Anand Swaroop Singh vs Union of India and others

Hon''ble Shri Justice K.K. Trivedi

The only grievance of the petitioner is that he made an application for voluntary retirement on 15th August, 2011, which application was pending consideration before the respondents when he applied for grant of leave for the purposes of treatment of his ailing wife, which was granted and after availing of leave he joined the duties. However, all of a sudden, the petitioner was served with an order of voluntary retirement issued on 09.11.2011. On receipt of the said order, the petitioner made an application for cancellation of the same, virtually demanding withdrawal of his notice of voluntary retirement on 12.11.2011. Though the voluntary retirement was to be given effect on 15.11.2011 and such a notice was already withdrawn much before the aforesaid date, yet the petitioner was not allowed to join back the duties, therefore, he made representation on 07.12.2011 and has come to this Court thereafter challenging the action of the respondents in voluntary retiring the petitioner. In response to the notice issued by this Court, the respondents have filed the return. They have contended that the application was submitted by the petitioner on 15.08.2011 and thereafter on 08.11.2011 the petitioner has again made a reminder. Considering the aforesaid, the petitioner was called in person on 09.11.2011 and his voluntary retirement was accepted w.e.f. 15.11.2011. In view of this, it is contended that subsequent prayer made by the petitioner after passing of the order by the respondents on the notice of voluntary retirement was not to be looked into and, therefore, rightly the petitioner is not permitted to join the duties.

Learned Counsel for the petitioner vehemently contended that undisputedly the petitioner gave a notice of voluntary retirement only on account of certain frustration as he was not being granted leave for the purpose of treatment of his ailing wife. Subsequently leave was granted and after treatment of his wife, he joined back the duties. There was no occasion for him to appear before the competent authority to insist for an action on the notice of voluntary retirement. When he came to know about passing of such an order before even the date on which such voluntary retirement was to be given effect, the notice of voluntary retirement was withdrawn by way of making a prayer for cancellation of said order vide Annexure P-5. Thus, it is contended that in view of the law laid-down by the Apex Court, the respondents were liable to cancel the voluntary retirement of the petitioner and to allow him to join the duties.

Per contra, it is contended by learned Counsel appearing for the respondents that it was not permissible as once the order is passed accepting the notice for voluntary retirement, there remains nothing to be done in the same and the order earlier passed was not to be recalled only because a prayer was made by the petitioner subsequently, before the date on which the order of voluntary retirement was to become effective. It is contended that there is no force in the writ petition and the same deserves to be dismissed.

Heard learned Counsel for the parties at length and considered the law laid-down by the Apex Court. It is settled position of law that the voluntary retirement, if was not given effect to, could have been withdrawn as was demanded by the employee concerned. If a prayer is made much before the date on which the notice of voluntary retirement was to be given effect to, the same was to be considered and the order accepting the voluntary retirement notice could have been recalled if the effective date had not reached. In view of this position of law, it was not proper on the part of the respondents to insist that since they had passed the order of voluntary retirement of the petitioner, he cannot be allowed to withdraw the notice of voluntary retirement. Such an act of the respondents cannot be considered as correct in view of the law laid-down by the Apex Court in the case of Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another, wherein the law laid-down by the Apex Court on earlier occasion in the case of J.N. Srivastava Vs. Union of India (UOI) and Another, and in the case of Balram Gupta vs. Union of India, 1988 SCC (L & S) 126 were looked into and it has been categorically held thus :

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. 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 respondent 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.

We, therefore, hold that the respondent could not have refused to accept the resignation 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 retiral benefits counting the above period as if he was in service.

In view of the aforesaid, the order impugned cannot be sustained. Since the petitioner has already withdrawn his voluntary retirement before 15.11.2011, it was necessary on the part of the respondents to cancel and recall the order dated 09.11.2011.

Consequently, the writ petition is allowed. Impugned order dated 09.11.2011 (Annexure P-4) is hereby quashed. The petitioner be reinstated in service and be allowed to continue on his post till he attains the age of superannuation or is otherwise to be removed as per law. The petitioner will not get the benefit of wages for the period of absence except the pension if paid but will get the benefits of aforesaid period of absence for the purposes of fixation of pay, allowances, seniority and retiral dues. With the aforesaid the writ petition is allowed. There shall be no order as to costs.