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2006 DIGILAW 165 (GAU)

Jitendra Dev Barma v. State of Tripura

2006-02-20

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. Heard Mr. A.M. Lodh, learned senior counsel, assisted by Mr. A. Lodh, learned Counsel for the Petitioner and Smti A.S. Lodh, learned Counsel for the State Respondents. 2. The Petitioner entered into service as Lower Division Clerk and in due course he was promoted to the post of Upper Division Clerk. On completion of 20 years of service, he submitted a prayer for voluntary retirement on 17.3.2001, which was, however, not acted upon. Thereafter, on 31.8.2001 he submitted another prayer seeking voluntary retirement, which was, however, accepted and he was allowed to retire voluntarily w.e.f. 30.11.2001. The order of acceptance dated 6.11.2001 is quoted below: In pursuance of the Government of Tripura, Finance Department Memorandum No. F.8(5)-FIN (G)/78 dated 6th March, 1980 Jitendra Deb Barma U.D. Clerk, Health Directorate, Agartala is hereby allowed to retire voluntarily from Govt. Service with effect from the afternoon of 30.11.2001. The Petitioner because of his long illness approached for voluntary retirement, but later after recovery he changed his mind and decided to continue in service. Accordingly, on 5.11.2001, one day before the order accepting his voluntary retirement was issued, he addressed a letter to the Director of Health Services that he intended to withdraw his voluntary retirement notice. This letter was followed by another dated 17.11.2001 requesting the said authority to consider his prayer and cancel his voluntary retirement notice. But by order dated 13.12.2001 (Annexure-5), which has been impugned herein, the Director of Health Services (the second Respondent herein) informed the Petitioner that his request for cancellation of the voluntary retirement notice could not be acceded to. Aggrieved, the Petitioner has approached this Court seeking a direction to quash the said memorandum with further direction that the Petitioner should be deemed to be in service with all benefits including pay and allowances during the period he was out of the service for non-acceptance of his request for withdrawal of voluntary retirement notice. 3. The State Respondents contended, inter alia, that the Petitioner himself in his notice dated 31.8.2001 prayed for his voluntary retirement w.e.f. 30.9.2001 and this being the notice period, his prayer for withdrawal of notice on 5.11.2001 was not in terms of Clause (vi) of the voluntary retirement scheme (for short 'scheme') introduced by the State Government. According to Clause (i) of the said Scheme (Annexure-7), a Govt. According to Clause (i) of the said Scheme (Annexure-7), a Govt. servant, who has put in not less than 20 years qualifying service may, by giving three months' notice in writing to the appointing authority, retire from service voluntarily. Clause (iii) of the scheme further provides that a notice of less than three months may also be accepted by the appointing authority in deserving cases, with prior concurrence of the Finance Department. Clause (vi), which is the foundation for the above contention that withdrawal must be before expiry of the notice provides as follows: (vi) A notice of voluntary retirement may be withdrawn subsequently only with the approval of the appointing authority provided the request for such withdrawal is made in writing to reach before the expiry of the period of notice, since approval by the appointing authority or non-approval being at the appointing authority's sole discretion. Thus it is contended that as the notice period was to expire on 30.9.2001 as specified by the Petitioner himself in his notice, his subsequent prayer for withdrawal of the notice on 5.11.2001 is not in terms of Clause (vi) of the Scheme and, therefore, non-acceptance of his request to withdraw the notice by the State Respondents does not suffer from any legal infirmity. 4. The factual position as noted above, being not in dispute the only question that has fallen for consideration is whether non-acceptance of the request to withdraw the notice of voluntary retirement is legally valid. Another question has also surfaced from this controversy, which is relating to the validity of Clause (vi) of the scheme, which provides that approval of the appointing authority is necessary for withdrawing the notice of voluntary retirement. 5. Mr. A.M. Lodh, learned Senior Counsel for the Petitioner has assailed the impugned order on three specific grounds, firstly the letter of withdrawal of the notice was before the effective date, which was 30.11.2001. The effective date must be the date on which the employer-employee relationship comes to an end. It would be evident from the order dated 6.11.2001 (Annexure-3) that the second Respondent has specifically mentioned the date 30.11.2001 with effect from which the voluntary retirement of the Petitioner would take effect. Obviously, the notice dated 31.8.2001 of the Petitioner was acted upon and counting from that date the effective date has been stated to be 30.11.2001. It would be evident from the order dated 6.11.2001 (Annexure-3) that the second Respondent has specifically mentioned the date 30.11.2001 with effect from which the voluntary retirement of the Petitioner would take effect. Obviously, the notice dated 31.8.2001 of the Petitioner was acted upon and counting from that date the effective date has been stated to be 30.11.2001. Admittedly, the request to withdraw the notice of voluntary retirement was made on 5.11.2001 in writing and the same was accepted by the State Respondents on the same day. Thus, Mr. A.M. Lodh submits, the request in writing to withdraw the notice having been filed before 30.11.2001, it was strictly in terms of Clause (vi) of the Scheme to the extent it provides that such request must come before the expiry of the period of notice. The contention of Smti A.S. Lodh, learned Counsel for the State Respondents that the notice period must be taken to be 30.9.2001 as mentioned by the Petitioner cannot be said to be consistent with the scheme as there is no express order in terms of Clause (vi) of the scheme, which provides for notice for three months. No doubt a shorter notice can also be accepted by the appointing authority in deserving cases with prior concurrence of the Finance Department, but this is not the case here and no such contention has at all been advanced that the notice has been accepted with the concurrence of the Finance Department. This contention is also not acceptable for the reason that the State Respondents did not accept the notice within 30.9.2001. On the contrary, they have done so w.e.f. 30.11.2001, just after completion of three months period. Therefore, the contention of Mr. A.M. Lodh that the effective date must be 30.11.2001 is clearly in terms of the scheme. Thus it has to be held that the request for withdrawal of the notice of voluntary retirement was submitted before the effective date. 6. The second contention of Mr. A.M. Lodh is that the provision in Clause (vi) of the scheme that request for withdrawal of the notice of voluntary retirement can be made only with the approval of the appointing authority and the matter rests in the sole discretion of that authority is not legally sustainable and this provision has been assailed specifically in the writ petition. A.M. Lodh is that the provision in Clause (vi) of the scheme that request for withdrawal of the notice of voluntary retirement can be made only with the approval of the appointing authority and the matter rests in the sole discretion of that authority is not legally sustainable and this provision has been assailed specifically in the writ petition. In support of this contention, he has referred to the decision of the Supreme Court in Balaram Gupta v. Union of India, reported in AIR 1987 SC 2354 . The question that had arisen in that case was whether under Sub-rule (4) of Rule 48-A of the Pension Rules, it is necessary to obtain specific approval of the authority for withdrawing the notice of voluntary retirement. Addressing the issue elaborately, the Apex Court in para 9 has observed as follows: 9. Learned Counsel appearing for the Appellant contended before us that this rule was bad as violative of the Fundamental Rights of citizens. Challenge to the rule was however not made before the High Court on this ground. He, however, contended that if the rule be read as consistent with the constitutional requirements of reasonableness which is well accepted rule of construction, then the Government could not withhold approval to the withdrawal of resignation without any rhyme or reason. The counter-affidavit filed in this proceeding by Majgaonkar, who is the Respondent No. 2 in this appeal reveals very little as to why the sanction was withheld. It is stated in paragraph 5 of the said affidavit that it was not in the knowledge of the Respondent as to what prompted the Appellant to request the withdrawal. What is important in this connection 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. In this respect the government affidavit certainly lacks candour. In appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state those reasons. There may be hundred and one situations where a situation or opportunity like this may be used by the Government to ease out a disgruntled or reluctant or froebel some employee. There may be hundred and one situations where a situation or opportunity like this may be used by the Government to ease out a disgruntled or reluctant or froebel some employee. It was further stated that there were guidelines which were laid down by the O.M. No. 24(57)-EV 32 dated 24.12.1952 for considering and deciding in the matter of accepting or refusing the withdrawals of notices of voluntary retirement. What part of the guidelines was violated by the Appellant was not indicated or spelled out in the said affidavit. We would advert to certain guidelines and examine if these were violated later. It is only stated that the application for withdrawal was considered in the light of the said guidelines and the request was turned down appropriately. It was further started that the notice of termination of service or of retirement is a unilateral act whereby the officer communicates his intention to dissolve the contract of service and unlike resignation it operates without the consent of the other party, It is, therefore, submitted that once notice was given it became operative immediately, if it was received by the Government and automatically brought about the dissolution of contract after the expiry of the notice period. We are unable to accept this submission and this position. The dissolution would be brought about only on the date indicated, i.e. 31st of March, 1981; up to that the Appellant was and is a Government employee. There is no unilateral termination of the same prior thereto. He is at liberty and entitled independently without Sub-rule (4) of Rule 48-A of the Pension Rules, as a Government servant, to withdraw his notice of voluntary retirement, in this respect it stands at par with letter of resignation. 7. The ratio laid down in the said decision would make it clear that the requirement of prior approval of the appointing authority is not sine qua non for withdrawing the notice of voluntary retirement and as such this part of the said clause is not legally sustainable. 8. As regards the effective date before which the voluntary retirement notice can be withdrawn, Mr. A.M. Lodh has also placed reliance on the decision of the Supreme Court in Shambhu Murari Sinha v. Project and Development India Ltd., reported in AIR 2002 SC 1341 . 8. As regards the effective date before which the voluntary retirement notice can be withdrawn, Mr. A.M. Lodh has also placed reliance on the decision of the Supreme Court in Shambhu Murari Sinha v. Project and Development India Ltd., reported in AIR 2002 SC 1341 . In para 18 of the said judgment, it has been clearly held that during the subsistence of the employer-employee relationship the employee is at liberty to withdraw the notice of voluntary retirement as he has the locus poenitentiae to withdraw the same. The said paragraph is gainfully quoted below: 18. Coming to the case in hand the letter of acceptance was a conditional one inasmuch as though option of the Appellant for the voluntary retirement under the scheme was accepted but it was stated that the 'release memo along with detailed particulars would follow'. Before the Appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated August 07,1997 and September 24, 1997, but there was no response from the Respondent. By office memorandum dated 25th September, 1997, the Appellant was released from the service and that too from the next day. It is not disputed that the Appellant was paid his salaries etc. till his date of actual release i.e. 26 September, 1997, an, therefore, the jural relationship of employee and employer between the Appellant and the Respondents did not come to an end on the date of acceptance of the voluntary retirement and said relationship continued till 26th of September, 1997. The Appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the Appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end. 9. In support of the same contention Mr. A.M. Lodh has also placed reliance on another decision of the Supreme Court in J.N. Srivastava v. Union of India, reported in (1998) 9 SCC 559 relating to withdrawal of voluntary retirement notice as well as entitlement of back wages and other benefits. Para 3 of the said judgment deals with this issue, which reads as follows: 3. A.M. Lodh has also placed reliance on another decision of the Supreme Court in J.N. Srivastava v. Union of India, reported in (1998) 9 SCC 559 relating to withdrawal of voluntary retirement notice as well as entitlement of back wages and other benefits. Para 3 of the said judgment deals with this issue, which reads as follows: 3. The short question is whether the Appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him on 3.10.1989 which was to come into effect from 31.1.1990. It is true that this proposal was accepted by the authorities on 2.11.1989. But thereafter before 31.1.1990 was reached, the Appellant wrote a letter to withdraw his voluntary retirement proposal. This letter is dated 11.12.1989. The said request permitting him to withdraw the voluntary retirement proposal was not accepted by the Respondents by communication dated 26.12.1989. The Appellant, therefore, went to the Tribunal but the Tribunal gave him no relief and took the view that the voluntary retirement had come into force on 31.1.1990 and the Appellant had given up the charge of the post as per his memo relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. In our view the said reasoning of the tribunal cannot be sustained on the facts of the case, 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. The said view has been taken by a Bench of this Court in the case of Baliram Gupta v. Union of India, In view of the aforesaid decision of this Court it cannot be said that the Appellant had no locus standi to withdraw his proposal for voluntary retirement before 31.1.1990. It is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26.12.1989 and when the retirement came into effect on 31.1.1990 the Appellant had no choice but to give up the charge of the post to avoid unnecessary complications. He, however, approached the Tribunal with the main grievance centering round the rejection of his request for withdrawal of the voluntary retirement proposal. He, however, approached the Tribunal with the main grievance centering round the rejection of his request for withdrawal of the voluntary retirement proposal. The Tribunal, therefore, following decision of this Court ought to have granted him the relief. We accordingly, allow these appeals and set aside the orders of the Tribunal as well as the order of the authorities dated 26.12.1989 and directed the Respondents to treat the Appellant to have validly withdrawn his proposal for voluntary retirement with effect from 31.1.1990. The net result of this order is that the Appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age. The Respondent-authorities will have to make good to the Appellant all monetary benefits by treating him to have continuously worked till the date of his actual superannuation in 1994. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. However, this will have to be subject to adjustment of any pension amount and other retirement benefits already paid to the Appellant in the meantime up to the date of his actual superannuation. It was submitted by learned senior counsel for the Respondent-authorities that no back salary should be allowed to the Appellant as the Appellant did not work and, therefore, on the principle of "no work, no pay", this amount should not be given to the Appellant. This submission of learned senior counsel does not bear scrutiny as the Appellant was always ready and willing to work but the Respondents did not allow him to work after 31.1.1990. The Respondents are directed to make available all the requisite monetary benefits to the Appellant as per the present order within a period of 8 weeks on the receipt of copy of this order at their end. Office shall send the same to the Respondents at the earliest. 10. Mr. A.M. Lodh has also taken me to other instances of accepting notice of withdrawal to highlight the point that the second Respondent herein has acted arbitrarily by refusing to accept the request of withdrawal of the notice of voluntary retirement of the Petitioner. In the first case, one Kishan Debbarma was allowed to retire voluntarily from Govt, service by order dated 4.12.2002 w.e.f. 31.3.2002. In the first case, one Kishan Debbarma was allowed to retire voluntarily from Govt, service by order dated 4.12.2002 w.e.f. 31.3.2002. Thereafter, on 15.3.2003 the said order was cancelled. In the second case, one Subal Ch. Debbarma was allowed to retire voluntarily by order dated 17.2.2003 w.e.f. 30.4.2003, but by order dated 3.5.2003, his request for withdrawal of his notice of voluntary retirement was accepted. It is the submission of Mr. A.M. Lodh that these two instances bring into focus the discrimination meted out to the Petitioner and because of that reason alone the impugned order is nothing but an arbitrary action on the part of the second Respondent. Mrs. A.S. Lodh, however, countered the submission by saying that both Kishan Debbarma and Subal Ch. Debbarma had submitted their notices of voluntary retirement giving specific date and they had withdrawn the said notices before that date. But in the case on hand, the Petitioner had specifically mentioned that he wanted to retire voluntarily from service w.e.f. 30.9.2001, but he had sought to withdraw the notice only on 5.11.2001, much after the date mentioned in his notice. 11. As I have adverted to this issue by holding that whatever may be the date mentioned by the Petitioner in his notice, the State Respondents acted on the same accepting that it was a notice for three months and as the order specifically provided that the Petitioner would retire from service only after 30.11.2001, the same must be taken to be the effective date and consequently, the notice of withdrawal being on 5.11.2001 it can be safely held that the same was well before the effective date. Considering from this premise the submission of Mrs. A.S. Lodh is not acceptable. 12. Placing the admitted facts on the anvils of the settled legal position, as noticed above, it can now safely be held that the impugned memorandum refusing to accept the request for withdrawing the notice of voluntary retirement is not legally valid and, therefore, the same is liable to be quashed, which I hereby do. 13. For the same reason, the Petitioner shall be deemed to be in service continuously and he would be entitled to all the service benefits including pay and allowances for the period for which he was out of service due to non-acceptance of his request for withdrawing the notice of voluntary retirement. 13. For the same reason, the Petitioner shall be deemed to be in service continuously and he would be entitled to all the service benefits including pay and allowances for the period for which he was out of service due to non-acceptance of his request for withdrawing the notice of voluntary retirement. His absence from duties for other reasons must be dealt with in accordance with the provisions contained in the leave rules applicable to him. The Petitioner shall be taken into service forthwith and all the benefits due to him shall be cleared within a period of three months from the date of passing of this judgment and order. 14. With the above observations and directions, this writ petition is allowed. But having regard to the facts and circumstances of the case there shall be no order as to cost. Petition allowed