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2012 DIGILAW 523 (ALL)

SATISH KUMAR v. U. P. JAL VIDYUT NIGAM LIMITED

2012-02-28

RAJIV SHARMA, S.C.CHAURASIA

body2012
JUDGMENT By the Court.—Heard Sri S.K. Kalia, Senior Advocate, assisted by Sri Vidhu Bushan Kalia, learned Counsel for the petitioner and Sri Nirad Kumar, learned Counsel for the opposite parties. 2. As the pleadings have already been exchanged between the parties, with the consent of learned counsel for the parties, the writ petition is being disposed of at the admission stage itself. 3. Through the instant writ petition under Article 226 of the Constitution of India, the petitioner has questioned the validity and correctness of the order dated 2nd February, 2012 passed by the Chairman-cum-Managing Director, U.P. Jal Vidyut Nigam Limited, contained in Annexure 1 to the writ petition, retiring the petitioner from service w.e.f. 29.2.2012 on the basis of his application for voluntary retirement. 4. In short, facts of the case are that the petitioner was initially appointed on the post of Assistant Engineer in U.P. State Electricity Board. On account of his satisfactory services, he was promoted in due course as Executive Engineer in January, 2001 while working on a deputation post in U.P. Jal Vidyut Nigam Limited. vide order dated 11.5.2010, the services of the petitioner were merged in U.P. Jal Vidyut Nigam Limited [hereinafter referred to as “Nigam”]. While working at Hydel Generation Circle, Pipari, District Sonebhadra as In-charge Superintending Engineer, the petitioner moved an application dated 14/15.11.2011, praying therein that he may be voluntarily retired w.e.f. 29.2.2012. On 16.1.2012, the petitioner changed his mind and withdrew his earlier application dated 14/15.11.2011, seeking voluntary retirement. 5. Counsel for the petitioner has vehemently argued that the Chairman-cum-Managing Director, without considering the application dated 16.1.2012, moved by the petitioner withdrawing his earlier application for voluntary retirement, passed the impugned order dated 2.2.2012, retiring the petitioner w.e.f. 29.2.2012. 6. Inviting our attention towards the U.P. State Electricity Board (Employees Retirement) Regulation, 1975 [hereinafter referred to as “Regulation”], Counsel for the petitioner submits that the said Regulation would mutatis mutandis apply to the employees of Nigam. As per provisions of Regulation, 1975, as amended in the year 1993, an employee can opt voluntary retirement and as such, the petitioner had submitted an application for voluntary retirement from a future date specified in the notice, but before that date, the petitioner reconsidered his decision and withdrew his request for voluntary retirement, which is legally permissible. As per provisions of Regulation, 1975, as amended in the year 1993, an employee can opt voluntary retirement and as such, the petitioner had submitted an application for voluntary retirement from a future date specified in the notice, but before that date, the petitioner reconsidered his decision and withdrew his request for voluntary retirement, which is legally permissible. The opposite party No. 1, while passing the impugned order, has not applied its independent mind as the impugned order does not speak even a single word about the letter dated 16.1.2012 by which the petitioner withdrew the voluntary retirement notice. 7. Lastly, it has been submitted that the notice for voluntary retirement was given out of sheer frustration and mental disturbances but when good sense and mental peace prevailed, the petitioner withdrew the voluntary retirement notice before the date of retirement but the same was not considered and remained pending. 8. Refuting the submissions made by Counsel for the petitioner, Counsel for the Corporation submitted that the request dated 16.1.2012 of the petitioner withdrawing his voluntary retirement dated 14/15.11.2011 was considered simultaneously and the competent/appointing authority, vide Office Memorandum No. 88 dated 2.2.2012, while accepting his voluntary retirement notice granted voluntary retirement w.e.f. 29.2.2012 in accordance with U.P. State Electricity Board (Employees’ Retirement) Regulations, 1975 read with U.P. State Electricity Board (Employees, Retirement Second Amendment) Regulations, 1993. 9. While placing reliance upon Rule 2 (c) (ii) of the U.P. State Electricity Board (Employees, Retirement Second Amendments) Regulations, 1993, learned Counsel has submitted that the competent/appointing authority after considering the merits and demerits of the case accepted the voluntary retirement of the petitioner in accordance with the Rule 2 (c) (ii) of the Regulation, 1993. He submits that the competent authority is fully empowered to accept or reject the withdrawal of voluntary retirement of any employee and as such, the voluntary retirement order was issued on 2.2.2012 but the same was made effective on 29.2.2012 (afternoon) as per notice of the petitioner. 10. Voluntary retirement is an option given to a public servant to retire from service on the fulfillment terms and conditions. The three categories rule relating to voluntary retirement are : (a) where voluntary retirement automatically comes into force on expiry of notice period. (b) where retirement comes into force unless an order is passed during the notice period withholding permission to retirement. The three categories rule relating to voluntary retirement are : (a) where voluntary retirement automatically comes into force on expiry of notice period. (b) where retirement comes into force unless an order is passed during the notice period withholding permission to retirement. (c) Voluntary retirement does not come into force unless permission to this effect is granted by the competent authority. 11. Since the retirement becomes effective from the date mentioned in the notice, an employee is entitled to withdraw the notice before that date. The right of employee to withdraw his request for premature retirement cannot be defeated arbitrarily as in modern era, a certain amount of flexibility is required if such flexibility does not jeopardize Government or administration. Therefore, the authorities should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow a Government servant to withdraw his letter of retirement. 12. Having considered the submissions advanced by the Counsel for the parties and perusing the relevant regulations, we are of the view that a Government servant is at liberty, and entitled independently to withdraw his notice of voluntary retirement. The Corporation is absolutely silent so far as the reason for not permitting the petitioner to withdraw his notice for voluntary retirement is concerned. In the counter-affidavit the respondents have made a feign attempt to improve their case by stating that the application for withdrawal of notice was considered but in the impugned order there is not a single word to this effect and as such we are unable to accept the assertion of the respondents’ Counsel. To refuse the request of the petitioner, respondent had to have strong reasons and valid grounds. It is not disputed that though it was the discretion of the authorities whether to accept such request or not, such discretion cannot be exercised arbitrarily, as has been held by the Supreme Court in catena 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. Regulation also specifies that, if the officer wants to withdraw the notice of voluntary retirement, it would be permissible only with the approval of the competent authority. 13. Thus, we are of the view that the stand which has been taken by the respondent-Corporation is not tenable in law. Regulation also specifies that, if the officer wants to withdraw the notice of voluntary retirement, it would be permissible only with the approval of the competent authority. 13. Thus, we are of the view that the stand which has been taken by the respondent-Corporation is not tenable in law. Petitioner had a right to withdraw his notice of voluntary retirement before the actual effective date comes into force. This issue stands squarely covered by the Hon’ble Supreme Court’s decision in the matter of Balram Gupta v. Union of India and another, AIR 1987 SC 2354 . In Balram Gupta’s case, the appellant-employee offered to retire voluntarily from service w.e.f. 31st March, 1981 and accordingly sent a letter within the notice period. However, he changed his mind and sent a letter on 31.1.1981 seeking to withdraw his notice of voluntary retirement, but the request was disallowed by the concerned authority on the ground that the withdrawal of notice could only be with the specific approval of the authority. The Apex Court held that the dissolution of the contract of employment would be brought about only on the date indicated i.e. 31.3.1981 and upto that date the appellant continued as Government employee. He is at liberty to withdraw his notice of voluntary retirement and for this purpose, prior approval is not required. 14. The decision in J.N. Srivastava v. Union of India, (1998) 9 SCC 559 , is also to the same effect. This Court held as follows : “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 Balram Gupta v. Union of India.” 15. In Nand Keshwar Prasad v. Indian Farmers Fertilizers Cooperative Ltd. and others, (1998) 5 SCC 461 , in paragraph 11, the Apex Court reiterated that it is open to the employee concerned to withdraw letter before the date indicated in the notice of voluntary retirement. 16. In Nand Keshwar Prasad v. Indian Farmers Fertilizers Cooperative Ltd. and others, (1998) 5 SCC 461 , in paragraph 11, the Apex Court reiterated that it is open to the employee concerned to withdraw letter before the date indicated in the notice of voluntary retirement. 16. In Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, (1997) 4 SCC 280 , the Apex Court went a step further and observed thus : “It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end.” 17. Considering the well-settled position of law, we are of the view that though there is discretion with the respondent not to permit the employee to withdraw his notice of voluntary retirement as provided under the Regulation but that discretion needs to be exercised only if there are cogent and valid grounds available with the Department. In absence of any valid and cogent grounds available and without assigning any reasons worth the name, the respondent-Corporation, in the present case, could not have refused permission to the petitioner to withdraw his notice of voluntary retirement. 18. For the reasons aforesaid, the writ petition is allowed, the impugned order dated 2.2.2012 (Annexure-1) passed by the Chairman-Cum-Managing Director is hereby quashed. The petitioner shall be deemed to be in service and shall be allowed to function on the post in question. However, it will be open for the authorities to consider the application for withdrawal of notice sent by the petitioner in light of the observations made hereinabove, if they so desire. ——————