Ram Chandra Khatri v. Barmer Central Co-Operative Bank Ltd.
2004-07-08
B.PRASAD
body2004
DigiLaw.ai
Honble PRASAD, J.–Heard the learned counsel for the parties. (2). Learned counsel for the petitioners submits that where there is no prescription of the period for acceptance of voluntary retirement, the period prescribed in the notice of voluntary retirement should be deemed to be the period for accepting the voluntary retirement and communicating the reasons. He places reliance on Tek Chand vs. Dile Ram wherein, Honble Supreme Court was dealing with a case where the rule provided for acceptance of the application within the period prescribed in the rule. Admittedly, there is no such rule in the statute book which will govern the case which is being decided by the present judgment. (3). Learned counsel for the petitioner further submits that where there is no prescription of limit in the rule, the respondents cannot be permitted to inflate the time period for an unlimited period. There has to be some reasonableness in the process. There has to be a reasonable time gap in between notice and its acceptance. There had been a total lack of concern by the respondents in dealing with the application and it was only after a period of two months that the application was rejected after citing reasons as communicated to the petitioner. (4). Learned counsel for the petitioner further submits that as and when there is no prescription of time for voluntary retirement and where, it is seen that employee has a right to retire, then in reciprocity, it should be seen that there is a right vested in the employee to fix a date on his own volition and that fixed date should be respected by the employer and his action should circumscribe by that date alone. The employer should not have the liberty of stretching and extending the date beyond the date fixed by the worker. He places reliance on a case of Dinesh Chandra Sangma vs. State of Assam & Ors. (2). The case relied upon by the learned counsel for the petitioners refers to a fundamental rule of recognizing the right in reciprocity. In the instant case, there is no such fundamental rule or rules applicable. Therefore, the citation referred to by the learned counsel for the petitioner is based on interpretation of a particular set of rules and would not govern the facts of this case. (5).
In the instant case, there is no such fundamental rule or rules applicable. Therefore, the citation referred to by the learned counsel for the petitioner is based on interpretation of a particular set of rules and would not govern the facts of this case. (5). Learned counsel emphasises that in the instant case, though rule is there, but there is no prescription of time, therefore, it inhers in itself a provision that as and when a party prescribes, that should be read into the rules and therefore, the argument of the learned counsel for the petitioner is that the date prescribed by the petitioner should be the date for defining reasons which are required to be given in the rules to the employee. (6). I have considered the argument and I am of the opinion that such reading of words in a rule is not known to the statutory interpretation because if the party concerned is permitted to add certain words in the rule, every concerned would give its own providence and as and when rule will be read, it would be read in the context of that person. The generality of the rule will be lost. It is not a correct way of interpreting a statute. A rule has to be considered in generality and not specifically enacted for a particular individual, which is sought to be canvassed by the learned counsel for the petitioner. (7). Learned counsel for the petitioner has relied on yet another case of Honble Supreme Court `Union of India & Ors. vs. Sayed Muzaffar Mir (3). Learned counsel for the petitioner when read the case, it made a mention of a statutory period prescribed in the rules itself. In the instant case, there is no prescription of any period in the rule, therefore, the facts of the case are not similar to the facts available on record. Therefore, this case will not govern the facts of the present case. (8). Learned counsel further assailed that the reasons were furnished to him after notice of the present writ petition was served on the respondent department. This only reflects that the respondent wanted to pre-empt the case of the petitioner by furnishing reasons and refusing retirement so as to deprive him of his rights. (9).
(8). Learned counsel further assailed that the reasons were furnished to him after notice of the present writ petition was served on the respondent department. This only reflects that the respondent wanted to pre-empt the case of the petitioner by furnishing reasons and refusing retirement so as to deprive him of his rights. (9). The argument of the learned counsel for the petitioner does not go beyond any reasoning because service of notice was in no way concerned with the right of the employer to furnish reasons in the light of the rules. If the employer was duty bound by the rules to communicate refusal to the petitioner, it was bound to communicate reasons and it can only be seen that statutory obligation was discharged by the employer which cannot be seen to be in any way triggered by the fact of service of notice. (10). Learned counsel further assailed the merits of the reasons and according to the learned counsel, reasons are contradictory. To elaborate the point that the reasons are contradictory, learned counsel for the petitioner submits that one of the reasons given was that notice of sufficient time was not given. Learned counsel submits that there was no time prescribed in the regulations, therefore, this reason being said that notice of sufficient time was not given is a mere camouflage. The applications were filed by the petitioner in the month of October and sufficient time was available until 30th November to furnish reasons but without utilising the time granted, the respondents kept on hovering around and did not communicate reasons. Thus, a serious prejudice has been caused to the petitioner. The reasons can only be assigned by the Management Committee as per statutory prescription. The Management committee has not gone into the framing of reasons. The reasons have been communicated on its own volition by the Dy. Manager (Administration) who is the signatory of the order communicating reasons and deciding the application. (11). Learned counsel submits that one of the reasons given is that there are no sufficient officers in the bank, therefore, voluntary retirement is not granted. While giving this reason, they have given the petitioner a notice that why his services be not terminated. Thus, by respondents own conduct it is clear that they wanted to curtail the personnels from service. This kind of contradiction cannot be appreciated. (12). I have given by thoughtful consideration.
While giving this reason, they have given the petitioner a notice that why his services be not terminated. Thus, by respondents own conduct it is clear that they wanted to curtail the personnels from service. This kind of contradiction cannot be appreciated. (12). I have given by thoughtful consideration. I am of the considered opinion that voluntary retirement is on different consideration and termination is on different consideration. Even if there are no sufficient work force available, if an incompetent or a in-disciplined employee is there, then work force has to be considered in that light and the erring officer has to be terminated notwithstanding the fact that sufficient number of hands are not available. Therefore, this argument loses its validity by its own weight. (13). Learned counsel further submits that the act of respondents is non-judicious because the allegations pertained to period 1995-96. The notice has been given in 2002. For all the years, the respondents have kept silent and notice has only been given to deprive the petitioner of pensionary benefits and for that the entire story has been put up. (14). Learned counsel for the petitioner has relied on a decision of Honble Supreme Court in `Manjushree Pathak vs. The Assam Industrial Development Corporation Ltd. & Ors (4). Learned counsel for the petitioner submits that the Honble Supreme Court deprecated the practice of deciding such applications belatedly. The case has been read to me in extension. Honble Supreme Court in this case has considered the question of option and petitioner therein had sought retirement with immediate effect which was a provision in the rules. In the instant case, there is no provision for retiring an employee with immediate effect. On the contrary, as law stands, an employee has a right to withdraw voluntary retirement. If the argument of the learned counsel for the petitioner is accepted and reasons are conveyed before the date prescribed by the employee then, he has an option of withdrawing his application for voluntary retirement leaving the employer high and dry and getting their version disclosed. Thus, if delay has been caused by the respondents in communicating reasons after the date fixed by the petitioner, then it cannot be said that the law laid down by Honble Supreme Court in Manjushree Pathak (supra), governs the facts of this case. (15).
Thus, if delay has been caused by the respondents in communicating reasons after the date fixed by the petitioner, then it cannot be said that the law laid down by Honble Supreme Court in Manjushree Pathak (supra), governs the facts of this case. (15). Learned counsel for the respondents has referred to a provision contained in the Scheme for voluntary retirement which provides that if any clause of the present scheme requires interpretation in the event of there being confusion or dispute, the matter was required to be referred to the Registrar, Co- operative Department. In the instant case, no such reference was invoked by the petitioner and he has straight way rushed to this court, therefore, the writ petition is not maintainable. (16). The argument has weight. Having not gone to the Registrar and rushing to this court, the writ petition is not maintainable. Learned counsel for the petitioner per contra submitted that since, this writ petition involves certain amount of interpretation of the Scheme itself, therefore, he had not approached the Registrar. (17). I have considered the rival submissions. The interpretation too was a matter which the Registrar could have made and in view of the fact that there is an alternative redressal provided in the Scheme itself, coming straightway to this court in writ petition may be said to be an act of haste and cannot be appreciated and the petition is non-suited on this ground that he had alternative redressal to approach the Registrar. Having not done so, the writ petition is not maintainable and is hereby dismissed.