India and went to USA. 3a. But appellant did not resume his duty after the expiry of his leave and applied for extension of leave from 1. 2. 1987 to 30. 6. 1987. Again applied for half pay leave by sending application on 16. 6. 1987 for the period running between 1. 8. 1987 and 31. 11. 1987. But even thereafter the pertitioner never retuned from USA nor did he resume his duty. But he sent an application dated 20. 1. 1988 seeking voluuntary retirement. He then never resumed his duty and made repeated request to grant him vocuntary retirement and to award pensionary benefits by his letters of 17. 5. 1988 and 19. 5. 1988. Hence on 18. 8. 1989 the Disciplinary authority passed an order to treat the declaration given by the appellant as a resignation with effect from 4. 11. 1986. He then never resumed his duty and made repeated request to grant him vocuntary retirement and to award pensionary benefits by his letters of 17. 5. 1988 and 19. 5. 1988. Hence on 18. 8. 1989 the Disciplinary authority passed an order to treat the declaration given by the appellant as a resignation with effect from 4. 11. 1986. The petitioner-appellant has also alleged that he made an attempt to resume his duties by sending letter dated 20. 6. 86 but his request was refused by the letter dated 21. 8. 1988. He further alleged that the act of the respondents in not accepting his voluntary retirement and denial of retirement benefits to him is violative of Articles 14, 19 and 20 of the Constitution of India. He therefore, seeks a writ mandamus and to declare that the act of the respondents in not paying the retirtement benefits to the petitioner is absolutely wrong, illegel, arbitrary, malicious and contrary to the provision of Articles 14, 16, 19 and 20 of the Constitution of India and to direct the respondent to make payment of retirement benefits to the petitioner-appellant. ( 4 ) THE learned single Judge was pleassed to issue notice before admission. In pursuance of the notice the respondent No. 3 appeared and filed an affidavit in reply to oppose the admission of the petition. He conteneded that the appellant-petitionber had never sought voluntatry retirement by following due procedure of giving three months notice. Hence there is no retirement of the of petitioner appellant. He further contended that the petitioner himself has admitted in his petition that he had given a declaration regarding resigning his job and has also annexed copy of the same to the petition. That resignation given by appellant-petitioner is accepted by the department and he has been discharged from his service. Hence there is no retirement of the appellant-petitioner and consequently there could not be any illegal denial of retrirement benefits to him. It is further contended that after the initial sanction of 90 days leave upto 4. 11. 1986 the appellant went to USAand thereafter he never returned to India He got his leave extended twice from 21. 2. 1987 till 30. 11. 1987. But after 1. 12. 1987 he never sought either extension of leave or returned to his duty. It is further contended that after the initial sanction of 90 days leave upto 4. 11. 1986 the appellant went to USAand thereafter he never returned to India He got his leave extended twice from 21. 2. 1987 till 30. 11. 1987. But after 1. 12. 1987 he never sought either extension of leave or returned to his duty. It is contended that repeatedly notices were sent to the appellant at his address in India as well as his address is USA asking to resume his duty but he never resumed the same. The claim of the appellant that he made attempt to resume his duty but he was not allowed to resume his duty is absolutely false. As the appellant had never returned to India after he got leave from 4. 1. 1986 there is no question of not allowing him to resume his duty. Thus it is contended that the petitioners petition be rejected and the same need not be admitted. ( 5 ) THE learned Single Judge upheld the contention of the respondents that the appellant petitioner had resigned. She also found that as there was no retirement of the petitioner-appellant he was not entitled to the relief sought and hence rejected the petition. ( 6 ) MISS Shah senior counsel had produced the copy of the Government circular No. NOC-1083-1213-G. 2 dated 21st January, 1986 and contended that in view of this circular of 1986 the respondent were not justified in following earlier circular dated 9 th March 1981. She contended that the circular dated 9th March, 1981 stood superseded and revoked by circular dated dated 21 January 1986. We have carefully perused and considered both the circulars. We are unable to accept the submission of Miss Shah. Two circlers are quite distinct and different. At the outset it must be stated that the second circular dated 21th January, 1986 does not state specificaly or even indireclty that all earlier circulers stood revoked and superseded by the said circular dated 21. 1. 1986. The circular of 9. 3. 1981 is issued by Irrigation Department of Government of Gujarat whereas the circular of 21. 1. 1986 is issued by General Administration Department. The circular of 9. 3. 1. 1986. The circular of 9. 3. 1981 is issued by Irrigation Department of Government of Gujarat whereas the circular of 21. 1. 1986 is issued by General Administration Department. The circular of 9. 3. 1981 is providing instruction to the Irrigation Department by way of policy matter as to how leave is to be granted to an employee who seeks leave in order to go abroad and it also provided instruction for issuing no objection certificate for the purpose of issuing a passport to an employee : whereas the circular of 21. 1. 1986 is providing instructions to all departments as to how no objection certificate for the purpose of issuing passport is to be issued. We have carefully considered the contents of circular dated 9. 3. 1981 we are unalbe to hold that the terms of the said circular are either unreasonable or irrational or arbitrary or infringing any fundamental rights of a citizen. We therefore, are unable to hold that said circular is illegal or ultra vires. It is also necessary to mention here that the petitioner has not also raised a plea in his petition that the said circular of 9. 3. 1981 is illegal or ultra vires. ( 7 ) MISS Shah further urged before us that the declaration given by the petitioner as per said circular of 9. 3. 1981 is invalid and illegal and that the same was not given by the petitioner of his free mind. We have to state that the petitioner has not at all pleaded this case in his petition. When the petitioner has referred to the resignation given by him and when he has annexed the said declaration to his petition without uttering a word about its validity and legality it will have to be inferred that he never disputed the legality and validity of the same. We have found the circular of 9. 3. 1981 is valid and legal. The declaration given by the petitioner in pursuance of that circular as regrards resigning his job could not be said to be illegal and invalid. Therefore, in view of the above stated circumstaces we reject the submission of Miss. Shah. ( 8 ) MISS Shah drew our attention to the petitioners letter of 20. 1. 1981 is valid and legal. The declaration given by the petitioner in pursuance of that circular as regrards resigning his job could not be said to be illegal and invalid. Therefore, in view of the above stated circumstaces we reject the submission of Miss. Shah. ( 8 ) MISS Shah drew our attention to the petitioners letter of 20. 1. 1988 and submitted that that letter was received by the respondent before accepting the resignation of the petitioner and therefore, they ought to have voluntarily retired the petitioner. It is true that the disciplinary authority passed the order on 18. 8. 1989 accepting the declaration containing petitioners resignation. But merely because the said the order has come into existence on 18. 8. 1989, it could not be said that the petitioners claim for voluntary rertirement ought to have been accepted. lt must be stated that the petitioner had never withdrawn his resignation given by him by his declaration of 16. 4. 1986. Though in his letter of 20. 1. 1988 the petitioner has stated that he be allowed to retire voluntarily even in that letter of 20. 1. 1988 he has not withdrawn his resignation. As per his declaration of resigning his job the petitioner has clearly stated that in case if he failed to resume his duty after expiry of the leave it be treated that he has resigned his job. From the wording of the declaration it is quite clear that he intended to resign from the date he failed to resume his duty on the expiry of his leave. The petitioner was given his leave upto 30. 11. 1987 and after the date of 30. 11. 1987 he had neither sought extension of leave nor he had resumed his duty. Now apart from that aspect of the matter the petitioner had not applied for voluntary retirement by following due procedure for seeking voluatary retirement. His absence from his duty without seeking any leave will amount to abandonment of his job. In order to seek voluntary retirement he sought to have resumed his duty after he had abandoned his job. Therefore, in the circumstances and that the petitioner had not followed due procedure of giving 3 months notice before seeking voluntary retirement it is not at all possible to hold that he has been illegally denied to retire voluntarily. In order to seek voluntary retirement he sought to have resumed his duty after he had abandoned his job. Therefore, in the circumstances and that the petitioner had not followed due procedure of giving 3 months notice before seeking voluntary retirement it is not at all possible to hold that he has been illegally denied to retire voluntarily. ( 9 ) SHE further submitted that by the order of 18. 8. 1989 the appellant is retired from the back date of 4. 11. 1986 and therefore the said order of 18. 8. 1989 is illegal and invalid. She contended that by an order an employee could not be discharged or removed from service from back date. It is frue that the order of 18. 8. 1989 has given effect to resignation of the petitioner from the back date of 4. 11. 1986. But merely because of the same the whole order will not be illegal or invalid. In the case of Jeevaratnam vs. State of Madras air 1996 SC 951 the Apex Court had an occasion to consider a similar question. In this case of Jeevratnam (Supra) Air 1966 SC the following priciples are laid down : an order of dismissal with retrospective effect is in substance an order of dismissal as from the date of order with the super added direction that the order should operate retrospectively as from an anterior date. The two parts of the order are quite severable. Assuming that the second part of the order mentioning that dismissal would operate respectively is invalid, there is no reason why the first part of order stating that the appellant is dismissed, should not be given the fullest effect. The Government cannot pass a new order of dismissal but surely it can give effect to the valid part of order. Therefore in view of the above decision we hold that the appellant must be treated as having been discharged from his job by accepting his resignation from 18. 8. 1989. ( 10 ) IN must be also mentioned that in the affidavit in reply filed by respondent No. 3 it has been clearly admitted in para No. 5 (see page 56) that the appellant was granted leave from 4. 11. 1986 to 31. 1. 1987 and the same was extended twice and upto 30. 1. 1987. Then by the letter cum notice dated 27. 12. 11. 1986 to 31. 1. 1987 and the same was extended twice and upto 30. 1. 1987. Then by the letter cum notice dated 27. 12. 1987 the appellant was asked to resume his duty forthwith. This conduct of extending leave and sending letters and notice of 21. 12. 1987 to resume duty clearly indicated that the disciplinary authority was not having the desire and intention to accept his resignation immediately on expiry of his leave. In the above circumstances the discharge of appellant by accepting his resignation from 4. 11. 1986 is not at all justified. ( 11 ) THUS we hold that the appellant is entitled to get the only declaration that he has been discharged from his service by accepting his resignation from 18. 8. 1989. He would be therefore, entitled of get all the benefits to which he is entitled of being in service upto 18. 8. 1989. Consequently the respondents are not entitled to recover the amount paid to the petitioner appellant by holding that he stood discharged from 4. 11. 1986. Thus we hold that the appeal is partly allowed as indicated above in this para. In the circumstances we direct the parties to bear their respective costs. .