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J&K High Court · body

2016 DIGILAW 10 (JK)

Ab. Aziz v. State of J&K

2016-02-01

B.S.WALIA

body2016
JUDGMENT : B.S. Walia, J. Petitioners invoked the jurisdiction of this Court on 25.03.2010 praying for the issuance of a writ of Certiorari for quashing order Annexure 'A' dated 09.03.2010 wherein it had been mentioned that the petitioners would be treated as retired from service w.e.f. 31.03.2010 as also for the issuance of a writ of Mandamus commanding the respondents to allow the petitioners to continue in-service till their attaining the age of superannuation uninfluenced by order Annexure 'A' dated 09.03.2010 passed by respondent No. 4 as also to confer all consequential/service benefits to the petitioners by ignoring order Annexure 'A' dated 09.03.2010 as also Mandamus commanding the respondents to produce the record wherein petitioners were alleged to have made a request for voluntary retirement and to declare the same as fraudulent, null and void, writ of Prohibition for restraining the respondents from retiring the petitioners w.e.f. 31st of March 2010 etc. The aforementioned writ petition was taken up for hearing on 26.03.2010 on which date while issuing notice and subject to objections from the other side, operation of impugned order was stayed till the next date of hearing. 2. Main plea of the petitioners was of their not having made any request at any point of time for their premature retirement and of there being a hidden agenda of the government in the passing of the impugned order Annexure 'A' dated 9th of March 2010 as evident from the speech of the Minister for P.H.E., i.e. Annexure 'B' published in newspaper dated 23.03.2010 which revealed that steps for forced and voluntary retirement had been taken to clear the mess/scandals in the department as also to create job avenues for unemployed youth and for which the office of respondent No. 4 had prepared Bio-Data i.e. Annexure 'C' of employees for their premature retirement mentioning therein the name of the official with parentage, designation, date of birth, date of appointment on daily wages R/Temp., basis as also actual date of retirement. 3. 3. Petitioners have also averred that they were holding class IV posts against meagre remuneration and that their families were dependent for their bread and butter on the earnings of the petitioners, that on coming to know about the impugned order Annexure 'A' dated 09.03.2010, the petitioners had made a joint representation Annexure 'D' and 'E' dated 16.03.2010 to respondent Nos., 1 and 2 denying of ever having made a request for premature retirement and mentioning therein of their having been allured and enticed by the dealing hands as well as then Minister for Public Health Engineering Department on his visit to District Poonch in May 2009 that they would be given extra incentives for overwork provided they submitted a representation, however on account of lack of education the petitioners were duped into signing blank paper by the officials with the assurance that their case would be processed for incentives and perks, that the petitioners were shocked on learning of a communication from the Executive Engineer, PHE Division Poonch to Assistant Executive Engineer, Poonch Division intimating decision to treat the petitioners as retired w.e.f. 31.03.2010, that the petitioners had never made any request for premature retirement and that if any such request had been received, the same be treated as not genuine and voluntary as their signatures had been obtained for processing their cases for incentives/overtime work and the said signatures had been misused by the respondents, that in the circumstances the petitioners be allowed to continue in-service till their attaining the age of superannuation. 4. 4. Challenge to impugned order Annexure 'A' dated 9th of March 2010 was inter-alia on the ground of the same being in violation of the principles of Natural Justice, of the petitioners having made detailed representation Annexure 'D' and 'E' dated 16th March 2010 denying their having made a request for voluntary retirement consequently of their being entitled to continue in-service till attaining the age of superannuation, that the petitioners could not be thrown out from service by the respondents without following the procedure prescribed under the rules and relations, that the procedure prescribed under the Civil Service Regulations had not been followed by respondent No. 4 who even otherwise was incompetent and had no authority to pass the impugned order dated 09.03.2010, that the statement of the Minister for Public Health Engineering Department made it crystal clear that the employees in the PHE Department had been given forced retirement with the sole objective of creating new vacancies for unemployed youth and also as a measure of punishment to some of the employees. However there was no complaint or allegation nor anything adverse against the petitioners nor had any notice been served on the petitioners, therefore the petitioners had been penalised in violation of the principles of Natural Justice, the petitioners case was not one where they were continuing in service beyond the age of superannuation nor were they involved in any case, therefore the impugned orders were legally unsustainable. 5. 5. A perfunctory one and a quarter page objections was filed on 03.01.2012 taking up the plea of the petitioners having requested in writing for premature/voluntary retirement vide applications Annexure R-l to R-17 and of the respondents not having resorted to any coercion, undue influence nor of having committed any fraud, that the concerned Assistant Executive Engineer vide communication Annexure 'A' dated 09.03.2010 was directed to inform the petitioners to attend the Divisional Office for completion of retirement formalities so that the petitioners cases could be forwarded to the Accountant General, that vide office order Annexure R-18 dated 29.03.2010, sanction was accorded to the premature/voluntary retirement of the petitioners in terms of Article 230, CSR Volume-1 and that none of the petitioners was continuing/attending duty w.e.f. 01.04.2010, that the petitioners had submitted their applications much prior to the statement of the Minister published in the newspaper on 23.03.2010 and that for want of necessary cooperation from the petitioners, papers could not be forwarded to the Accountant General for sanction of pensionary benefits. Grounds taken in the writ petition were stated to be incorrect on account of being unjust and untenable. On the basis of the aforementioned reply, prayer was made for dismissal of the writ petition. 6. Pursuant to the stand of the respondents in the objections of issuance of order Annexure R-18 dated 29th of March 2010 according sanction to the premature/voluntary retirement of the petitioners in terms of Article 230 of the Civil Service Regulations, Volume 1 as also of the petitioners having been relieved from Government service w.e.f. 31.03.2010, the petitioners moved CMP No. 1306 of 2012 for permission to amend the writ petition so as to incorporate a challenge to order Annexure R-18 dated 29th of March 2010 as also for seeking directions to the respondents to grant consequential benefits uninfluenced by order Annexure' A' dated 09.03.2010 and Annexure R-18 dated 29.03.2010. (Annexure 'F' in the amended written petition). 7. (Annexure 'F' in the amended written petition). 7. Apart from the grounds raised in the writ petition, additional grounds in the amended petition mention incompetence of respondent No. 4 to pass order granting sanction for premature/voluntary retirement of the petitioners on the ground that the authority competent to order premature/voluntary retirement was the Government and not respondent No. 4., that order Annexure 'A' dated 09.03.2010 which was couched in similar language and was having the same effect as order dated 29.03.2010 had already been stayed by the High Court but respondent No. 4 with a view to circumvent the process of law had issued order Annexure 'F' dated 29.03.2010, that the impugned order Annexure 'F' dated 29th March 2010 was further bad on the ground that respondent No. 4 had passed order Annexure 'F' dated 29.03.2010 despite petitioners having submitted categorical representations Annexure 'D' and 'E' dated 16.03.2010 denying having made request for voluntary/premature retirement and praying that in case of any such request having been received, the same be ignored and the petitioners be allowed to continue in service till their attaining the age of superannuation, therefore in the circumstances, respondent No. 4 not being justified in acting upon the so-called request for voluntary retirement allegedly made by the petitioners for issuing the impugned communication and of the impugned order Annexure 'F' being nothing short of an order of termination of service of the petitioners without following the due process of law, of respondent No. 4 being well aware of interim directions stated 26th of March 2010 whereby the impugned communication dated 9th of March 2010 had been stayed etc. 8. It would be relevant to mention here that vide order dated 19th August 2013, application for amendment was allowed and amended writ petition was taken on board. In response to the amended writ petition, a one and a half page objections (total four leafs, third and fourth page being undated affidavit of Sarwan Singh, Executive Engineer, P.H.E. Division Poonch and Non Judicial stamp paper of Rs. 10 bearing serial number AM 394217) were filed to the maintainability of the amended written petition on the 5th of August 2014. Even the said non judicial stamp paper does not bear a date. The date of filing of objections is apparent only from the receipt issued by the receiving official. 10 bearing serial number AM 394217) were filed to the maintainability of the amended written petition on the 5th of August 2014. Even the said non judicial stamp paper does not bear a date. The date of filing of objections is apparent only from the receipt issued by the receiving official. In the objections to the amended writ petition, the stand taken in paragraph No. 2 of the para wise reply is that the petitioners had requested for voluntary retirement from service and their applications were received through the concerned Assistant Executive Engineers in August 2009 and the concerned Executive Engineers were directed vide letter dated 09.03.2010 to inform the employees to complete formalities so that their cases could be completed and submitted to the Accountant General for finalisation of pension cases. In paragraph No. 3 of the objections, it has been mentioned that the petitioners received salary up to 31st of March 2010 where after none of the petitioners reported for duty and that petitioner No. 02,03,11 and 12 had submitted affidavits in support of their retirement and had also denied having filed any petition in the High Court and that photo copies of the affidavits had been attached with the objections already filed in the main writ petition. (However no such affidavit is available on the record and none has been pointed out from the objections filed to the writ petition). The only stand of the respondents is that the request for premature retirement had been made by the petitioners themselves. There is no denial of the other averments in the writ/amended writ petition. There is no denial to representation Annexure 'D' and 'E' dated 16.03.2010 to the Commissioner/Secretary, Public Health Engineering Department, Civil Secretariat, Jammu/Srinagar as also to the Chief Engineer, Public Health, Engineering Department Jammu. There is no denial of the other averments in the writ/amended writ petition. There is no denial to representation Annexure 'D' and 'E' dated 16.03.2010 to the Commissioner/Secretary, Public Health Engineering Department, Civil Secretariat, Jammu/Srinagar as also to the Chief Engineer, Public Health, Engineering Department Jammu. In other words representation Annexure 'D' and 'E' dated 16th of March 2010 wherein petitioners have taken up the categorical stand denying having made request for premature retirement and of their having been duped by the officials and the Minister PHE in May 2009 by assuring them of grant of incentives/benefits for overtime work in case they made representation and on that basis obtaining their signatures on blank papers and misusing the same and of their never having requested for premature retirement, therefore in case of any such request allegedly made by them having been received, for ignoring the same on account of the same being on account of the fraud practised on the petitioners and the petitioners to be allowed to continue in-service up to the age of superannuation. 9. I have heard learned counsel for the parties who have reiterated the stand in their respective pleadings. 10. Once representation Annexure 'D' and 'E' dated 16.03.2010 was served on the respondents prior to the passing of order Annexure 'F' dated 29th of March 2010 which was to come into effect w.e.f. 31.03.2010 as also in view of the fact that interim order dated 26.03.2010 had been passed by the High Court staying the impugned order treating the petitioners to be retired w.e.f. 31.03.2010, till the next date of hearing, there is no reason to disbelieve the petitioners stand in the amended writ petition of the orders dated 26.03.2010 having been served on the respondents as also in view of the categorical stand in the written submissions of orders dated 26.03.2010 staying the operation of order Annexure 'A' dated 9th of March 2010 having been conveyed to all the respondents on March 30, 2010. Even otherwise it does not stand to reason that the petitioners would not convey the orders of stay dated 26th of March 2010 to the respondents despite being fully aware that in terms of order Annexure 'A' dated 09.03.2010 they would stand relieved from duty w.e.f. 31.03.2010. Even otherwise it does not stand to reason that the petitioners would not convey the orders of stay dated 26th of March 2010 to the respondents despite being fully aware that in terms of order Annexure 'A' dated 09.03.2010 they would stand relieved from duty w.e.f. 31.03.2010. However ignoring the issue as to whether order dated 26th of March 2010 had been conveyed to the respondents or not, it cannot be ignored that there is no denial to the categorical stand of the petitioners of their having made representation Annexure 'D' and 'E' dated 16.03.2010 as also of their having filed the petition on 25.03.2010 impugning the decision of the respondents to retire the petitioners w.e.f. 31st of March 2010 and of the petitioner's having denied having made any such request for premature retirement and mentioning therein of their having been duped into obtaining their signatures on blank sheets on the pretext of giving them benefits/incentives for overtime, thereby fraud having been played and in the circumstances praying that request if any for premature retirement allegedly made by them be ignored and they be allowed to continue in-service till attaining their attaining the age of superannuation. Besides, Article 230 CSR Volume I contemplates a three month notice by the employee to the Government of his intention to retire from service subject to his fulfilling the conditions stipulated in Regulation 230. All the representations are of the period around August 2009. Majority of the representation mention illness etc as the reason for the employee requesting for premature retirement. The representations were not acted upon till acceptance of the request for voluntary/premature retirement to be effective from 31.03.2010. Thus the acceptance of the request also cannot be said to be in accordance with Article 230, CSR, Volume I. 11. Learned counsel for the petitioners has relied on the decision of the Hon'ble Supreme Court in Shambhu Murari Sinha v. Project and Development India Ltd., (2002) 3 SCC 437 wherein it was held as under:- "6. The short question to be decided is what was the effective date in the case in hand, before which the appellant could have withdrawn his offer of voluntary retirement under the Scheme. 7. The short question to be decided is what was the effective date in the case in hand, before which the appellant could have withdrawn his offer of voluntary retirement under the Scheme. 7. The only contention raised before us by the learned counsel for the appellant is that in view of the law laid down by this Court since 1978, the appellant was within his right to withdraw his option for voluntary retirement even after its acceptance but before the actual date of release from the employment. In support of this contention learned counsel has placed before us various decisions of this Court. 8. Per contra, the learned counsel for the respondent has contended that from the date of acceptance of the letter of voluntary retirement by the respondent, the relationship of employer and employee came to an end and, therefore, the appellant ceased to be an employee of the respondent w.e.f. 30-7-1997. Learned counsel also sought to raise the question of financial burden on the respondent-Company, which we need not consider while deciding the legal issue involved in the present appeal. 9. A Constitution Bench of this Court in Union of India v. Gopal Chandra Misra in paragraph 50 held that the general principle is that in the absence of a legal, contractual or constitutional bar, a "prospective" resignation can be withdrawn at any time before it becomes effective, and "it becomes effective when it operates to terminate the employment or the office tenure of the resignor". (SCC p. 317) (emphasis ours) As stated above in the present case in VRS, there was no indication regarding effective date of voluntary resignation and there is also no condition that once it was accepted it could not be withdrawn. 10. In Balram Gupta v. Union of India the principle laid down in Gopal Chandra Misra was summarised as follows: (SCC pp. 233-31, para 10) "A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates his tenure.". 11. In Balram Gupta case the appellant employee offered to voluntary retire from service w.e.f. 31-3-1981 and accordingly sent a letter within the notice period. 233-31, para 10) "A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates his tenure.". 11. In Balram Gupta case the appellant employee offered to voluntary retire from service w.e.f. 31-3-1981 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 authority concerned on the ground that the withdrawal of notice could only be with the specific approval of the authority. This 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 up to 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. 12. The decision in J.N. Srivastava v. Union of India is also to the same effect. This Court held as follows: (SCC p. 560, para 3) "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." 13. In Nand Keshwar Prasad v. Indian Farmers Fertilizers Coop. Ltd. in paragraph 11, this Court reiterated that it is open to the employee concerned to withdraw letter of resignation before the date indicated in the notice of voluntary retirement. It was also observed therein: (SCC pp. 464-65) [I] t appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the 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." 14. In Raj Kumar v. Union of India the normal rule has been stated as follows: (SCR p. 860 F-G) "[When a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter." 15. The above cases may not have direct application to the facts of the present case, however, the principles laid down therein deserve notice. 16. In Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia this Court went a step further and observed thus: (SCC p. 282, para 7) "7. 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. It was pointed out in that case that the acceptance of voluntary retirement was not unconditional and before the conditions could be complied with, the employee could withdraw from the Scheme. On those facts, the above observations were made. It is not necessary to consider whether in all cases, actual relief becomes the crucial date. However, the ratio of decision in Balram Gupta case coupled with the observations of the Constitution Bench in Gopal Chandra Misra case could usefully be applied to the present case. 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 7-8-1997 and 24-9-1997, but there was no response from the respondent. By office memorandum dated 25-9-1997 the appellant was released from the service and that too from the next day. Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated 7-8-1997 and 24-9-1997, but there was no response from the respondent. By office memorandum dated 25-9-1997 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. 26-9-1997, and, 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 the said relationship continued till 26-9-1997. 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. 19. We, therefore, hold that the respondent could not have refused to accept the withdrawal letter of the appellant as it was sent before the jural relationship of employee and employer came to an end. Consequently, the impugned judgment is liable to be set aside, which we hereby do. The appellant shall be entitled to rejoin his duty and he shall be paid all his salaries and other benefits during the period he was out from the service. The learned counsel for the respondent has stated that by this time the appellant might have retired from service on attaining the age of superannuation, if that be so, he shall be paid full salary and allowances for the entire period he was out of service till the date of his retirement and thereafter, he shall be entitled to get all retrial benefits counting the above period as if he was in service. 20. We, therefore, allow the appeal by setting aside the impugned judgment. We leave the parties to bear their own costs. 12. 20. We, therefore, allow the appeal by setting aside the impugned judgment. We leave the parties to bear their own costs. 12. In the absence of denial of receipt of representation Annexure 'D' and 'E' dated 16.03.2010, it is apparent that the respondent's could not have refused to accept the request of the petitioners for being allowed to continue in service since the representations were sent and the writ petition filed and interim order staying operation of order Annexure 'A' dated 09.03.2010 passed before the jural relationship of employee and employer came to an end. It is not disputed that the petitioners were paid salaries etc. till 31.03.2010, therefore, the jural relationship of employee and employer between the petitioners and the respondents did not come to an end on the date of acceptance of the voluntary retirement i.e. 29.03.2010 and the said relationship continued till 31.03.2010. As per law laid down by the Hon'ble Supreme Court in Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia 2002(3) SCC 437 unless the concerned employee is relieved of 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. Thus, the petitioners had locus poenitentiae to withdraw the alleged request for voluntary retirement before the relationship of employer and employee came to an end assuming for the sake of argument that the request for premature/voluntary retirement had been made by the petitioners. 13. Thus order Annexure 'F' dated 29th March 2010 was merely a clever device resorted to by respondent No. 4 to circumvent the interim orders of stay of operation of order Annexure A dated 09.03.2010. The action of the respondent's does not reflect fairness of action. In fact, the action of the respondents discloses violation of the principles of Natural Justice as well as the Rule of Law. The same tantamounts to overreaching the process of law by showing blatant defiance to the orders of stay passed by the High Court. The impugned action is clearly a gross misuse of the process of law. Viewed in the context of the position as has been noted above, the impugned orders i.e. Annexure 'A' and 'F' dated 9th of March 2010 and 29th of March 2010 respectively are legally unsustainable and are liable to be quashed. The impugned action is clearly a gross misuse of the process of law. Viewed in the context of the position as has been noted above, the impugned orders i.e. Annexure 'A' and 'F' dated 9th of March 2010 and 29th of March 2010 respectively are legally unsustainable and are liable to be quashed. Accordingly, impugned orders Annexure 'A' and 'F' dated 9th of March 2010 and 29th of March 2010 are quashed. 14. Petitioners are held entitled to be treated as continuing in service up to the date of their attaining the age of superannuation as also to all consequential benefits including salary for the period w.e.f. 01.04.2010 till their attaining the age of superannuation. Likewise petitioners are entitled to calculation of their retrial benefits by treating them to have continued in-service up to the age on which they would have retired on attaining the age of superannuation as per rules applicable. Any benefit admissible to an employee on account of extension in the age of superannuation would be admissible to the petitioners provided the petitioners had not already attained the maximum age of superannuation prior to the date w.e.f. which the enhancement in age of superannuation was effective. 15. Consequential benefits be released to the petitioners within a period of 3 months from today failing which the same shall carry interest at the rate of 6% per annum with effect from the date of entitlement to the consequential benefits till the same are paid. In case the benefits are not released to the petitioners within the stipulated period of time, interest payable on the amount payable to the petitioners, would be payable by the Government which would be entitled to recover the same from the officer concerned responsible for non-compliance with the orders of this Court within the stipulated period of time. It is further ordered that since the impugned order have been passed in derogation of the Rule of Law as well as the principles of Natural Justice and despite the petitioners having made a categorical request vide representations Annexure 'D' and 'E' dated 16.03.2010 denying having made any request for premature retirement and requesting for ignoring any such request and allowing them to continue in service till their attaining the age of superannuation, the Government has been burdened with having to pay salary and consequential benefits to the petitioners without work having been taken from the petitioners. Consequentially, the Government through the Chief Secretary is directed to initiate departmental/ judicial proceedings against those responsible for recovery of loss caused to the Government. Needful be done within six months and compliance report be submitted with Registrar Judicial within one month thereafter. Writ petition allowed in aforementioned terms. Copy of this order be forthwith communicated to the Chief Secretary, State of J&K for ensuring compliance.