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2013 DIGILAW 161 (MP)

KAMTA PRASAD PANDEY v. STATE OF MADHYA PRADESH

2013-02-06

K.K.LAHOTI, VIMLA JAIN

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JUDGMENT : VIMLA JAIN, J. 1. Being aggrieved by the dismissal order dated 10/11/2006 passed in MCC No. 2573/2005 against the order dated 29/10/2005 passed in Writ Petition No. 22346/2003, the present intra Court appeal has been filed by the appellant u/s 2 of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth ko Appeal) Adhiniyam, 2005. Short facts of the case are that the appellant was appointed as a Warden in Central Jail on 13/05/1976 at Rewa. On 14/07/1998, the appellant submitted an application for voluntary retirement on a simple paper and requested to relieve him on the same day i.e. 14/07/1998. The application was not in the prescribed Form No. 28 and the appellant did not deposit advance salary of 3 months, as required under Rule 42(1)(A) of Pension Rules, therefore, Superintendent wrote a letter on 14/10/1998 (Annexure A/2) to the appellant that his application could not be accepted. On 05/04/2002, the appellant submitted a conditional application for voluntary retirement that if his son could be considered for employment then only his application for voluntary retirement should be acted upon and accepted. In consequence, the Superintendent, Central Jail, had issued letter dated 23/05/2002 (Annexure A/4) warning the petitioner that conditional application for voluntary retirement could not be maintained. Despite such letter, the respondent passed an order dated 26/06/2002 and voluntarily retired the petitioner with effect from 05/07/2002, which was challenged in the writ petition. The learned Single Judge has not found any illegality in the order of voluntary retirement, hence, dismissed the writ petition vide order dated 29/10/2005. Appellant has also filed an application for review/recalling of the aforesaid impugned order, which was also dismissed on 10/11/2006. 2. Learned counsel for the respondent submitted in its reply that the petitioner submitted his application for voluntary retirement in the prescribed form which was accepted by the Superintendent. His retirement dues have been paid and pension fixed. The respondent also submitted that there is no provision to withdraw the said order. 3. The learned Single Judge after considering the rival contentions of the parties held thus: 3. Relying on Mushtaq Ahmad Qureshi Vs. State of M.P. and another, (1979) MPLJ 77, counsel for petitioner has submitted that unless the notice for voluntary retirement is in the prescribed format, it cannot be acted upon and hence the action of the respondent is contrary to provisions of law and ought to be set aside. 4. Relying on Mushtaq Ahmad Qureshi Vs. State of M.P. and another, (1979) MPLJ 77, counsel for petitioner has submitted that unless the notice for voluntary retirement is in the prescribed format, it cannot be acted upon and hence the action of the respondent is contrary to provisions of law and ought to be set aside. 4. The respondent filed return stating that the order dated 26/06/2002 was passed on basis of the application submitted by the petitioner on 05/04/2002 and the petitioner was directed to voluntarily retire from service after the expiry of three months with effect from 05/07/2002 and hence the order was in accordance with the provisions of law and keeping with Rule 42(1)(A) of the Pension Rules, 1976. The petitioner was deliberately filing applications and then withdrawing them on more than one occasion and had been warned by the department to desist from doing so. It was also not possible to grant appointment to his son in his place as sated in the application. Earlier applications submitted by the petitioner have been filed as Annexure R/1 and application dated 05/04/2002 was considered again. The return also demonstrates that the petitioner has accepted his retirement and post retrial benefits have been paid to him. The receipt of pension vide P.P.O. Dated 02/09/2002 has been filed as Annexure R/3. In view of above, the petitioner is stopped from making contrary submissions and tried to reopen the proceedings. 5. On the basis of the above and on perusing the other precedent relied on by the counsel for petitioner Commissioner of Income Tax, Salem Vs. K. Chinnathamban, (2007) 5 SCC 390, wherein the Apex Court has cautioned that it was to the discretion of the authority covered under Article 12 to accept or reject the application for voluntary retirement. However, the Apex Court cautioned that the authority would exercise such discretion reasonably, fairly and judiciously since it was not an unfettered or absolute discretion. In the case cited, the applicant had postulated her claim in the prescribed form, which remained undecided for two months and a week long period despite several reminders and thereafter a show cause notice for her indulgence in political activities, the respondent had held that she was entitled to relief of being treated to have voluntarily retired from the date of her application. Departmental enquiry, Show cause notice against the alleged misconduct were all involved in the case and the applicant had also filed a Writ Petition on the basis of having sought relief of having retired from employment. The interpretation was pertaining to Rule 18 of the AIDC Recruitment and Promotions Rules, 1992 and the facts of the case are also different. However, the Apex Court has rightly observed that voluntary retirement was to be granted at the discretion of the authority. 6. On perusal of the record, I find that the petitioner was making applications and withdrawing his consent imposed condition for voluntary retirement, which were not accepted to the department. As is evident from the return filed and on the basis of the above, I do not find any ground for interference in the order of voluntary retirement passed by the respondent and impugned in this petition. 7. The petition is dismissed as sans merit. No order as to costs. 4. Being aggrieved by the aforesaid order, the appellant preferred the present writ appeal. 5. We have considered the arguments/submissions of both the parties and carefully scrutinized and perused the record of the voluntary retirement of the appellant. 6. We find that the appellant submitted an application on 14/07/1998 for voluntary retirement on a simple paper and requested to retire him on the same day. The Superintendent replied to him that the application was not in prescribed Form No. 28 and the appellant did not deposit 3 months' advance of salary. Therefore the appellant was given an opportunity for personal appearance. Thereafter the appellant wrote a letter on 16/10/1998 and raised a condition of appointment of his son. The Superintendent vide its letter dated 26/10/1998, postponed the process of retirement because the appellant had not submitted the application in prescribed Form No. 28 and also had not deposited advance salary of three months. 7. The appellant after the period of about 4 years, submitted an application in prescribed Form No. 28 on 05/04/2002 and also submitted an application on simple paper that 3 months notice period would be over on 30/06/2002, therefore there was no need to deposit the advance salary of three months. The appellant did not stipulate any condition in both these applications. The appellant did not stipulate any condition in both these applications. The appellant again by his letter dated 05/05/2002 reiterated his request without any condition and made it absolutely clear that he would not be responsible to discharge his duty after 05/07/2002. 8. The appellant submitted an application on 22/05/2002 and again raised a condition for appointment of his son. The Superintendent replied on 23/05/2002 that it was not possible to appoint his son and directed him to clarify his stand. He clarified his stand by his letter dated 23/05/2002 which is reproduced below: 9. On perusal of the above quoted application, we find that the appellant did not raise specific condition for appointment of his son but simply requested to consider on humanitarian ground and in the light of the rules. He further reiterated his willingness for retirement. Thus, his request for the appointment of his son cannot be treated as a condition precedent for his voluntary retirement. 10. The Superintendent of Central Jail, considering the application which is in form No. 28 and letters of the appellant, retired him vide order dated 26/06/2002. 11. The appellant received the gratuity of Rs. 68,046/- and pension Rs. 2,601/- for the month of July 2002, vide treasury voucher No. 06/01.08.2002 as depicted from the statement attached with the letter No. 4554 dated 08/10/2002 sent by Superintendent, Central Jail, Jabalpur to Treasury Officer, Rewa. The appellant vide his letter which was received in the office of the Superintendent, Central Jail, Jabalpur on 11.11.2002, requested to forward his joint photo with his wife and his verified signature to Treasury Officer, Rewa. 12. The above said correspondence between both the parties shows the willingness of the appellant for voluntary retirement. It is also a fact that the appellant submitted an application in the prescribed form without stipulating any condition and accepted his gratuity and pension without any protest. 13. Considering all the facts and circumstances mentioned above, we do not find any infirmity in the order passed by the learned Single Judge. Therefore, there is no reason to interfere with the order dated 29.10.2005 passed in the writ petition No. 22346/2003 passed by Single Bench. The appeal is without any merit, therefore, it is dismissed at the motion stage. No order as to costs. Dismissed.