M. Bagyalakshmi vs State of Tamil Nadu

Prayer in the writ petition is to quash the order of the third respondent in his proceedings Na.Ka.D.No.1647/2003, dated 8.2.2003 and direct

the second respondent to cancel the request letter dated 31.10.20 02 given for voluntary retirement and to allow the petitioner to work till her

superannuation with all benefits.

The brief facts of the case are that the petitioner joined as a Secondary Grade Teacher at Adi Dravida Welfare School, Kadaperi on 22.7.1982

and she worked there upto 17.12.1996. She was transferred to Ramapuram Adi Dravida Welfare School on 18.12.1996 and while working in the

said school, she gave a letter dated 31 .10.2002 to the respondents requesting to permit her to go on voluntary retirement with effect from

31.1.2003. Petitioner further submits that before passing any order by the respondents as to the acceptance of her proposal to go on voluntary

retirement and before completion of the notice period of three months, i.e. before 31.1.2003, she made further request by letter dated 27.1.2003

to the second respondent herein, to cancel her earlier proposal, made on 31.10.2002, to go on voluntary retirement. Petitioner further states that

she also sent a telegram to the District Adi Dravida Welfare Officer, Vellore on 28.1.2003 stating that due to change of circumstances, she had

decided to withdraw her letter dated 31.10.2002 and also prayed to allow her to continue as Secondary Grade Teacher till her superannuation. As

the petitioner was waiting for an order accepting her withdrawal from her earlier proposal to go on voluntary retirement, on 8.2.2003 the impugned

order was passed by the third respondent stating that as per the orders of the second respondent dated 4.2.2003, petitioner was directed to go on

voluntary retirement with effect from 31.1.2003.

The learned counsel appearing for the petitioner submitted that the petitioner having completed more than twenty years of service, due to her

family circumstances, sent a proposal for voluntary retirement on 31.10.2002 with three months notice as per sub-rule (3) of Rule 56 of the

Fundamental Rules and subsequently, due to her family circumstances, she sent a letter dated 27.1.2003 withdrawing her earlier proposal to go on

voluntary retirement, followed by a telegram on 28.1 .2003 and a further letter dated 29.1.2003. It is further submitted that the petitioner was

allowed to work till 10.2.2003 and the impugned order dated 8.2.2003 was served on the petitioner only on 10.2.200 3. It is further contended

by the learned counsel that the withdrawal letter having been sent as early as on 27.1.2003, before expiry of three months notice period and before

the date of acceptance of her original proposal, the respondents are bound to accept same and consequently, the impugned order passed by the

respondents accepting her original proposal dated 31.10.2002, ignoring her subsequent request made on 27.1.2003 is unsustainable and liable to

be quashed. In support of his contentions, the learned counsel relied on the decisions reported in Shambhu Murari Sinha Vs. Project and

Development India and Another, ; Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another, and 2005 8 Sup 454 (Hindustan

Copper Ltd. & Anr. v. Banshi Lan & Ors.).

Heard Mr.Sanjay Ramaswamy, learned Government Advocate on behalf of the respondents. The learned Government Advocate pointed out

that the petitioner just sent the telegram from Chennai, which was received by the respondents on 29.1.2003 and did not even care to get approval

of the appointing authority on the withdrawal petition. It is submitted that the second respondent cannot take action on the basis of the telegram,

which was not authenticated. The learned Government Advocate further argued that having sent her proposal for voluntary retirement on

31.10.2002 on the ground that she is a chronic patient and was not able to perform her duty for one year, just three days prior to the expiry of 90

days, it is not open to the petitioner to go back from the same.

I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned Government Advocate.

(a) In the decision reported in Shambhu Murari Sinha Vs. Project and Development India and Another, , in paragraph 5, the Honourable Supreme

Court held that it is open to a person having exercised option of voluntary retirement, to withdraw the said offer after its acceptance, but before it is

made effective. The Supreme Court observed that the said issue was squarely answered by earlier three decisions, namely, Balram Gupta Vs.

Union of India (UOI) and Anr, ; J.N. Srivastava Vs. Union of India (UOI) and Another, ; and Power Finance Corporation Ltd. Vs. Pramod

Kumar Bhatia, and held that the resignation in spite of its acceptance can be withdrawn before the effective date.

(b) In the second cited decision reported in Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another, , in paragraph 18 it is

held,

Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated August

07, 1997 and September 24, 1997, but there was no response from the respondent. By office memorandum dated 25th September, 1 997, 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. 26th September, 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 said relationship continued till 26th of September,

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.

(c) In the recent decision of the Supreme Court reported in 2005 8 Sup 454 (Hindustan Copper Ltd. & Anr. v. Banshi Lal & Ors.), the Apex

Court ruled that Voluntary Retirement Scheme though contained a clause that option once exercised shall not be withdrawn, scheme being

contractual in nature, provisions of Indian Contract Act would apply and offer made by an employee could be withdrawn by him before it was

accepted.

(d) This Court in the decision reported in (1995) 2 MLJ 291 (S. David v. The Correspondent, St.Gabriels Higher Secondary School, Madras and

Ors.), relying on the judgments of the Supreme Court reported in Balram Gupta Vs. Union of India (UOI) and Anr, and Jai Ram Vs. Union of

India (UOI), , held thus,

... it is always open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite

permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so only as long

as he continues in service.

In paragraph 8 of the said judgment this Court pointed out,

... The rule which provides for the appointing authority to approve the request of an employee for withdrawal of his earlier application is not

intended to confer an arbitrary power on the employer. The power so conferred on the employer is coupled with a duty and the same is required

to be exercised reasonably, having regard to the facts and circumstances of the case.

From the above referred decisions and the documents filed in this case, particularly the letters dated 31.10.2002, 27.1.2003, 28.1.200 3 and

29.1.2003, it is clear that the impugned order dated 8.2.2003 cannot be sustained. Admittedly, even according to the counter affidavit, the

petitioner had intimated her willingness to withdraw her earlier proposal to go on voluntary retirement, prior to 31.1.2003. It is the specific case of

the parties herein that no order of acceptance of the proposal for voluntary retirement was passed prior to 31.1.2 003 and the only order passed

by the third respondent is the impugned order dated 8.2.2003, in which a reference is made to the order passed by the second respondent on

4.2.2003. Therefore it is clear that only after the receipt of withdrawal letter given by the petitioner, the impugned order was passed and hence the

same is unsustainable, in the light of the decisions of the Supreme Court referred to above.

It is to be noted that FR 56(3)(g) also contemplates withdrawal of notice of voluntary retirement and if the withdrawal letter is given after

acceptance, with the approval of the appointing authority, it can be withdrawn before expiry of the period of notice. Here in this case, admittedly

the letter of withdrawal was made prior to its acceptance and therefore the impugned order is illegal and unsustainable.

In the result, the writ petition is allowed. The petitioner is deemed to have been in service till 31.1.2006, the date of her superannuation. She is

entitled to get salary and other benefits from 10.2 .2003 to 31.1.2006, as the impugned order is found to be erroneous and contrary to the various

pronouncements of the Honourable Supreme Court and this Court, cited supra. The arrears payable to the petitioner shall be calculated and paid

to her within a period of three months from the date of receipt of copy of this order. No costs.