A. PURSHOTTAM VADHER v. PHYSICAL RESEARCH LABORATORY
2005-03-29
AKIL KURESHI
body2005
DigiLaw.ai
AKIL KURESHI, J. ( 1 ) IN this petition Rule was issued on 2-4-2004 and ad-interim relief staying the order relieving the petitioner from the post of assistant Administrative Officer was granted. Thus, the petition was placed before this Court for consideration of confirmation/vacation of interim relief. At the joint request of the learned Advocates appearing for both the sides, however, the petition was heard for final disposal from time to time. Accordingly, I have heard the learned Advocates appearing for the parties at considerable length. ( 2 ) IN this petition, the petitioner has challenged the action of the respondents in not permitting him to withdraw his notice of voluntary retirement. In particular, the petitioner has prayed for a direction to quash and set aside the order dated 5-1-2004 passed by the respondents by which the notice of voluntary retirement given by the petitioner on 5-1-2004 was accepted. ( 3 ) SHORT facts leading to the present petition are that the petitioner, who is working as Assistant Administrative Officer with the respondent No. 1, i. e. , physical Research Laboratory, had sent a notice of voluntary retirement on 5-1-2004. The petitioner had by then put in more than 30 years of service with the respondents, having been appointed as a clerk on 16-9-1972. The petitioner received his due promotions from time to time and was lastly promoted as Assistant Administrative Officer on 1-9-1992. 3. 1 It is the case of the petitioner that in his service career of more than 30 years, he has not received any adverse remark nor has he been served with any charge-sheet by the respondents. The petitioner has further stated in his petition that in the year 2001, there was some harassment to the petitioner by the respondent No. 2 and he was subjected to mental harassment. He was also overlooked for the post of Administrative Officer for which the petitioner approached this Court by filing Special Civil Application No. 9355 of 2002, which petition is admitted and is pending for final disposal. 3. 2 On account of the mental disturbance and frustration that the petitioner felt due to harassment, he gave a notice for voluntary retirement on 5th January, 2004. In the said notice of voluntary retirement, the petitioner indicated that he may be relieved from 5th April, 2004.
3. 2 On account of the mental disturbance and frustration that the petitioner felt due to harassment, he gave a notice for voluntary retirement on 5th January, 2004. In the said notice of voluntary retirement, the petitioner indicated that he may be relieved from 5th April, 2004. The respondents accepted the request of the petitioner for being permitted to retire voluntarily on the same day and by an office order dated 5th January, 2004, accepted the notice of voluntary retirement. It was provided in the said order that he will be relieved from service with effect from 6th April, 2004. 3. 3 Almost immediately thereafter on 13th January, 2004, the petitioner sought permission to withdraw his notice for voluntary retirement. In his letter dated 13th January, 2004, seeking withdrawal of his voluntary retirement, the petitioner conveyed to the authorities that due to his personal and family reasons he is not in a position to seek voluntary retirement, and he therefore, withdraws the notice dated 5th January, 2004, with immediate effect. He further requested that the office order dated 5th January, 2004, accepting his notice of voluntary retirement be treated as cancelled. He also indicated that he hopes for positive approval so that he would be able to look after his old parents, wife and daughter and that due to his mistake they may not suffer. He requested that his application be considered on humanitarian ground. 3. 4 Since, the petitioner did not hear anything from the respondents in this regard, he made a further detailed representation on 11th February, 2004, in which he highlighted the work done by him and also pointed out the unfair treatment meted out to him. 3. 5 On 8th March, 2004, the petitioner wrote yet another letter to the director-P. R. L. In the said letter dated 8th March, 2004, the petitioner pointed out that he has already withdrawn his notice of voluntary retirement dated 5th january, 2004, by his subsequent letter dated 13th January, 2004. He requested that he may be continued in service till the age of superannuation so that he may be able to look after his old parents, wife and unmarried daughter as there is no other earning member in the family.
He requested that he may be continued in service till the age of superannuation so that he may be able to look after his old parents, wife and unmarried daughter as there is no other earning member in the family. He pointed out to the authorities that as per the decision of the Honble Supreme Court even if the notice of voluntary retirement is accepted by the employer, it is open for the employee to withdraw his request before actual date of his retirement. He, therefore, once again reiterated his request for being permitted to withdraw his notice of voluntary retirement and that he should be permitted to continue in service beyond 5th april, 2004. 3. 6 When the petitioner did not receive any communication from the respondents and finding that he would be made to retire with effect from 6th april, 2004, he approached this Court by filing present petition, challenging the action of the respondents in not accepting his request for permitting him to withdraw the notice of voluntary retirement as mentioned above. ( 4 ) IN response to the notice issued by this Court, respondents have appeared and filed affidavit-in-reply. In the affidavit-in-reply dated 28th April, 2004, filed by the respondents, it is contended that after the petitioner having given the notice of voluntary retirement which was also accepted by the respondents, it is always the discretion of the respondents whether to sanction the withdrawal of such a notice or not. It is stated that if on overall consideration, the Director of P. R. L. , comes to the conclusion that the withdrawal is not required to be permitted, the said notice would become effective and the petitioner cannot contend that since he has withdrawn the notice of voluntary retirement, he must be continued in service beyond 6th April, 2004. It is also contended in the said affidavit that P. R. L. had constituted a three-member committee to look into the matter and they reported that the Director of P. R. L. should take a decision consistent with the rules. It is further stated that the Director on 16th march, 2004, after applying his mind and having considered the case of the petitioner came to the conclusion that this is not a fit case in which employee should be permitted to withdraw his notice of voluntary retirement.
It is further stated that the Director on 16th march, 2004, after applying his mind and having considered the case of the petitioner came to the conclusion that this is not a fit case in which employee should be permitted to withdraw his notice of voluntary retirement. It is also stated that the Director received representation from the Union on humanitarian and medical grounds, which was also considered on 22nd March, 2004. It is further contended that as per Rule 48a of Central Civil Service (Pension) Rules, 1972, once voluntary retirement notice of the employee is accepted, such decision is final and cannot be challenged by way of writ petition and the employee is precluded from withdrawing his notice, except with specific approval of such authority made before the intended date of retirement. It is, therefore, contended that there is no absolute right to the petitioner to withdraw the notice of voluntary retirement and he is precluded from withdrawing the same without the permission of the Director. ( 5 ) THE petitioner has filed affidavit-in-rejoinder and reiterated the stand taken in the petition. ( 6 ) AFTER some arguments on earlier occasion, learned Counsel for the respondents had sought adjournment for filing further affidavit to place on record, the material with respect to the decision of the respondents to withhold the permission to withdraw the notice of voluntary retirement. Accordingly, a further affidavit-in-rejoinder has been filed on behalf of the respondents on 28th March, 2005. In the said affidavit-in-rejoinder, it is reiterated that under Rule 48a of central Civil Service (Pension) Rules, 1972, an employee is normally precluded from withdrawing the notice except with the specific approval of the Director. It is contended that the Director has bona fide thought that there must be some exceptional circumstances which necessitate grant of special permission by him. It is stated that going through the papers, especially the notice of V. R. S. and withdrawal notice, the Director did not find any exceptional reasons for allowing the withdrawal. It is stated that only reason for seeking withdrawal was that there was some family reason and no details in this regard have been spelt out by the petitioner.
It is stated that going through the papers, especially the notice of V. R. S. and withdrawal notice, the Director did not find any exceptional reasons for allowing the withdrawal. It is stated that only reason for seeking withdrawal was that there was some family reason and no details in this regard have been spelt out by the petitioner. It is stated that the Director thought that allowing such withdrawal without any specific reason being mentioned or otherwise, it would set a bad precedent and that the P. R. L. has followed uniform policy that unless exceptional circumstances are made out the permission to withdraw such notice should not be granted. It is stated that such practice is followed in the past also. Along with the said affidavit, the respondents have produced a copy of the extract of the office file containing the notes of the committee constituted by the Director to examine the request of the petitioner. Upon perusal of the said notings, it appears that the committee did not make any recommendations in this regard and left the issue to be decided by the Director consistent with the Central Civil Service (Pension) Rules, 1972, and past decision if any on similar cases. The Director has made a noting that "having considered all aspects of the subject-matter and having applied my mind to Shri Vadhers case, I find this not a fit case for allowing withdrawal of V. R. S. " This noting appears to have been made on 16th March, 2004. On 22nd March, 2004, further notings by the Director record that "further on 22nd March, 2004, the employees union pleaded his case on humanitarian and medical grounds. " The Directors views on this representation of the Union have not been recorded in file. ( 7 ) ON the basis of the above narrated pleadings, the learned Advocates appearing for both the sides have made detailed submissions. ( 8 ) LEARNED Advocate Mr. Shalin Mehta appearing for the petitioner vehemently argued that the petitioner had tendered his notice of voluntary retirement on account of the mental disturbance and frustration that the petitioner felt while discharging his duties. In the notice of voluntary retirement itself, it was made clear that the intended date of retirement would be 5th April, 2004.
Shalin Mehta appearing for the petitioner vehemently argued that the petitioner had tendered his notice of voluntary retirement on account of the mental disturbance and frustration that the petitioner felt while discharging his duties. In the notice of voluntary retirement itself, it was made clear that the intended date of retirement would be 5th April, 2004. He further submits that immediately the said notice was accepted by the respondents, however, shortly thereafter on 13th January, 2004, the petitioner for valid reasons sought permission to withdraw the notice of voluntary retirement. He submits that the petitioner had made out good grounds for being granted such permission and when the petitioner had sought withdrawal of his notice without wasting any time and well before the date of his actual retirement, the respondents should have permitted the petitioner to withdraw his request for voluntary retirement. He submits that the respondents gravely erred in ignoring the request of the petitioner without any valid reasons. 8. 1 Learned Counsel Mr. Mehta also submits that the respondents have not applied their mind to the grounds raised by the petitioner for requesting withdrawal of the notice of voluntary retirement. He submits that in the affidavit- in-reply no material has been placed by the respondents to ignore the request of the petitioner nor is there any material available on files, extract of which has been produced along with the further affidavit-in-rejoinder by the respondents. He submits that to refuse the request of the petitioner, the respondents had to have strong reasons and valid grounds. He submits that though it was the discretion of the authorities whether to accept such request or not, such discretion cannot be exercised arbitrarily and as has been held by the Honble Supreme court in number of decisions, the germane question was whether there were any grounds to decline the request of the petitioner to withdraw the notice of voluntary retirement. 8. 2 Counsel for the petitioner has placed reliance on number of decisions of the Honble Supreme Court, reference to which will be made slightly later. ( 9 ) APPEARING for the respondents, learned Senior Advocate Mr. Sanjanwala submits that the respondents were well within their rights to refuse permission to withdraw the notice of voluntary retirement.
8. 2 Counsel for the petitioner has placed reliance on number of decisions of the Honble Supreme Court, reference to which will be made slightly later. ( 9 ) APPEARING for the respondents, learned Senior Advocate Mr. Sanjanwala submits that the respondents were well within their rights to refuse permission to withdraw the notice of voluntary retirement. He submits that there is no absolute right available to the petitioner to withdraw the notice of voluntary retirement once the same was accepted by the competent authority. He submits that once such notice was accepted by the authorities, it was only with the specific permission of the Director that such a notice could have been withdrawn and in fact, Rule 48a of Central Civil Service (Pension) Rules, 1972, makes it clear that the petitioner was precluded from withdrawing his notice of voluntary retirement without the prior permission of the authorities. He further submits that the Director has applied his mind to all aspects of the matter and come to a just conclusion and the exercise of discretionary power, therefore, should not be interfered with by this Court. 9. 1 Learned Counsel for the respondents also submits that there was sufficient material on record to demonstrate that the decision of the Director is just and proper and that when the Director is vested with discretionary powers exercise of such discretionary powers should not be interfered with by the Court since the decision of the Director is bona fide and based on material available on record. 9. 2 Learned Counsel for the respondents places reliance on the decision of the Honble Supreme Court in the case of P. Lal v. Union of India and ors. , reported in 2003 (3) SCC 393 , in support of his contention that it is not open for the petitioner at this stage to withdraw the notice of voluntary retirement. 9. 3 Reliance is also placed on the decision of the Honble Supreme Court in Bank of India and Ors. v. O. P. Swarnakar and Ors. , reported in 2003 (2) scc 721 and on the decision of the Supreme Court in the case of State Bank of Patiala v. Phoolpati, reported in 2005 (2) Scale 378 , for the same purpose. We will advert at some length to these decisions at a slightly later stage.
v. O. P. Swarnakar and Ors. , reported in 2003 (2) scc 721 and on the decision of the Supreme Court in the case of State Bank of Patiala v. Phoolpati, reported in 2005 (2) Scale 378 , for the same purpose. We will advert at some length to these decisions at a slightly later stage. ( 10 ) BEFORE analysing the facts on record any further, it would be useful to notice some of the decisions of the Honble Supreme Court including those relied upon by the Counsel for the petitioner, which would have bearing on the issues arising in the present petition. Even before that, however, it would be necessary to take note of provisions of Rule 48a of Central Civil Service (Pension) Rules under which the petitioner had tendered his notice of voluntary retirement and under which his request for withdrawing the same was rejected by the respondents. Rule 48a of the said Rules reads as under :"48-A. Retirement on completion of 20 years qualifying service : (1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. Provided that this sub-rule shall not apply to Government servant, including scientist or technical expert who is - (i) on assignments under the Indian Technical and Economic Co-operation (I. T. E. C.) Programme of the Ministry of External Affairs and other aid programmes. (ii) posted abroad in foreign based offices of the Ministries/departments. (iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year. (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority : provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3) Deleted.
(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority : provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3) Deleted. (3-A) (a) A Government servant referred to in sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor; (b) On receipt of a request under clause (a), the appointing authority subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. (4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority : provided that the request for withdrawal shall be made before the intended date of his retirement. (5) The pension and (retirement gratuity) of the Government servant retiring under this rule shall be based on the emoluments as defined under Rules 33 and 34 and the increase not exceeding five years in his qualifying service shall not entitle him to any notional fixation of pay for purposes of calculating pension and gratuity. (6) This rule shall not apply to a Government servant who - (a) retires under Rule 29, or (b) retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. Explanation :- For the purpose of this rule the expression "appointing authority" shall mean the authority which is competent to make appointments to the service or post from which the Government servant seeks voluntary retirement. " ( 11 ) IN the case of Union of India and Ors.
Explanation :- For the purpose of this rule the expression "appointing authority" shall mean the authority which is competent to make appointments to the service or post from which the Government servant seeks voluntary retirement. " ( 11 ) IN the case of Union of India and Ors. v, Gopal Chandra Misra and ors. , reported in 1978 (2) SCC 301 , the Honble Supreme Court observed that the question of withdrawal of resignation arises only if the resignation is to be accepted by the employer because so long as a resignation is not accepted it remains incomplete and ineffective. It was further observed that in absence of anything to the contrary in the provisions governing the terms and conditions of the office or post, an intimation in writing sent to the competent authority by the incumbent of his intention or proposal to resign his office or post from future specified date can be withdrawn at any time before it becomes effective, i. e. , before it affects termination of tenure of the office or post or employment. ( 12 ) IN the case of Balram Gupta v. Union of India and Anr. , reported in 1987 (Supp) SCC 228, the Honble Supreme Court observed that the employee can seek withdrawal of notice of voluntary retirement at any time before retirement becomes effective and that while considering such a request of the employee, what is to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the employer from withholding the withdrawal. It was further observed in that case that the employee was at a liberty and entitled independently without sub-rule (4) of Rule 48a of the central Civil Service (Pension) Rules, 1972, as a Government servant, to withdraw his notice of voluntary retirement since in this respect it stands at par with the letter of resignation. In the said decision, the Honble Supreme court on the facts of the case came to the conclusion that the appellant-employee had made out a case for being permitted to withdraw his notice of voluntary retirement even in the parameters of the guidelines which provided that ordinarily the permission should not be granted unless the officer concerned is in a position to show that there has been material change in the circumstances in consideration of which the notice was originally given.
The appellant had stated that on the persistent and personal requests of the staff members, he had dropped the idea of seeking voluntary retirement. The Honble Supreme Court observed that the same would amount to good and valid reason. In Paragraphs 12 and 13 of the said decision, the Honble Supreme Court made following observations :"12. In this case, the guidelines are that ordinarily permission should not be granted unless the officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case, such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age, we should not put embargo upon peoples choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellants offer to retire and withdrawal of the same happened in such quick succession that it cannot be said that any administrative set-up or arrangement was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this the respondent is to blame and not the appellant. ( 13 ) WE hold, therefore, that there was no valid reason for withholding the permission by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in government service and induced the appellant to withdraw the notice.
We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in government service and induced the appellant to withdraw the notice. In the modern and uncertain age, it is very difficult to arrange ones future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The Court cannot but condemn circuitous ways "to ease out" uncomfortable employees. As a model employer, the Government must conduct itself with high probity and candour with its employees. " 13. The said view of the Honble Supreme Court in the case of Balram gupta (supra) was reiterated in the decision of J. N. Srivastava v. Union of india and Anr. , reported in 1998 (9) SCC 559 . It was held that even if voluntary retirement notice is moved by an employee and the same notice is accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus penetentiae to withdraw the proposal for voluntary retirement. ( 14 ) IN the decision of Shambhu Murari Sinha v. Project and Development india and Anr. , reported in 2000 (5) SCC 621 also, this view was followed by the Honble Supreme Court. In the said case, the employee had by an application dated 18-10-1995 sought permission to voluntarily retire, which was accepted by a letter dated 30th July, 1997, with an intimation that "release memo along with total particulars will follow. " On 7-8-1997, the employee withdrew his notice of voluntary retirement, he was, however, relieved on 26-9-1997. It was held by the Honble Supreme Court that effective date of retirement was of 26-9-1997 and the employee had withdrawn the notice of retirement before that date, which was permissible under the law. ( 15 ) IN the decision of Shambhu Murari Sinha v. Project and Development india and Anr.
It was held by the Honble Supreme Court that effective date of retirement was of 26-9-1997 and the employee had withdrawn the notice of retirement before that date, which was permissible under the law. ( 15 ) IN the decision of Shambhu Murari Sinha v. Project and Development india and Anr. , reported in 2002 (3) SCC 437 , the Honble Supreme Court once again followed the said ratio laid down in the case of Balram Gupta (supra) and upheld the right of the employee to seek withdrawal of voluntary retirement before the effective date of retirement. ( 16 ) IN the case of Balbir Singh Negi v. Union of India and Ors. , reported in 1996 (8) SCC 283 , the Honble Supreme Court noted the decision of Balram gupta (supra) in which it is held that a Government servant after making an application but before it becomes effective and the relationship of master and servant ceases to operate, is entitled to withdraw the resignation. ( 17 ) IN the case of Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, reported in 1997 (4) SCC 280 , the Honble Supreme Court observed that relationship of master and employee continues till employee is relieved of the duty after acceptance of offer of voluntary retirement or resignation. ( 18 ) IN the case of Nand Keshwar Prasad v. Indian Farmers Fertilizers Cooperative ltd. and Ors. , reported in 1998 (5) SCC 461 , the Honble Supreme court observed that unless controlled by conditions of service or statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It is held by the Supreme Court that it is open to the employee concerned to withdraw the letter of resignation before the same becomes effective. ( 19 ) IN the decision of Union of India and Anr.
It is held by the Supreme Court that it is open to the employee concerned to withdraw the letter of resignation before the same becomes effective. ( 19 ) IN the decision of Union of India and Anr. v. Wing Commander T. Parthasarthy, reported in 2001 (1) SCC 158 , the Honble Supreme Court observed that where resignation is to have effect from a future date, it can be withdrawn at any time before that date and in absence of any contrary statutory provisions or rule, right to withdraw resignation cannot be denied merely on the basis of any policy decision of the Government. ( 20 ) ONE may now consider the decisions relied upon by the learned Counsel for the respondents. 20. 1. In the decision of Bank of India and Ors. v. O. P. Swarnakar and ors. , reported in 2003 (2) SCC 721 , reliance on which is sought to be placed by the respondents also, the Honble Supreme Court held that it is permissible for the employee to withdraw the offer for voluntary retirement before his option is accepted by the Bank, since the scheme requires a decision on such option to be taken by the authority concerned and the employer-employee relationship would continue till the employers acceptance of the employees offer. One may notice that in the said decision, the Honble Supreme Court was considering the scope of the rights of the employees under the voluntary retirement scheme formulated by the Bank. 20. 2 On behalf of the respondents reliance was also placed on the decision of P. Lal v. Union of India, reported in 2003 (3) SCC 393 . Facts involved in the said decision were vitally different. In the said case, the employee had requested to allow him to retire with immediate effect by his letter dated 5-5-1993. The Government accepted his request on 2-3-1995 and retired him with effect from May, 1993. The Government had also promoted another employee in his place. On 18-4-1995, the employee sought permission to withdraw his request for voluntary retirement. On 20-6-1995, the Government disallowed his request. However, subsequently the Government permitted him to withdraw his request by an order dated 14-8-1997. This order of the government was challenged by one Shri P. Lai who was promoted against the post vacated by the employee. The Supreme Court held that Shri P. Lal would be the person aggrieved.
On 20-6-1995, the Government disallowed his request. However, subsequently the Government permitted him to withdraw his request by an order dated 14-8-1997. This order of the government was challenged by one Shri P. Lai who was promoted against the post vacated by the employee. The Supreme Court held that Shri P. Lal would be the person aggrieved. While upholding the challenge of Shri P. Lal to the order of the Government dated 14-8-1997, the Honble Supreme Court observed that an employee can withdraw his application for voluntary retirement before the effective date. The effective date would necessarily be the date on which the retirement takes effect. In that case, it was found that the employee had requested for being permitted to retire with effect from 5-5-1993. He has also deposited three months notice pay along with the Government. His request was accepted by the Government. It was, therefore, observed that once relationship of master and servant had been severed and/or terminated, by back-door method, the servant could not get back to service and the order of the Government cannot be sustained. Thus, the facts involved in this decision being vitally different, ratio laid down therein has no application to the facts of the present case. 20. 3 For the same reasons, ratio laid down in the decision of the State bank of Pariala v. Phoolpati (supra) would not apply in the present case. In the said decision before the Honble Supreme Court the employee concerned had submitted his resignation to the Bank requesting its acceptance with effect from 1-3-2004, which was received by the Bank on 8-1-2002. On 4-2-2002, he sought to withdraw his resignation stating that at the time of writing the letter he was seriously ill and mentally disturbed. Despite demanded from the bank he did not produce any documents in support thereof. In fact, on 4-3- 2002 he reiterated his request for accepting his resignation. He was relieved from service on 5-3-2002. He expired on 8-6-2002. On 12-8-2002, his wife accepted the service benefits. Subsequently, petition was filed by her before the High Court contending that relieving her husband from Banks service was illegal. Her stand was not uphold by the Honble Supreme Court.
He was relieved from service on 5-3-2002. He expired on 8-6-2002. On 12-8-2002, his wife accepted the service benefits. Subsequently, petition was filed by her before the High Court contending that relieving her husband from Banks service was illegal. Her stand was not uphold by the Honble Supreme Court. ( 21 ) FROM the above discussion, it can be seen that it is the consistent view of the Honble Supreme Court that even after giving a notice of voluntary retirement, and even after the same is accepted by the employer, it is open for the employee to seek withdrawal of such a notice before the actual date of his retirement. Such a request would have to be governed by the service regulations in this regard and the notice for voluntary retirement can be withdrawn with the permission of the employer if so provided under the rules. Even then, the discretion vested with the employer cannot be exercised arbitrarily and the same has to be exercised reasonably. As held in the case of Balram Gupta (supra), the question to be answered is not what prompted the desire for withdrawal but what prompted to withhold the withdrawal. As a matter of fact, in the said decision, the Honble Supreme Court considering the provisions of rule 48a of Central Civil Service (Pension) Rules, 1972, and in particular, sub-rule (4) of the said Rule 48a came to the conclusion that the employee had made out good grounds for permitting him to withdraw voluntary retirement notice when he stated in the subsequent communication that upon persistent request and persuasion by the colleagues and family members, he sought permission to withdraw his request for voluntary retirement. ( 22 ) THE right of the employees seeking voluntary retirement under voluntary retirement schemes formulated by the employees is, however, viewed somewhat differently by the Honble Supreme Court. In case of mass scale voluntary retirements through Voluntary Retirement Schemes, it is held that once the option of voluntary retirement has been given by the employee, he cannot withdraw the same after the last date for exercising such option has gone. In the decision of Vice Chairman and Managing Director, A. P. S. I. D. C. Ltd. v. R. Varaprasad, reported in AIR 2003 SC 4050 , the employees had applied for voluntary retirement. Their offer was accepted by the employer and the acceptance was communicated to the employees.
In the decision of Vice Chairman and Managing Director, A. P. S. I. D. C. Ltd. v. R. Varaprasad, reported in AIR 2003 SC 4050 , the employees had applied for voluntary retirement. Their offer was accepted by the employer and the acceptance was communicated to the employees. The Honble Supreme Court held that prayer for withdrawal of offer of voluntary retirement cannot be allowed merely because on that date employees were not relieved from service due to lack of funds and interim orders passed by the Court. 22. 1 In the case of Punjab National Bank v. Virender Kumar Goel, reported in AIR 2004 SC 3988 , the Honble Supreme Court upheld the decision of the high Court rejecting the petition of the employee who had withdrawn and utilized the amount of V. R. S. benefit deposited by the Bank and had thereafter sought permission to withdraw the option. 22. 2 In the decision of State Bank of Patiala v. Rome Chandra Kanoji, reported in 2004 AIR SCW 2108, the Voluntary Retirement Scheme gave 15 days time to employee to opt for scheme and also provided that application once made cannot be withdrawn. The Supreme Court held that the withdrawal after the date of closure of the scheme is not permissible. It was observed that the Bank needs time to ascertain its liability, it is required to find out the cost of creation of a separate fund which in turn depends on the number of applications and if the employees are permitted to withdraw after the date of closure, it would be impossible for the Bank to implement the scheme. 22. 3 The central line of reasoning appears to be that V. R. S. scheme depends on large number of factors such as budgetary sanction, and other administrative exigencies including the amount of staff to be down-sized by the employer compared to number of employees opting for the V. R. S. and the employees cannot be allowed to change their mind after the last date for seeking the V. R. S. has passed. I am taking note of this trend only to highlight that insofar as the individual requests for voluntary retirement under service regulations is concerned, the view has been consistent and there has been no change in this regard.
I am taking note of this trend only to highlight that insofar as the individual requests for voluntary retirement under service regulations is concerned, the view has been consistent and there has been no change in this regard. ( 23 ) KEEPING in mind the above judicial pronouncements, it would be required to revert back to the facts of the case and appreciate the decision of the respondents to find out whether the rejection of the request of the petitioner for withdrawal of voluntary retirement notice was justified or not. ( 24 ) AS noted earlier, the petitioner having some pressure at the work place, gave a notice of voluntary retirement on 5th January, 2004, which was also accepted by the employer on the very same day. Almost immediately thereafter, the petitioner realized his mistake in having tendered voluntary retirement notice in a hurry and on 13th January, 2004, i. e. , barely 8 days after tendering the voluntary retirement notice, approached the employer and stated that due to his personal and family reasons he is not in a position to seek voluntary retirement and that he withdraws the same with immediate effect. He requested that the order dated 5th January, 2004, accepting his notice of voluntary retirement may be treated as cancelled. He stated that his request be accepted so that he will be able to look after his old parents, wife and daughter and that due to his mistake they may not suffer. The reasons stated for withdrawal of the voluntary retirement were further elaborated by the petitioner in his subsequent letter dated 8th March, 2004. In the said letter, he stated that he may be permitted to withdraw his retirement notice on humanitarian and other grounds so that by continuing in service till the age of superannuation he may be able to look after his old parents, wife and unmarried daughter as there is no other earning member in his family. He also placed reliance on the decision of the Honble Supreme Court and pointed out that his intended date of retirement being 6th April, 2004, he may be permitted to withdraw the notice, which permission he sought well before the eventual date of retirement. The petitioner had also made representations dated 11th February, 2004, and 13th March, 2004, complaining about the treatment which was being meted out to him in the office. 24.
The petitioner had also made representations dated 11th February, 2004, and 13th March, 2004, complaining about the treatment which was being meted out to him in the office. 24. 1 The respondents, however, rejected the request of the petitioner. In the affidavit-in-reply filed on 28th April, 2004, it is stated that withdrawal of voluntary retirement notice is at the discretion of the Director P. R. L. The director constituted three-member committee and the Director on 16th March, 2004, after considering all aspects of the matter and fully applying his mind came to the conclusion that it is not a fit case for allowing withdrawal of voluntary retirement notice. As noted earlier, after some arguments the learned counsel for the respondents sought time to file further affidavit on behalf of the respondents. Accordingly, further affidavit-in-rejoinder came to be filed by the respondents in which also only reason comes forth for rejecting the request of the petitioner is that there are no exceptional circumstances in the present case, which would necessitate grant of special permission by the director allowing the withdrawal of the notice for voluntary retirement. It is stated that notice of withdrawal did not mention what are the changed circumstances between 5th January, 2004 and 13th January, 2004 and the director, therefore, bona fide thought that this is not a fit case to permit withdrawal of voluntary retirement notice. It is stated that the Director thought that by allowing such a withdrawal without specific reasons being mentioned or otherwise, it would set a bad precedent and that P. R. L. has followed a uniform policy that unless and until exceptional circumstances are made out, such permission should not be granted. ( 25 ) IN the extract of the minutes of the relevant file, however, no such reasons are recorded by the Director. All that is stated is that having applied the mind he finds that this is not a case for allowing withdrawal of V. R. S. Thus, it is clearly a case where the reasons sought to be indicated in the affidavit filed by the respondents, are not borne out from the recordings on the files. It would not be open for the respondents to improve upon the reasons recorded on file by filing affidavits. Reasons even if not communicated, must be available on file to rely upon the same.
It would not be open for the respondents to improve upon the reasons recorded on file by filing affidavits. Reasons even if not communicated, must be available on file to rely upon the same. Even otherwise, the question is whether reasons stated in the reply were sufficient to reject the request of the petitioner to withdraw the voluntary retirement notice. 25. 1 As noted earlier, the petitioner perceiving some injustice in his office, had out of frustration, tendered voluntary retirement notice on 5-1-2004. Having realized his mistake almost immediately thereafter on 13-1-2004, he approached the employer with folded hands and requested that he may be permitted to withdraw the voluntary retirement notice. The eventual date of his retirement was still far away and his retirement was to be effective only from 6th April, 2004. The employer, however, did not think it proper to permit such withdrawal. The only reasons given, as can be culled out from the evidence on the files as well as stated in the affidavits, are that no special circumstances or change in circumstances were demonstrated by the petitioner, and the Director thought that permitting withdrawal would set a bad precedent and that in the past no such requests have been accepted. To my mind, none of the reasons indicated by the respondents would satisfy the requirements of proper consideration of the request of the petitioner. In the case of Balram Gupta (supra) the Honble supreme Court had observed that what is important to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the Government from withholding the withdrawal. It was observed that the approving authority as the statutory authority must act reasonably and rationally. In the present case, I do not find that any of the reasons indicated by the respondents, as noted earlier, would be sufficient to uphold the ultimate decision to reject the request of the petitioner. Even though the reasons indicated in the affidavits are not borne out from the notings made by the Director on the file, I have examined whether such reasons would permit the respondents to withhold the permission. On this test also, I find that the stand of the respondents cannot be upheld.
Even though the reasons indicated in the affidavits are not borne out from the notings made by the Director on the file, I have examined whether such reasons would permit the respondents to withhold the permission. On this test also, I find that the stand of the respondents cannot be upheld. By stating that permitting withdrawal of voluntary retirement notice would set a bad precedent, the authority is virtually abdicating the discretionary powers vested with it under Rule 48a of C. C. S. (Pension) rules. When the statute casts certain duty to act with discretion, it is not open for the authority to brush aside the requests of the employees by simply stating that no such request can be granted as it would set a bad precedent. The fact that no such requests were granted in the past also, would be of no consequence. If the petitioner had made out a good case for permitting such withdrawal, the same ought to have been considered in light of facts arising in his case. No policy has been placed before the Court to suggest that it has been the uniform policy of the respondents that unless exceptional circumstances are made out, permission to withdraw should not be granted. Even otherwise, I find that the petitioner had made out strong case for being permitted to withdraw the voluntary retirement notice. It is nobodys case that on account of tendering the notice for voluntary retirement and thereafter withdrawing the same, the petitioner had put the employer to any embarrassment or inconvenience or that the employer had altered its position irretrievably in the meantime. No such case has been set up or even argued. The fact, therefore, remains that the petitioner tendered his voluntary retirement notice and immediately thereafter with folded hands approached the employer by setting out good grounds to permit him to withdraw the same. The respondents ignored the request and rejected the application. Unfortunately, the subsequent communication dated 8th March, 2004, has not even been referred to by the respondents at any stage on the file or even in replies, simply losing sight of the additional representation made by the petitioner. ( 26 ) SUM total of the whole discussion is that there was no justification in respondents withholding the permission for voluntary retirement. The action is illegal and unlawful, same is hereby quashed and set aside.
( 26 ) SUM total of the whole discussion is that there was no justification in respondents withholding the permission for voluntary retirement. The action is illegal and unlawful, same is hereby quashed and set aside. The petitioner shall be permitted to withdraw his voluntary retirement notice dated 5th January, 2004. Letter of acceptance of such a notice also of 5th January, 2004, is quashed and set aside. Accordingly, this petition is allowed. Rule is made absolute accordingly. No order as to costs. (HSS) Petition allowed. .