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2018 DIGILAW 1164 (GAU)

Ahsan Ali v. State of Assam

2018-08-07

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. Heard Mr. H. Das, the learned counsel for the petitioner and Mr. M.R. Adhikari, the learned Senior Government Advocate, for all the respondents. 2. The brief facts for disposal of the writ petition may be narrated at the outset. The petitioner was appointed as Additional Mondal vide order dated 21.09.1993 (Annexure-I) by the respondent No.4 and since his appointment, he was working in such capacity. On 21.10.2017 (Annexure-II) on health grounds, the petitioner submitted an application to the respondent No.5 to allow him to retire from service voluntarily from the date of his application. The application of the petitioner was thereafter accepted by the respondent No.4, who is the appointing authority, vide order dated 20.11.2017 (Annexure-III). In the order dated 20.11.2017 it was mentioned that the petitioner was allowed to go on voluntary retirement in terms of the provision contained in F.R. 56 (c) w.e.f 31.01.2018 A.N. in public interest. 3. Subsequently, the petitioner submitted an application before the respondent No.2 on 30.12.2017 (Annexure-IV) seeking withdrawal of his application for voluntary retirement from service with a prayer that he may be allowed to join back in his service. The said application was submitted through the respondent No.4 and therefore, the respondent No.4 vide covering letter dated 17.01.2018 (Annexure-V) forwarded the petitioner's application to the respondent No.2 for perusal and necessary action. However, the respondent No.2 through the Additional Director of Land Records returned the application of the petitioner to the respondent No.4 on 24.01.2018 (Annexure-VI) asking the respondent No.4 to take a decision from his end since he was the appointing authority. Since then, the respondent No.4 did not take any decision but allowed the petitioner to voluntarily retire from service on 31.01.2018 A.N. in terms of the order that was passed on 21.11.2017 (Annexure-III). Aggrieved, the petitioner is before this Court. 4. Mr. H. Das, the learned counsel for the petitioner submits that although the application for voluntary retirement submitted by the petitioner was accepted by the respondent No.4 vide order dated 20.11.2017 but however, the effective date for allowing him to go on voluntary retirement was fixed as 31.01.2018. The petitioner having sought withdrawal of his voluntary retirement application on 30.12.2017, the respondent No.4 ought to have acted upon the withdrawal application submitted by the petitioner by allowing him to continue in service. The petitioner having sought withdrawal of his voluntary retirement application on 30.12.2017, the respondent No.4 ought to have acted upon the withdrawal application submitted by the petitioner by allowing him to continue in service. In this connection the learned counsel for the petitioner has drawn the attention of this Court to F.R. 56 (c) which provides as under: "F.R.56(c) Any Government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier." 5. Relying upon the provision abstracted above, the learned counsel for the petitioner submits that since the petitioner submitted his application for withdrawing his application for voluntary retirement within the prescribed 3 (three) months period, the respondent No.4 ought to have accepted his application and allow him to continue in his service. Mr. H. Das further submits that although the petitioner was allowed to go on voluntary retirement vide order dated 20.11.2017, the effective date was fixed as 31.01.2018 and therefore, the petitioner in the meantime was drawing his salary for the month of November and December of 2017 and January, 2018 as well. Therefore, there was a subsisting employer and employee relationship between the Department and the petitioner and therefore, even after acceptance of the petitioner's application for voluntary retirement, the petitioner clearly has the option to withdraw his application for voluntary retirement before the due date fixed by the authority concerned. In support of his submission, the learned counsel relies upon the following decisions: (i) Shambhu Murari Sinha vs. Project & Development India Ltd. & Anr., (2002) 3 SCC 437 (ii) Madhya Pradesh State Road Transport Corporation Vs. Manoj Kumar & Anr., (2016) 9 SCC 375 (iii) Jitendra Dev Barma Vs. State of Tripura & Anr., (2006) 2 GauLT 78 6. Mr. M.R. Adhikari, the learned Additional Senior Government Advocate for the State respondents submits that the petitioner applied for voluntary retirement on his own free will and therefore, once the same was accepted by the competent authority, the petitioner cannot be allowed to withdraw his application. He submits that in his application, the petitioner sought voluntary retirement with immediate effect. The application was then accepted by the competent authority i.e. the respondent No.4 vide order dated 20.11.2017. He submits that in his application, the petitioner sought voluntary retirement with immediate effect. The application was then accepted by the competent authority i.e. the respondent No.4 vide order dated 20.11.2017. Therefore, the application for voluntary retirement submitted by the petitioner being an unconditional one, the petitioner will have no option to withdraw the same at a later stage. To substantiate his submission the learned State Counsel relies upon the decision rendered by a Division Bench of this Court (as it was then) namely, Dharitri Bora Vs. Gauhati High Court and Anr., (2014) 4 GauLT 271 . Referring to Paragraph-20 of the said judgment, the learned counsel submits that the Court has held that when an employee has expressed his desire to retire from the job without mentioning any prospective date of resignation, the same will be effective immediately on acceptance by the appropriate authority. He submits on facts, the petitioner in Dharitri Bora submitted her resignation letter on 03.10.2012 and the same was accepted by the authority concerned on 05.10.2012. Court therefore held that the petitioner cannot seek withdrawal of the application once the same was submitted unconditionally and was accepted. The learned State Counsel, therefore, submits that by applying the ratio laid down by the Division Bench to the present case, the petitioner clearly has no case and therefore, the writ petition should be dismissed. 7. I have heard the learned counsel for the rival parties and I have also perused the materials available on record including the decision relied by them. 8. As may be noticed, the facts broadly are not disputed and therefore, the only issue to be decided is as to whether the application for withdrawal of voluntary retirement submitted by the petitioner which has been accepted by the authority concerned can be withdrawn, since it was submitted prior to the actual date from which he was allowed to go on retirement i.e. 31.01.2018. FR 56(c) provides that a Government servant who has attained the age of 50 years or has completed 25 years of service, whichever is earlier, may give a notice of not less than 3 (three) months in writing to the appropriate authority seeking retirement from his service. FR 56(c) provides that a Government servant who has attained the age of 50 years or has completed 25 years of service, whichever is earlier, may give a notice of not less than 3 (three) months in writing to the appropriate authority seeking retirement from his service. Besides the requirement of giving notice of not less than 3 (three) months by the employee, there is no further provision for a situation if the application for voluntary retirement is sought to be withdrawn before completion of the 3 (three) months period. In the case of Manoj Kumar & Anr., the Apex Court held that if the employment of the employee concerned is governed by a scheme, application for resignation can be made so long as it is within the validity period of the scheme concerned irrespective of the fact that the scheme provides that application for resignation once given cannot be withdrawn. This will go to show that the employee concerned will have the option to withdraw his resignation if the same is within the validity period of the scheme concerned. In the present case admittedly the petitioner is not employed under any particular scheme but is an employee of the State Government. Therefore, there is no question of there being a validity period except the petitioner attaining the age of superannuation. 9. In the case of Shambhu Murari Sinha, the Apex Court held that since the employee concerned was paid his salary till the date of his actual release from the service, the relationship of an employee and an employer subsisted till the payment of such salary. The employee concerned having sought withdrawal of his retirement under the voluntary retirement scheme, his application ought to have been accepted by the employer concerned. It was under such circumstances, the Apex Court granted relief to the employee concerned. It was further directed that in the event if the employee had already attained the age of superannuation prior to his retirement, full salary is to be paid to him and the period for which he was out of service till his superannuation is to be adjusted as per the relevant leave rules. 10. It was further directed that in the event if the employee had already attained the age of superannuation prior to his retirement, full salary is to be paid to him and the period for which he was out of service till his superannuation is to be adjusted as per the relevant leave rules. 10. In the case of Jitendra Dev Barma, a coordinate Bench of this court while considering a case of a similar nature has held that the option to withdraw the voluntary retirement by the employee concerned subsisted so long as the period of notice prescribed i.e. 3 (three) months had not expired. Therefore, the application for withdrawing the voluntary retirement submitted by the employee concerned before the expiry of 3 (three) months should have been accepted by the employer concerned. Resultantly the employer was directed to allow the employee to continue in service in view of the withdrawal of the application for voluntary retirement within the prescribed period of notice. 11. In the case of Dharitri Barman , a Division Bench of this Court held that in absence of a prospective date given in the letter of resignation by the employee concerned, the same would become effective immediately on acceptance of the resignation letter. The said decision in my respectful understanding will not apply to the present case, inasmuch as, the respondent No.4 while accepting the petitioner's application for voluntary retirement fixed a future date i.e. 31.01.2018 as the effective date for his retirement. As may be noticed, the petitioner submitted his application for withdrawing his application for voluntary retirement on 30.12.2017 and that too, while he was continuing to receive his monthly salary. Therefore, as held by the Apex Court in Shambhu Murari Sinha and Manoj Kumar & Anr., the relationship of an employee with the employer subsisted and moreover the period of notice prescribed i.e. 3 (three) months had also not lapsed when the application for withdrawing the voluntary retirement was made by the petitioner. Therefore, in my considered opinion the application for withdrawal of his voluntary retirement which was accepted by the respondent authority can be withdrawn by the petitioner. 12. Under the facts and circumstances of the case, I find merit in the writ petition and the order dated 20.11.2017 (Annexure-III) releasing the petitioner from service on voluntary retirement with effect from 31.01.2018 is set aside. 12. Under the facts and circumstances of the case, I find merit in the writ petition and the order dated 20.11.2017 (Annexure-III) releasing the petitioner from service on voluntary retirement with effect from 31.01.2018 is set aside. Consequently, the petitioner shall be allowed to join back his service immediately and the period for which he was out of service shall be settled by the respondent authority concerned in accordance with law and the same shall be done within the outer limit of 8 (eight) weeks from the date of receipt of the certified copy of this order. 13. With the above observations and directions, this writ petition stands allowed. No cost.