Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 616 (MP)

G. D. Sakvaya v. State of M. P.

2002-07-02

AJIT SINGH, DIPAK MISRA

body2002
JUDGMENT : DIPAK MISRA, J. The petitioner, a Food Inspector in the Department of Food and Civil Supply, after completing 16 years of service sought premature retirement by preferring an application dated 7-1-1993 with effect from 7-4-1993. The request for voluntarily retirement was acceded to by the Director of Food and Civil Supplies, Madhya Pradesh, Bhopal, the respondent No. 2 herein, in exercise of power conferred on him under Rule 42 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (for short 'the Rules') by order dated 29-4-1993 and the petitioner was retired from government service with effect from 30-4-1993. The pension papers were prepared and provisional pension of Rs. 405/- was sanctioned by the Collector. However, the same was objected to by the Senior Accounts Officer (Pension), Pension Cell in the Office of the Commissioner Tribal Welfare Department, Bhopal on the ground that the petitioner had not rendered 20 years of qualifying service and, therefore, was not entitled to any pension or gratuity. The said aspect was intimated to the petitioner. Being apprised of the aforesaid situation he submitted a representation dated 22-6-1994 for taking him back in service with effect from 1-5-1993 treating the intervening period to be leave without pay or fixing the pension amount at Rs. 450/-. This prayer of the petitioner was not acceded to as a consequence of which the petitioner visited the M. P. Administrative Tribunal, Bhopal (in short 'the Tribunal') in Original Application No. 478/1994. The said Original Application was rejected by the Tribunal vide order dated 13-9-1996 on the ground that the acceptance of premature retirement on the request of the petitioner by the competent authority was not falliable and there was no legal ground to lancet the same. While dismissing the application the Tribunal in Paragraph 6 had granted liberty to the petitioner to make a mercy petition to the competent authority highlighting his hardships and impoverished situation. When the matter stood thus, the petitioner approached the Tribunal in an application for review forming the subject-matter of M. A. No. 196/1996 wherein the Tribunal in paragraph 9 of the order came to hold that the applicant was totally ignorant about the Rules and had not exercised due care and proper deligence before writing a letter of resignation to the appointing authority. The Tribunal also opined that the notice given by the applicant was void and is non est in the eye of law. In view of the aforesaid conclusion the Tribunal came to hold that the petitioner was deemed to have been continuing in service even after the date on which his so called letter for retirement was accepted. After recalling the order passed in the original application the Tribunal directed that the petitioner shall be reinstated forthwith. Thereafter, it addressed itself with regard to grant of backwages. We think it apposite to reproduce the reasons ascribed by the Tribunal : "9. The applicant shall be deemed to be in service even after 30th April 1993. His letter dated 7-1-1993 as well as the order of the Director Food and Civil Supplies dated 29-4-1993 retiring him with effect from the afternoon of 30th April, 1993 are declared null and void. The applicant shall, therefore, be taken back on duty forthwith. As regards the pay and allowances for the period the applicant did not perform duty no such payment shall be made to him as he has performed no duty during this period. We are not ordering the payment of pay and allowances to him because the applicant himself initiated the process of his early retirement. He was not forced to submit his letter of retirement. The situation which has come to pass has developed because of his own action. He was required to study the provision of the rule before writing the letter dated 7-1-1993. Thus quite clearly he was a contributory factor to the situation which has arisen. The mistake no doubt got compounded because of negligence of respondent No. 2 but the applicant cannot be allowed to take advantage of failure or neglect on the part of respondent No. 2 to point out the correct rule position to him and act accordingly. There can be no undue enrichment of a Government Servant in this manner. There is no averment either in the original petition that the applicant remained unemployed or that he was not gainfully employed while he was out of Government service. Moreover, what the applicant had claimed in his letter dated 22-6-1994 to the Director placed at Annexure F was only payment of pension amounting to Rs. There is no averment either in the original petition that the applicant remained unemployed or that he was not gainfully employed while he was out of Government service. Moreover, what the applicant had claimed in his letter dated 22-6-1994 to the Director placed at Annexure F was only payment of pension amounting to Rs. 450/- if he could not be taken back in service and therefore, it is not understood how he can lay claim for payment of full pay and allowances. Further although he had made a request for direction to take him back on duty immediately by way of interim relief in the original petition, but it is seen from the order-sheets of the case that at no point of time he pressed for his interim relief. His application was also dismissed by the Tribunal vide the order which has been sought to be reviewed. In view of the above position it would not be proper to saddle the respondents with payment of pay and allowances for the period the applicant has remained out of service. The applicant had in his aforesaid letter dated 22-6-1994 prayed in the alternative to grant of pension, reinstatement in service after treating his period of absence from duty from 1-5-1993 as leave without pay. Therefore, for the period the applicant has remained out of service such leave, extra-ordinary leave or leave not due, etc. as may be admissible under the leave rules shall be sanctioned by the respondents." 2. Being aggrieved with denial of backwages the petitioner has visited this Court. 3. It is apposite to mention here that the State Government felt aggrieved by the order passed in review and approached this Court in Writ Petition No. 973/2000. A Division Bench of this Court dismissed the same. In paragraph 5 of its order dated 28-2-2000 the Bench spoke thus :- "5. No fault can be found with the order as an application submitted in terms of Rule 42 of the M.P. Civil Service (Pension) Rules, 1976 could not be allowed by the Director before completion of 20 years of service. The Director had no right to allow such application before completion of 20 years of service. The application was not in the prescribed Form 28. The Director had no right to allow such application before completion of 20 years of service. The application was not in the prescribed Form 28. Since the respondent had not used the word 'resignation' in his letter dated 7-1-1993 it was clear that he was intending to resign but he intended to retire with the retiral benefits with proportionate pension. As a matter of fact, the Director also had passed an order of pension applying Rule 42. Thus, the order dated 29-4-1993 retiring the respondent No. 1 in terms of Rule 42 of the Pension Rules was rightly set aside. No error is committed by the Tribunal in reviewing its earlier order dated 13-9-1996. The Tribunal undisputedly has the jurisdiction to review its order. No jurisdictional error is pointed out nor any infirmity warranting interference by this Court is made out. The Tribunal has ordered that the respondent No. 1 be taken back in service. It has disallowed backwages for the period during which the petitioner had not rendered service. Thus, no prejudice is caused to the government on that count. It was a case of wrong application of Rule 42 by the Director of Food and Civil Supplies." 4. We have only referred to the aforesaid order to show that the order passed in review by the Tribunal was accepted by the Division Bench of this Court. 5. Mr. J. P. Agrawal, learned counsel for the petitioner, has submitted that the refusal of backwages by the Tribunal is absolutely indefensible, more so, when the Tribunal has itself arrived at the conclusion that the order retiring him with effect from after noon of 30th April, 1993 was null and void. It is submitted by him that when the authorities had erred in law they cannot take advantage of their own fault and the petitioner cannot be put in a stage of jeopardy by denial of dues to which he is entitled. The bolster his submission he has placed reliance on the decision rendered in the case of Union of India and another vs. Shri Babu Ram Lalla, AIR 1988 SC 344 , Union of India vs. K. V. Jankiraman etc. etc., AIR 1991 SC 2010 and Kanhiyalal Rawal vs. State of Madhya Pradesh and others, (1999) (1) JLJ 381. 6. Per contra, Mr. etc., AIR 1991 SC 2010 and Kanhiyalal Rawal vs. State of Madhya Pradesh and others, (1999) (1) JLJ 381. 6. Per contra, Mr. S. K. Yadav, learned Government Advocate has submitted that once this Court has given the stamp of approval to the order passed by the Tribunal the present writ petition is not maintainable. It is also submitted by him that when the petitioners had expressed his desire seeking retirement and the Director acted on the said application, the claim of backwages would be conferring a premium on the petitioner which the law does not countenance. It is further proponed by him that the Tribunal has given adequate and cogent reasons while denying the petitioner the privilege of backwages and, therefore, this Court in exercise of power of superintendence should not overturn the same. 7. To appreciate the rival submissions raised at the Bar we have bestowed our anxious consideration and perused the order passed by the Tribunal on both the occasions. On first occasion while dealing with the original application the Tribunal was of the view that the same did not merit any consideration. The petitioner did not assail the said order and filed an application for review. The review has been accepted by the Tribunal on different grounds. We are not going to dwell upon the justifiability of the order passed in review because the same has been treated impeccable by the Division Bench of this Court. Submission of Mr. Yadav is that when the order is affirmed the present writ petition is not tenable inasmuch as if this Court would grant backwages it would run contrary to the previous order and, more so, when the order has been finally put to rest in W. P. No. 973/2000 and, therefore, the same is not subject to assail by the present petitioner. We are not impressed by the aforesaid submission of learned Government Advocate. It is worth mentioning that the writ petition was dismissed at the stage of admission. The petitioner was not noticed. What was challenged before this Court is the recall of the order passed in Original Application and the direction of reinstatement of the incumbent to his original post. As far as that aspect is concerned that lis was put to rest in the earlier writ petition. The petitioner was not noticed. What was challenged before this Court is the recall of the order passed in Original Application and the direction of reinstatement of the incumbent to his original post. As far as that aspect is concerned that lis was put to rest in the earlier writ petition. As far as the grievance of the present petitioner is concerned it cannot be said that shutters were closed qua his grievance. Hence, we conclude and hold that the present writ petition is maintainable. 8. Coming to the relief claimed by the petitioner it is noticeable that the petitioner himself had submitted that the he was ignorant about the Rules and had not exercised his right with care and due deligence. The fact remains that he submitted an application for resignation. True it is, the petitioner had submitted an application for voluntarily retirement and not for any other purpose. The Tribunal considering the totality of circumstances came to hold that the incumbent had used the words "voluntary retirement" and the same was accepted in those terms by the competent authority. When the question of grant of pension arose and audit objection was raised the petitioner wanted to withdraw his application. Keeping this aspect in view the Tribunal thought it apposite to hold that the notice being void, the whole action was null and void and accordingly, directed for reinstatement. While so directing, as has been indicated hereinbefore, the Tribunal ascribed ample reasons for denying the backwages to the petitioner. 9. The core question that falls for consideration is whether the Tribunal is justified in denying the backwages to the petitioner. Mr. Agrawal has commended us to the decision rendered in the case of Shri Babu Ram Lalla (supra) wherein two Judge Bench of the Apex Court concurred with the view recorded by the High Court on the ground that High Court had declared the order of termination of service as a nullity and directed the payment of backwages on the ground that he should be deemed to be continuing in service and the void order was never in existence in the eye of law. The learned counsel has also drawn the inspiration from the decision rendered in the case of K. V. Jankiraman (supra) wherein three Judge Bench of the Apex Court came to hold that the concept of "no work no pay" is not applicable to the case where the employee although is willing to work is kept away from work by the authorities for no fault of his. Reliance is also placed on an unreported decision rendered in L.P.A. No. 194/1996 (Pawan Kumar Shrivastava vs. Municipal Corporation Jabalpur), wherein similar view has been expressed by a Division Bench of this Court. At this juncture, we may state that in the case of K. V. Jankiraman (supra) the Apex Court was dealing with the case of promotion. As far as decision rendered in the case of Shri Babu Ram Lalla (supra) is concerned stamp of approval was given to the view taken by the High Court and the fact situation is quite distinguishable. In this context we may profitably refer to the decision rendered in the cases of The Managing Director, U. P. Warehousing Corporation and others vs. Vijay Narayan Vajpayee, AIR 1980 SC 840 , Managing Director, ECIL, Hyderabad vs. B. Karunakar, etc. etc., AIR 1994 SC 1074 and State of U. P. and another vs. Ved Pal Singh and another, AIR 1997 SC 608 . In all these the matter was left to the department as the order of dismissal was set aside. We have referred to the aforesaid decisions for the simon pure reason that Mr. Agrawal has pressed while contending that the petitioner is entitled to get the backwages once the order of retirement is declared null and void. The present factual matrix exposits a total different scenario. It cannot be said that the petitioner was not at fault and he had not invited the order of acceptance of voluntary retirement. He did play a positive part and when the question of grant of pension arose and when the same was denied to him he approached the Tribunal. In our considered view the Tribunal has given cogent reasons which are germane to the issue. This was not a case where an order of termination simpliciter or an order of removal was set aside the same being totally bad in law. It is a case where the petitioner intended to avail the privilege of voluntary retirement. In our considered view the Tribunal has given cogent reasons which are germane to the issue. This was not a case where an order of termination simpliciter or an order of removal was set aside the same being totally bad in law. It is a case where the petitioner intended to avail the privilege of voluntary retirement. True it is, the authority should not have accepted the same but the petitioner only woke up when his pension was not paid. In view of the facts and circumstances of the case we find that there is no error or infirmity in denying the backwages to the petitioner, and accordingly we experience no difficulty in affirming the order passed by the Tribunal. 10. In course of hearing of this case it was submitted by Mr. Agrawal that despite of the order passed by the Tribunal the petitioner was not allowed to join though he had submitted his joining report. The State Government has assailed the order of Tribunal in W. P. No. 973/2000 which face dismissal vide order dated 28-2-2000 and Mr. S. K. Yadav, learned Government Advocate, is not in a position to answer why the petitioner was not allowed to join. Unless there is order of stay from any Court, in all circumstance, the petitioner should have been allowed to join. Hence, we are inclined to direct that if the petitioner submits his joining report before the competent authority the same should be accepted within a period of four weeks. We may hasten to add that this direction is subject to the fact that the petitioner has not reached the age of superannuation. We say so because Mr. Agrawal is not able to tell us whether the petitioner had reached the age of superannuation or not. Mr. Agrawal has also prayed that as the petitioner has not been allowed to join no salary has been paid to him. In view of the aforesaid submission we are inclined to direct that he shall receive the salary from 21-9-1999. If there would be any factual variation it will be open to the respondents to seek variation/modification of the order. 10-A. The writ petition is accordingly disposed of without any order as to costs.