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2001 DIGILAW 152 (HP)

KRISHAN KUMAR v. HONBLE HIGH COURT

2001-07-19

M.R.VERMA, R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.—The petitioner joined service as a Clerk/Ahlmad on the establishment of District and Sessions Judge, Kangra at Dharamsala on 25.4.1980 and was posted as such in the Court of Sub-Judge-cum-Sub-Divisional Judicial Magistrate, Nurpur. In January, 1981 he was transferred to Chamba. On the bifurcation of Sessions Division, the petitioner was allotted to Chamba Sessions Division. He worked in various capacities and in due course, he was promoted as Senior Assistant. On such promotion, he worked as Civil Nazir/English Clerk in the office of respondent No. 2. In September, 1998, the petitioner was transferred to Dalhousie as Reader to Sub-Judge-cum-Additional Chief Judicial Magistrate. Having regard to certain domestic problems, the petitioner on 25.9.1998 submitted an application (Annexure P-l) to the respondent No. 2 praying for premature retirement from service and for being relieved from service with effect from 23.12.1998. Such request on having been considered by respondent No. 2 was accepted by him on 17.11.1998. The necessary orders in this regard are contained in Annexure P-4. The acceptance of his request for premature retirement was conveyed to the petitioner on 23.11.1998. 2. In the meanwhile, the petitioner on 19.11.1998 had submitted another application dated 16.11.1998 (Annexure P-2) to the respondent No. 2, through Sub-Judge-cum-Additional Chief Judicial Magistrate, Dalhousie seeking to withdraw the request made by him earlier vide Annexure P-l for premature retirement from service. The request of the petitioner made vide Annexure P-2 withdrawing his earlier application for premature retirement was rejected by the respondent No. 2 on 21.12.1998 vide Annexure P-5. The petitioner was thereafter relieved of his duties by respondent No. 2 with effect from 25.12.1998 (Afternoon) vide order dated 24.12.1998 as at Annexure P-6. According to the petitioner, though he was ordered to be relieved with effect from 25.12.1998, he was in fact relieved on 24.12.1998 (Afternoon) since it was Sunday on 25.12.1998. The petitioner preferred an appeal before the respondent No. 1 on the administrative side. The petitioner was informed vide Annexure P-8 by the respondent No. 2 that his appeal had been considered and rejected by respondent No. 1. 3. The petitioner preferred an appeal before the respondent No. 1 on the administrative side. The petitioner was informed vide Annexure P-8 by the respondent No. 2 that his appeal had been considered and rejected by respondent No. 1. 3. Feeling aggrieved, the petitioner has approached this Court under Article 226/227 of the Constitution of India for the issuance of an appropriate writ, order and/or directions to the following effect:— (i) Orders contained in Annexure P-4 dated 17.11.1998, Annexure P-5 dated 1.12.1998, Annexure P-6 dated 24.12.1998 and Annexure P-8 dated 6.5.1999 may be quashed and set aside; and (ii) The respondents be directed to reinstate the petitioner in the post from which he was relieved with all consequential benefits and he may be treated to be in service with effect from 24.12.1998, that is, the date on which he was relieved from service. 4. The stand taken by the respondents in their reply-affidavit is that the petitioner had submitted the application for withdrawal of his request for voluntary retirement on 19.11.1998 after the acceptance of his request, by ante dating his application as 16.11.1998. The relationship of employer and employee between the parties ceased to exist after the acceptance of his request for voluntary retirement. Once his request for voluntary retirement stood accepted, the petitioner could not have withdrawn the same. 5. The question involved in the present case is whether the petitioner could validly withdraw his request for voluntary retirement after the same was accepted but before the date, the petitioner was actually relieved, that is, the date the voluntary retirement was to become effective. 6. There is no dispute that the voluntary retirement as per the request made by the petitioner vide his application dated 23.9.1998 (Annexure P-l) was to be effective from 23.12.1998. The request for voluntary retirement made by the petitioner was accepted by respondent No. 2 on 17.11.1998 vide Annexure P-4 which was made effective from 25.12.1998 (Afternoon). It is the admitted case of the respondents that the request for withdrawal of his earlier request for voluntary retirement was made by the petitioner on 19.11.1998. Such request was rejected on 21.12.1998 vide Annexure P-5. The petitioner was relieved from service vide Annexure P-6 with effect from 25.12.1998 (Afternoon). 7. A Constitution Bench of the Honble Supreme Court in Union of India etc. Such request was rejected on 21.12.1998 vide Annexure P-5. The petitioner was relieved from service vide Annexure P-6 with effect from 25.12.1998 (Afternoon). 7. A Constitution Bench of the Honble Supreme Court in Union of India etc. v. Gopal Chandra Misra and others, AIR 1978 SC 694, has held that the general principle is that in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resigner. 8. In Punjab National Bank v. RK. Mittal, AIR 1989 SC 1083, the Honble Supreme Court again had the occasion to consider the question as to the principle of law to be applied to a case of resignation made to become effective on the expiry of a particular period or from a future date as desired by the employee. It was held that resignation being a voluntary act of employee, he may choose to resign with immediate effect or with a notice of less than one month, if the employer agrees to the same or he may also resign at a future date on the expiry or beyond the period of three months, and that it was always open to the employee to withdraw the same before the date on which the resignation could have become effective. (Emphasis supplied) 9. In J.N. Sirivastava v. Union of India and another, (1998) 9 SCC 559, notice of voluntary retirement was given on 3.10.1989 which was to come into effect from 31.1.1990. Notice was accepted by the Government on 2.11.1989 and thereafter the employee had withdrawn his notice for voluntary retirement on 11.12.1989, that is, after his notice for voluntary retirement was accepted by the competent authority. It was held:— "...........It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement." 10. The above principle was again reiterated by the Honble Supreme Court in Shambhu Murari Sinha v. Project and Development India and another, AIR 2000 SC 2473, and in Union of India and another v. Wing Commander T. Parthasarathy, (2000) 1 SCC 158. 11. The above principle was again reiterated by the Honble Supreme Court in Shambhu Murari Sinha v. Project and Development India and another, AIR 2000 SC 2473, and in Union of India and another v. Wing Commander T. Parthasarathy, (2000) 1 SCC 158. 11. In the instant case also, as pointed out above, the request for voluntary retirement was withdrawn by the petitioner much before the effective date, that is, 23.12.1998, therefore, he could have validly withdrawn his request for voluntary retirement. Therefore, the impugned orders as at Annexures P-4, P-5, P-6 and P-8 cannot be sustained and are liable to be set aside. 12. Resultantly, the present petition is allowed. The orders as at Annexures P-4, P-5, P-6 and P-8 passed by the respondents are set aside. The respondents are directed to treat the petitioner in service with effect from the date he was relieved from service with all consequential benefits as are admissible to him under the law and rules governing the petitioner. No orders as to costs. Petition allowed.