BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/05/2011 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL W.P.(MD)No.9583 of 2006 D.Renuga Devi .. Petitioner V. 1.The Director of Collegiate Education, Chennai-6. 2.The Joint Director of Collegiate Education, Madurai - 625 020. 3.The Secretary, Devanagar Arts College, Arupukottai - 626 101. 4.The Secretary to Government of Tamil Nadu Department of Higher Education, Fort St. George, Chennai. .. Respondents Prayer Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the proceedings in DAC/A44/2006-07/228 dated 15.09.2006 on the file of the 3rd Respondent and quash the same and further directing the Respondent to pay the death cum retirement benefits and family pension of the Petitioner's husband Mr.R.Ramaraj to the Petitioner. !For Petitioner ... M/s.G.Prabhu Rajadurai A.Abdul Kadhar ^For RR 1, 2 and 4 ... Mr.D.Sasikumar Government Advocate For RR 3 ... Mr.K.M.Vijaiyakumar :ORDER
The Petitioner has filed the present Writ of Certiorarified Mandamus in
calling for the records pertaining to the proceedings in DAC/A44/2006-07/228
dated 15.09.2006 on the file of the 3rd Respondent and to quash the same.
Further, the Petitioner has also sought the relief of issuance of direction by
this Court in directing the Respondents to pay the Death cum Retirement Benefits
and Family pension of the Petitioner’s husband R.Ramaraj to her.
2.The Petitioner’s husband R.Ramaraj was appointed as a Physical Director,
Devanagar Arts College, Arupukottai (3rd Respondent) on 14.09.1970. She got
married to her husband in the year 1975. Her husband served as a Physical
Director in the 3rd Respondent’s College without any blemish. He became mentally
unstable and left the house on 12.1.1995. His whereabouts were not known for
about two years. She intimated about this fact to the 3rd Respondent’s College
promptly. Her efforts to trace her husband were not fruitful.
3.The Principal of the 3rd Respondent’s College, by a certificate dated
06.10.1997, certified that they had reported the absence of her husband to the
Educational Authorities. She made an application on 03.12.1997 to the College
authorities on the advise of the Principal to pay the salary and other benefits
to her husband. However, her husband was brought by some persons from Ramalinga
Adigalar Ashram, Vadalur in a very sick condition. Because of her husband’s
health condition, he could not join duty. She arranged for his hospitalisation
and he recovered gradually. After his recovery, he gave a representation on
14.09.1998 to the 3rd Respondent/College praying that his absence may be treated
as leave on loss of pay and permit him to join duty. His representation was
forwarded to the Respondents 1 and 2/Authorities. The 3rd Respondent/College by
a separate letter in October 1998 requested the 1st Respondent/Authority to
consider her husband’s representation sympathetically and to permit him to
rejoin duty treating his absence as leave on loss of pay.
4.Also, the 2nd Respondent/Authority by virtue of the letter dated
23.8.1999 requested for necessary directions from the 1st Respondent to allow
her husband to rejoin duty. But no further step was taken thereafter. As such,
her husband who had recovered from his illness fully slipped into his illness
once again because of the lethargic attitude of the authorities concerned.
5.According to the Petitioner, the 3rd Respondent/Secretary of the College
advised her husband for voluntary retirement by paying 3 months salary in view
of the notice period. Her husband paid a sum of Rs.30,000/- being the salary for
3 months since he had no other option and applied for voluntary retirement as he
had already completed 25 years of service. The said application was not
considered. Again her husband made a representation on 01.06.2000 with a request
to consider his plea in this regard. In view of the mental strain, he became
insane and vanished from the house in July 2000. Till today, inspite of their
best efforts, they could not trace him. Further, his whereabouts are still
unknown. Her husband’s 58th birthday was on 10.05.2004 on which date he would
have retired on superannuation.
6.The 3rd Respondent, after the date of superannuation of Petitioner’s
husband, informed the Petitioner by a letter dated 22.06.2004 to inform the
whereabouts of her husband so as to take disciplinary proceedings against him.
She gave a reply on 05.07.2004 to the 3rd Respondent stating that already a sum
of Rs.30,000/- was paid based on the request to retire her husband voluntarily
and since she could not trace her husband, the retirement benefits may be paid
to her. She submitted another certificate to the 1st Respondent requesting the
retirement benefits to her husband. In the said letter, she gave an undertaking
that in case her husband returns and objects to any payment then she is returned
the money received to the Government.
7.The 1st Respondent considering a representation and affidavit proposed
to grant the pension benefits by a letter in Na.ka.No.631/D2/2006 dated
06.01.2006 requested the 4th Respondent to issue necessary Government Order to
pay the retirement benefits to her. But no action was taken on the said letter.
8.The Petitioner made a detailed representation to the Respondents on
24.06.2006 to pay the retirement benefits of her husband. The 2nd Respondent,
after receipt of representation, directed the 3rd Respondent to take necessary
action as per rules. However, the Petitioner was shocked to note in the said
letter that there was a reference that her husband was dismissed from service on
21.7.2006. Another letter was received from the 2nd Respondent wherein she found
that the College Committee passed a resolution to remove her husband from
service and the same was approved by the 2nd Respondent. Till date no
disciplinary action was initiated against her husband and neither herself nor
her husband received any show cause notice.
9.The Petitioner made a request to the College to provide her a copy of
any disciplinary proceedings initiated against her husband and the order passed
thereon. Thereafter, the 3rd Respondent issued an order in Reference
No.DAC/A44/2006-07/228 dated 15.09.2006 mentioning that pursuant to the
resolution of the College Committee dated 27.03.2006 and the approval of the 2nd
Respondent dated 05.06.2006 her husband R.Ramaraj was removed from service with
effect from 11.02.1995. The said order of the 3rd Respondent is an arbitrary and
an illegal one.
10.The Learned Counsel for the Petitioner contends that the impugned order
of dismissal dated 15.09.2006 passed against her husband without conducting an
enquiry.
11.Advancing his arguments, the Learned Counsel for the Petitioner
contends that her husband R.Ramaraj suffered from mental unstableness which is
known to the Respondents especially the 3rd Respondent/College and therefore,
there cannot be any dismissal or any such punishment in the eye of law.
12.Proceeding further, the Learned Counsel for the Petitioner takes a plea
that the order of dismissal dated 15.09.2006 passed against her husband is an
illegal and invalid one in law because of the simple fact that no order of
dismissal can be passed by a competent authority after the date of
superannuation and disappearance of her husband.
13.The Learned Counsel for the Petitioner submits that the Petitioner is
the legally wedded wife of her husband R.Ramaraj and therefore, she is entitled
to claim all the benefits payable to her on the death or retirement of her
husband when the same has been recommended by the 1st Respondent. Also, the
stand of the Petitioner is that at no point of time her husband R.Ramaraj has
been placed under suspension by the 3rd Respondent/College and also that no
subsistence allowance or salary was paid.
14.The main contention advanced by the Learned Counsel for the Petitioner
is that although her husband R.Ramaraj disappeared due to his mental illness and
her application for the payment of retirement benefits was favourably considered
by the Respondents at various point of time but no decision was taken, yet, she
is entitled to receive the dues like her husband’s salary, leave encashment,
GPF, SPF benefits whether her husband was removed from service or not which are
to be paid to her based on First Information Report about her husband’s
disappearance.
15.In the counter, the 2nd Respondent has averred that the Petitioner’s
husband was appointed as Physical Director on 01.07.1970 in 3rd Respondent’s
College, Aruppukottai, an aided one in Virdhunagar District by the 3rd
Respondent and he served in College till 10.02.1995. After 10.02.1995 he had not
turned up for duty. The 3rd Respondent/ College initiated disciplinary action
against the Petitioner’s husband for not reporting to duty without any
information and notice or applying for any kind of leave. As per instructions of
the G.O.Ms.No.1046, Personnel and Administrative Reforms (FR. III) Department
dated 13.11.87, if a Government servant (permanent and approved probationer) who
had completed five years of service and not turned up for duty for a continuous
period of one year at a stretch, then, the disciplinary action may be taken
against him as per rules.
16.The Management/College took disciplinary action against the
Petitioner’s husband by issuance of show cause notice [sent by registered post
to the residential address] as to why disciplinary action should not be
initiated against him for his unauthorised absence with effect from 11.2.1995.
Since her husband left the service without giving any reference or provided the
contact address, the Notice/Tapals sent to the address (as per records available
in the College) was returned back by the postal authorities with an endorsement
‘It could not be delivered’. The 3rd Respondent/College thereafter asked the 2nd
Respondent/Authority for further action. The 2nd Respondent based on the request
of the 3rd Respondent informed in L.Dis.No.3201/D2/96 dated 28.5.96 that ‘paper
advertisement’ be given in the matter and to pursue the further action.
17.The 3rd Respondent/College advertised in a paper ‘Daily Thanthi’ a
‘Caution Notice’ mentioning that ‘Thiru. Ramaraj should explain his unauthorised
absence without applying for any kind of leave within 15 days from the date of
publication, otherwise he will be terminated from service permanently’. Even
after the issuance of the said public notice in the Daily Thanthi Newspaper,
there was no response from the Petitioner’s husband R.Ramaraj (Physical
Director).
18.The Petitioner on 03.12.1997 addressed to the 2nd Respondent/Authority
through the 3rd Respondent mentioned that her husband absconded with effect from
12.1.1995 and his whereabouts were not known and she lost the hope that he would
come back again. Also, she stated that as the legal heir she is entitled to
receive the benefits of her husband.
19.However, the Petitioner’s husband through his letter dated 14.9.98
requested the Management to permit him to join duty and to treat the period of
his unauthorised absence as medical leave with eligible pay or without pay.
Further, in another letter (undated) he requested the Management to relieve him
service by accepting his voluntary retirement petition on the ground of his ill
health. The 1st Respondent/Director of Collegiate Education, Chennai issued
clarifications through his Letter in L.Dis.No.65941/Q4/98 dated 21.1.2000 to
initiate disciplinary action against Petitioner’s husband for his unauthorised
absence and not turning up for duty with effect from 11.02.1995 which was also
confirmed by the 1st Respondent as per letter dated 06.06.2000. In the
meanwhile, the Petitioner’s husband returned back home submitted a written
requisition dated 1.8.2001 to the 3rd Respondent stating that because of his
deteriorated health condition he may be permitted to go on Voluntary Retirement
with effect from 10.02.1995 on payment of three months pay in lieu of 3 months
notice.
20.The 3rd Respondent/College contrary to the orders passed by the 1st
Respondent/Director of Collegiate Education, Chennai vide his letter dated
21.01.2000 had accepted the voluntary retirement notice given by the individual
and unanimously passed a resolution in the College Council Meeting held on
14.08.2001 and accepted 3 months notice sum of Rs.16,470/- which was remitted
into Government account. The 3rd Respondent/College Authority’s action in
accepting 3 months notice sum was negatived by the 2nd Respondent/Joint Director
of Collegiate Education, Madurai-20 in Rc.No.7413/D2/98 dated 12.12.2001 citing
the clarifications issued by the 1st Respondent/ Director of Collegiate
Education, Chennai. Left with no other option, the 3rd Respondent/College in
order to solve the problem decided to award punishment as per Schedule-I, Sub-
clause (1) Rule 12(2) of Tamil Nadu Private Colleges (Regulation) Act, 1976, as
per the guidelines issued in G.O.Ms.No.1046 P & AR (FR.III) Department dated
13.11.1997 and as per instructions specified in Government Letter
No.8699/FR.III/91-5 P & AR Department dated 8.8.1991, mentioning the long
absence for a period of more than a year and as per resolution passed in College
Council Meeting held on 27.3.2006.
21. The 3rd Respondent sent a proposal to the 2nd Respondent/Competent
Authority viz., Joint Director of Collegiate Education, Madurai seeking his
approval to dismiss the Petitioner’s husband. The 2nd Respondent after perusing
all records and connected documents accorded approval for the action taken by
the 3rd Respondent/College to dismiss the Petitioner’s husband R.Ramaraj,
Physical Director with effect from 11.02.1995 as per Sub-clause 12(2) Schedule-I
of Tamil Nadu Private Colleges (Regulation) Act, 1976.
22.Inasmuch as the Petitioner’s husband R.Ramaraj was dismissed from
service permanently with effect from 11.02.1995 as per resolution passed by the
College Council and in view of prior approval by the competent authority, his
Legal Heir is not eligible to receive the family pension as per rules. Necessary
action was taken to close the Aided College Provident Fund Account of the
Petitioner’s husband.
23.The categorical stand of the 2nd Respondent is that since the
termination order dated 15.09.2006 of Petitioner’s husband was unanimously
passed by the College Committee constituted by the 3rd Respondent in accordance
with the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976
and also because of the prior approval for Petitioner’s husband’s termination
was obtained from the 2nd Respondent/Joint Director of Collegiate Education,
Madruai as per rules, the Writ Petition is liable to be dismissed.
24.The Secretary of the 3rd Respondent/College in his counter has among
other things observed that ‘the Petitioner’s husband R.Ramaraj (Physical
Director) absented himself unauthorisedly from duty 12.01.1995 and this was
intimated by the College to the Higher Authorities of the Department of
Collegiate Education. By means of a notice dated 29.11.1995 the Petitioner’s
husband was requested to explain in writing the reasons for his absence from
duty and as to whey disciplinary action should not be taken against him on or
before 30.12.1995. The said notice returned unserved. A similar memo dated
22.01.1996 was sent to the Petitioner’s husband and this was returned with an
endorsement ‘party left without intimation’. As such, the 3rd Respondent/College
gave a paper publication on 17.o7.1996 to the effect that the Petitioner’s
husband will be removed from service if explanation was not submitted to the
College as regards the his unauthorised absence within 15 days therefrom.
25.The Petitioner on 03.12.1997 approached the 3rd Respondent/ College by
submitting a representation with a request to forward the same to the 2nd
Respondent mentioning that her husband R.Ramaraj disappeared from 12.01.1995 and
she had not known the whereabouts of her husband. Further, she also made a
request to pay the remaining salary of other monitory benefits belonging to her
husband. The Petitioner’s husband suddenly appeared before the Principal of the
3rd Respondent/College on 14.09.19998 seeking permission by furnishing a
representation to rejoin duty excusing the long period of his unauthorised
absence and treating the period as leave on loss of pay on humanitarian grounds,
By another representation dated 14.09.1998 the Petitioner’s husband R.Ramaraj
requested the 3rd Respondent/College to permit him to go on voluntary retirement
on payment of three months salary thereby expressed his inability to continue in
service.
26.The representation of the Petitioner’s husband dated 14.09.1998 was
communicated to the 1st Respondent/Director of Collegiate Education as per
proceedings of the 3rd Respondent/College dated 18.02.1999. By taking a lenient
view and considering the request of the husband of the Petitioner on
humanitarian grounds, the College Committee of the 3rd Respondent passed a
resolution on 14.08.2001 to accept the application and to authorise the College
Secretary to relieve the staff member from service on voluntary retirement by
receiving 3 months salary in lieu of 3 months notice subject to the approval of
the 1st Respondent.
27.The 3rd Respondent/College sent a communication dated 11.10.2001
enclosing the resolution of the College Committee and the challan file for
payment of 3 months salary of Rs.16,470/- to the 2nd Respondent/Joint Director
of Collegiate Education, Madurai requesting him to approve the voluntary
retirement of the Petitioner’s husband so as to enable him to get personal
benefits on humanitarian grounds.
28.The Petitioner’s husband was relieved from service on voluntary
retirement on 17.08.2001 by paying his 3 months salary in lieu of 3 months
notice with the specific observation that the relieving order is subject to the
approval of the 1st Respondent/Director of Collegiate Education, Chennai. The
1st Respondent/Director of Collegiate Education through a letter dated
13.08.2002 rejected the recommendation of the 3rd Respondent/College to permit
the Petitioner’s husband to proceed on voluntary retirement on the basis that he
cannot be permitted to go on voluntary retirement retrospectively besides
observing that the institution had to impose punishment on the staff member who
failed to attend for duty duly conducting disciplinary proceedings according to
the Government order dated 08.08.2000.
29.Based on the order of the 1st Respondent/Director of Collegiate
Education, Chennai dated 13.08.2002 and as per G.O.Ms.No.1046 Personnel and
Administrative Reforms (FR III) dated 13.11.1987 and based on the Government
Letter No.8699/FR III/91-5 Personnel and Administrative Reforms dated
08.08.1991, the 3rd Respondent College Committee passed a resolution dated
27.03.2006 to dismiss the Petitioner’s husband with effect from 11.02.1995.
Giving effect to the resolution of the College Committee a proposal was sent by
the 3rd Respondent to the 2nd Respondent/Joint Director of Collegiate Education,
Madurai. The 2nd Respondent, on consideration of the earlier proceedings and on
elaborate consideration of the facts and circumstances of the case, had approved
the decision taken by the College Committee to dismiss the Petitioner’s husband
from service. Therefore, the Petitioner’s husband R.Ramaraj was removed from
service by means of an order dated 15.09.2006 passed by the Secretary of the 3rd
Respondent/College and the same was sent to the Petitioner’s husband by
registered post.
30.The Principal of the 3rd Respondent/College had not advised the
Petitioner at any point of time to file an application before the College
Authorities as regards the payment of salary and other benefits of her husband.
31.Just because the request of the Petitioner’s husband to permit him to
go on voluntary retirement by paying 3 months salary in lieu of 3 months notice
was considered on humanitarian ground and rejected the Petitioner could not
claim any relief in the Writ Petition because of the fact her husband had
admitted his guilty of unauthorised absence from duty for a long period. Hence,
the impugned order of the 3rd Respondent dated 15.09.2006 is perfectly a legal,
valid and sustainable one in law.
32.The Learned Counsel for the Petitioner cites the decision of this Court
in Angelus V. Director of Elementary Education, Chennai and others (2006) 2
M.L.J. 479 at page 480 wherein it is held as follows:
“The submission of voluntary retirement application on 26.2.1988 to the
respondents 2 and 3 is proved by production of letter as well as postal
acknowledgment. The completion of 21 years, 11 months and 23 days of pensionable
service is certi the third respondent by his proceedings dated 29.11.2001.
Those, who completed more than 2 0 years of service or attained 50 years of age
are entitled to submit application for voluntary retirement as per Rule 56(3) of
the Fundamental Rules. If no order of rejection of voluntary retirement is
passed and communicated to the person concerned, it is to be treated as deemed
acceptance as per Rule 56(3)(f) of the Fundamental Rules.
12. The direction to rejoin duty was given by the second respondent prior to the
expiry of notice period and therefore the petitioner joined during the notice
period and relieved himself from 5.6.1988, i.e, the date of expiry of notice
period. In the absence of any rejection of application for voluntary retirement,
as submitted by the petitioner, and in the absence of any resignation letter
submitted by the petitioner as contended by the second respondent, petitioner
cannot be treated as resigned from his post and if really the petitioner had
resigned as contended now in the impugned order, the third respondent ought not
to have submitted proposal for sanction of pension and gratuity as stated in the
proposal dated 29.11.2001. For calculation of the pensionary service, the period
of leave sanctioned on loss of pay alone is to be deducted. Hence, petitioner
satisfy the 20 years of service period at the time of submitting application for
voluntary retirement. Thus the petitioner is entitled to get himself relieved
from 5.6.1988 and the respondents are bound to sanction pension and other
benefits to him from 6.6.1988.
33.He also cites the order of this Court dated 30.06.2006 in W.P.No.5480
of 1998 between N.Pankajam V. State of Tamil Nadu Rep. By its Commissioner and
Secretary Department of Transport, Fort St. George, Chennai – 600 009 wherein it
paragraph 17 and 18 it is laid down as follows:
“17. Here the petitioner has established that the petitioner’s husband has not
been heard for over 7 years from 19.05.1987 and the same is not disputed and
therefore, it is to be presumed that the petitioner’s husband is dead as per
Section 108 of Indian Evidence Act.
18. In view of the said finding, the action of the second respondent in removing
the name of the petitioner’s husband from the roll of the Corporation is
illegal, since the petitioner’s husband cannot be treated as an absentee. As he
was not available, he could not report for duty. The contention of the second
respondent that the petitioner’s husband having been removed from the roll, the
petitioner is not entitled to get retirement benefits and her son cannot be
given compassionate appointment are unsustainable.”
34.He seeks in aid of the Division Bench Judgment of this Court in
P.Muthusamy V. Tamil Nadu Cements Corporation Limited, rep. By its Chairman and
Managing Director, Chennai and Another (2006) 4 M.L.J. 504 wherein it is held as
follows:
“In the absence of specific enabling provision in the TANCEM Service Rules, the
order reserving the right to continue disciplinary proceeding, after
superannuation, is illegal and without jurisdiction.”
35.The Learned Counsel for the 3rd Respondent cites the decision of
Hon’ble Supreme Court in Aligarh Muslim University and others V. Mansoor Ali
Khan (2000) 7 Supreme Court Cases 529 at page 532 & 533 it is inter alia held as
follows:
“M was put on advance notice that it would not be possible to give any further
extension i.e. Beyond one year on the ground of continuance in the job at Libya
and he was to resume duty by 18.4.1982. In fact, thereafter some special
consideration was still shown in his favour by way of granting him joining time
up to 1.7.1982. It was clearly said that otherwise he would be deemed to have
vacated the post. If he had, in spite of this warning, gone ahead by accepting a
further contact in Libya, it was his own unilateral act in the teeth of the
advance warning given. That conduct was rightly held by the Single Judge to be
sufficient to deny him relief under Article 226.
However, when rules permit and provide for an employee to go abroad
discretion must be exercised reasonably while refusing extension. In the present
case, giving of further extension only for one year out of the further period of
three years sought for is not unreasonable.
In the cases of deemed vacation of office under Rule 5(8)(i) of the 1969
Rules, there is a deeming provision of vacation of the post where the
explanation offered by the employee, consequent upon a notice, is found not
satisfactory. But in the peculiar circumstances of M’s case, he has no other
explanation – from what is revealed in his writ petition filed later – other
than his further commitment abroad for 2 more years. Hence, even if no notice
was given, the position would not have been different because that particular
explanation would not be treated as satisfactory had already been intimated to
him in advance. Therefore, the absence of a notice in M’s case must be treated
as having made no difference. The only conclusion that can be drawn is that even
if M had been given notice and he had mentioned this fact of job continuance in
Libya as a reason, that would not have made any difference and would not have
been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the
admitted or undisputed facts, only one view was possible. The case would fall
within the exception noted in S.L.Kapoor case. It has, therefore, to be held
that no prejudice was caused to M for want of notice under Rule 5(8)(i). Point 5
is decided therefore, against M.
S.L.Kapoor V. Jagmohan, (1980) 4 SCC 379 followed
Care must be taken, wherever the court is justifying a denial of natural
justice, that its decision is not described as a “preconceived view” or one in
substitution of the view of the authority who would have considered the
explanation.”
36.In W.P.No.37681 of 2006 (O.A.No.5936 of 1998) between V.Chandrasekaran
V. Director of Elementary Education, Chennai-6 and 2 others this Court on
08.10.2009 has, among other things, in paragraph 3 observed as follows:
“3. The claim of the petitioner was that he gave a notice to go on voluntary
retirement by his notice dated 23.02.1998 and three months notice which was
required under the Rules comes to an end on 25.5.1998. He sent a letter dated
25.05.1998 to the third respondent stating that since there was no rejection of
his request to go on voluntary retirement, it was deemed to have been accepted.
Therefore, he stopped attending work from 25.05.1998. It was also the case of
the petitioner that the rejection order which was challenged dated 20.05.1998
was received by him only on 02.06.1998 i.e. after the period of expiry of the
notice. 4.On notice from the Tribunal, the respondents have filed a reply
affidavit dated 05.10.2009. In the reply affidavit, it was stated that the
petitioner was suspended pursuant to the registration of a criminal case in
Crime No.2/90 by the Sub-Inspector of Police, Dharmapuri Police Station. The
said case was tried as Calendar Case 14/92 before the Judicial Magistrate No.I,
Dharmapuri. The said case ended in acquittal in favour of the petitioner by a
judgment dated 16.08.1995. Thereafter, on the representation of the petitioner,
he was restored to service on 23.02.1998. After joining duty for one day, he
gave notice to go on voluntary retirement. It was further stated that so far as
the regularisation of the period of suspension from 6.1.90 to 22.9.98 was
concerned, as it was for more than eight years, necessary orders will have to be
obtained from the Government. The petitioner was also informed by them that he
should submit necessary documents to enable them to forward the petitioner’s
request to the Government for regularising his service. The respondent denied
the statement made by the petitioner that the order was ante dated. The
petitioner was also informed that before getting relieved, prior permission
should have been obtained by the petitioner, but he never informed the
department about his leaving service nor handed over charge. The Rule requires
clearance from the Vigilance Department for going on Voluntary Retirement and
the petitioner’s service during the interregnum period of suspension was also
not regulated.
Further, in paragraph 10 and 11, it is, among other things, held
hereunder:
“10… But on the contrary in the present case, the petitioner himself had filed
the order rejecting the case of the petitioner, which was dated 20.05.1998. In
the Original application, he had stated that he had received the said order only
on 02.06.1998. Though he contended that the said order was ante dated but the
same was denied by the respondents in the reply statement.
11.The further question arises for consideration was that if the competent
authority rejects the request of the petitioner within the notice period,
whether it should be communicated before the expiry of the notice. Fundamental
Rule 56(3)(f) merely says that the appointing authority shall issue orders
before the date of expiry of notice and nowhere the Rule contemplates that the
rejection order must be communicated to the petitioner. Presumably having that
in mind, the petitioner had made a statement that the order was ante dated. When
the respondents have refused about any ante dating of the order, this Court has
no other reason to disbelieve the statement made in the reply affidavit.”
37.It is to be pointed out that the term ‘voluntary retirement’ is a
condition of service by means of a statutory provision. Ordinarily, a person
retires in the case of a voluntary retirement on completion of qualifying
service as per Rules.
38.Once a voluntary retirement has been permitted, there is no question of
withholding or recession of the same in the absence of rules to that effect. A
voluntary retirement becomes effective when it operates to terminate the
employment or the tenure of the resigner viz., from the date of actual release
by the employer and not merely the date of acceptance of the offer of
resignation.
39.This Court aptly points out the decision of Hon’ble Supreme Court in
B.J.Shelat V. State of Gujarat and others (1978) 2 SCC 202 and 203 wherein it is
held as follows:
“Rule 161 provides for the retirement of a government servant before attaining
the age of superannuation. Sub-rule (2) provides that any government servant to
whom clause (a) applies may be giving notice of not less than three months in
writing to the appointing authority, retire from service, and in any other case,
after he has attained age of 55 years: provided that it shall be open to the
appointing authority to withhold permission to retire to a government servant
who is under suspension or against whom departmental proceedings are pending or
contemplated. In the present case, no departmental proceedings were pending; but
it could be said that a proceeding was under contemplation. However, on a
reading of the Rule and the Proviso it is incumbent on the government to
communicate to the government servant its decision to withhold permission to
retire on one of the grounds specified in the Proviso. The proviso contemplates
a positive action by the appointing authority. The words “it shall be open to
the appointing authority to withhold the permission” indicate that the
appointing authority has got an option to withhold permission and that could be
exercised by communicating its intention to withhold permission to the
government servant. The question whether the communication should reach the
government servant or whether it would be sufficient if such an order is sent
out and goes out of the control of the appointing authority before the relevant
date, is not relevant in this case as admittedly the appointing authority has
not chosen to withhold permission and the order of suspension was not
communicated before the date of superannuation. The word “withhold” cannot be
read to mean that in the absence of a communication it ‘must be understood that
permission was withheld.”
Moreover, in the aforesaid decision at page 207 and 208 in paragraph 9 and
10 it is observed hereunder:
“9.Mr. Patel next referred us to the meaning of the word “withhold” in Webster’s
Third New International Dictionary which is given as “hold back” and submitted
that the permission should be deemed to have been withheld if it is not
communicated. We are not able to read the meaning of the word “withhold” as
indicating that in the absence of a communication is must be understood as the
permission having been withheld.
10.It will be useful to refer to the analogous provision in the Fundamental
Rules issued by the Government of India applicable to the Central Government
servants. Fundamental Rule 56(a) provides that except as otherwise provided in
this Rule, every Government servant shall retire from service on the afternoon
of the last day of the month in which lie attains the age of fifty-eight years.
Fundamental Rule 56 (j) is similar to Rule 161 (aa) (1) of the Bombay Civil
Services Rules conferring an absolute right on the appropriate authority to
retire a Government servant by giving not less than three months notice. Under
Fundamental Rule 56(k) the Government servant is entitled to retire from service
after he has attained the age of fifty-five years by giving notice of not less
than three months in writing to the appropriate authority on attaining the age
specified. But proviso (b) to sub-rule 56(k) states that it is open to the
appropriate authority to withhold permission to a Government servant under
suspension who seeks to retire under this clause. Thus under the fundamental
Rules issued by the Government of India also the right of the Government servant
to retire is not an absolute right but is subject to the proviso wherever the
appropriate authority may withhold permission to a Government servant under
suspension. On a consideration of Rule 161(2) (ii) and the proviso we are
satisfied that it is incumbent on the Government to communicate to the
Government servant its decision to withhold permission to retire on one of the
ground specified in the proviso.”
40.Also, this Court worth recalls the decision of Hon’ble Supreme Court in
Tek Chand V. Dile Ram Judgments Today 2001 (2) SC 114 at page 136 to 140 in
paragraph Nos.33 to 39 it is held thus:
“33.Under sub-rule (1) of the said Rule, at any time after completion of 20
years qualifying service, a Government servant could give notice of not less
than three months in writing to the appointing authority for retirement from
service. Under sub-rule (2), voluntary retirement given under sub-rule (1) shall
require acceptance by the appointing authority. In the proviso to sub-rule (2)
of Rule 48-A, it is clearly stated that in case the appointing authority does
not refuse to grant the permission for retirement before the expiry of the
period specified in the said notice, the retirement shall become effective from
the date of expiry of the said period.
34.It is clear from sub-rule (2) of the Rule that the appointing authority is
required to accept the notice of voluntary retirement given under sub-rule (1).
It is open to the appointing authority to refuse also on whatever grounds
available to it but such refusal has to be before the expiry of the period
specified in the notice. The proviso to sub-rule (2) is clear and certain in its
terms. If the appointing authority does not refuse to grant the permission for
retirement before the expiry of the period specified in the said notice, the
retirement sought for becomes effective from the date of expiry of the said
period. In this case, admittedly, the appointing authority did not refuse to
grant the permission for retirement to Nikka Ram before the expiry of the period
specified in the notice dated 5.12.1994. The learned senior counsel for the
respondent argued that the acceptance of voluntary retirement by appointing
authority in all cases is mandatory. In the absence of such express acceptance
the Government servant continues to be in service. In support of this
submission, he drew our attention to Rule 56(k) of Fundamental Rules. He also
submitted that acceptance may be on a later date, that is, even after the expiry
of the period specified in the notice and the retirement could be effective from
the date specified in the notice. Since the proviso to sub- rule (2) of Rule 48-
A is clear in itself and the said Rule 48-A is self-contained, in our opinion,
it is unnecessary to look to other provisions, more so in the light of law laid
down by this Court. An argument that acceptance can be even long after the date
of the expiry of the period specified in the notice and that the voluntary
retirement may become effective from the date specified in the notice, will lead
to anomalous situation. Take a case, if an application for voluntary retirement
is accepted few years later from the date specified in the notice and voluntary
retirement becomes operative from the date of expiry of the notice period
itself, what would be the position or status of such a Government Servant during
the period from the date of expiry of the notice period upto the date of
acceptance of the voluntary retirement by the appointing authority? One either
continues in service or does not continue in service. It cannot be both that the
voluntary retirement could be effective from the date of expiry of the period
mentioned in the notice and still a Government servant could continue in service
till the voluntary retirement is accepted. The proviso to sub-rule (2) of Rule
48-A of the Rules does not admit such situation.
35.This Court in a recent judgment in the case of State of Haryana and others
vs. S.K.Singhal [(1999) 4 SCC 293], after referring to few earlier decisions of
this Court touching the very point in controversy in para 13 of the judgment has
held thus :-
13. Thus, from the aforesaid three decisions it is clear that if the right to
voluntarily retire is conferred in absolute terms as in Dinesh Chandra Sangma
case by the relevant rules and there is no provision in the rules to withhold
permission in certain contingencies the voluntary retirement comes into effect
automatically on the expiry of the period specified in the notice. If, however,
as in B.J. Shelat case and as in Sayed Muzaffar Mir case the authority concerned
is empowered to withhold permission to retire if certain conditions exist, viz,
in case the employee is under suspension or in case a departmental enquiry is
pending or is contemplated, the mere pendency of the suspension or departmental
enquiry or its contemplation does not result in the notice for voluntary
retirement not coming into effect on the expiry of the period specified. What is
further needed is that the authority concerned must pass a positive order
withholding permission to retire and must also communicate the same to the
employee as stated in B.J. Shelat case and in Sayed Muzaffar Mir case before the
expiry of the notice period. Consequently, there is no requirement of an order
of acceptance of the notice to be communicated to the employee nor can it be
said that non-communication of acceptance should be treated as amounting to
withholding of permission.
36.In our view, this judgment fully supports the contention urged on behalf of
the appellant in this regard. In this judgment, it is observed that there are
three categories of rules relating to seeking of voluntary retirement after
notice. In first category, voluntary retirement automatically comes into force
on expiry of notice period. In second category also, retirement comes into force
unless an order is passed during notice period withholding permission to retire
and in third category voluntary retirement does not come into force unless
permission to this effect is granted by the competent authority. In such a case,
refusal of permission can be communicated even after the expiry of the notice
period. It all depends upon the relevant rules. In the case decided, the
relevant rule required acceptance of notice by appointing authority and the
proviso to the Rule further laid down that retirement shall come into force
automatically if appointing authority did not refuse permission during the
notice period. Refusal was not communicated to the respondent during the notice
period and the court held that voluntary retirement came into force on expiry of
the notice period and subsequent order conveyed to him that he could not be
deemed to have voluntary retired had no effect. The present case is almost
identical to the one decided by this Court in the aforesaid decision.
37.This Court in B.J. Shelat vs. State of Gujarat & Ors. [ (1978) 2 SCC 201 ]
while dealing with a case of voluntary retirement, referring to Bombay Civil
Service Rules, Rule 161(2)(ii) proviso and Rule 56(k) of the Fundamental Rules,
in similar situation, held that a positive action by the appointing authority
was required and it was open to the appointing authority to withhold permission
indicating the same and communicating its intention to the Government Servant
withholding permission for voluntary retirement and that no action can be taken
once the Government servant has effectively retired. Paras 9 and 10 of the said
judgment read thus :
9. Mr. Patel next referred us to the meaning of the word withhold in Websters
Third New International Dictionary which is given as hold back and submitted
that the permission should be deemed to have been withheld if it is not
communicated. We are not able to read the meaning of the word withhold as
indicating that in the absence of a communication it must be understood as the
permission having been withheld.
10. It will be useful to refer to the analogous provision in the Fundamental
Rules issued by the Government of India applicable to the Central Government
servants. Fundamental Rule 56(a) provides that except as otherwise provided in
this Rule, every Government servant shall retire from service on the afternoon
of the last day of the month in which he attains the age of fifty-eight years.
Fundamental Rule 56(j) is similar to Rule 161(aa)(1) of the Bombay Civil
Services Rules conferring an absolute right on the appropriate authority to
retire a Government servant by giving not less than three months notice. Under
Fundamental Rule 56(k) the Government servant is entitled to retire from service
after he has attained the age of fifty-five years by giving notice of not less
than three months in writing to the appropriate authority on attaining the age
specified. But proviso (b) to sub-rule 56(k) states that it is open to the
appropriate authority to withhold permission to a Government servant under
suspension who seeks to retire under this clause. Thus under the Fundamental
Rules issued by the Government of India also the right of the Government servant
to retire is not an absolute right but is subject to the proviso where under the
appropriate authority may withhold permission to a Government servant under
suspension. On a consideration of Rule 161(2)(ii) and the proviso, we are
satisfied that it is incumbent on the Government to communicate to the
Government Servant its decision to withhold permission to retire on one of the
grounds specified in the proviso.
In this decision effect of Rule 56(k) of Fundamental Rules is also considered
which answers the argument of the learned counsel for the respondent on this
aspect. It may also be noticed that under Rule 48-A in Government of Indias
decision giving instructions to regulate voluntary retirement it is stated, Even
where the notice of voluntary retirement given by a Government servant requires
acceptance by the appointing authority, the Government servant giving notice may
presume acceptance and the retirement shall be effective in terms of the notice
unless the competent authority issues an order to the contrary before the expiry
of the period of notice.
38.If we accept the argument of the learned senior counsel for the respondent,
even if the refusal of voluntary retirement is not communicated within the
period specified in notice, the voluntary retirement cannot be effective unless
it is accepted by the appointing authority, no meaning and effect can be given
to the proviso to sub-rule (2) to Rule 48-A. It is cardinal rule of construction
that no word or provision should be considered redundant or superfluous in
interpreting the provisions of a statute or a rule.
39.The High Court looking to the letters dated 29.12.1994, 18.12.1996, 2.4.1998,
26.3.1998 and 7.8.1998 came to the conclusion that Nikka Ram was in Government
service on the date of filing nomination paper. The High Court also observed
that there was glaring omission on the part of the appellant in not
controverting the pleadings and evidence of the respondent with regard to Nikka
Ram being in Government service at the relevant time and also relied on the oral
evidence in this regard to say that Nikka Ram was holding office of profit by
being in Government service on the date of filing nomination paper and as such
his nomination paper was wrongly accepted. It is not disputed, as already stated
above, that no communication was given to Nikka Ram before the expiry of the
period specified in the notice of voluntary retirement. Nikka Ram was not
examined. Exbt. PW3/2, letter dated 26.3.1998, Exbt. PW3/3, letter dated
2.4.1998 and Exbt. PW3/3 letter dated 7.8.1998 were of dates subsequent to the
date of filing of nomination paper and even declaration of the result of the
election on 2.3.1998. On the basis of the material available on record on the
date of scrutiny of nomination paper, there was nothing to show that Nikka Ram
continued in Government service in view of the admitted position that he had
submitted application for voluntary retirement by giving notice on 5.12.1994 and
no refusal was communicated to him, refusing acceptance of voluntary retirement
before 28.2.1995. By virtue of Rule 48-A, as discussed above, the voluntary
retirement of Nikka Ram came into force and became effective from 28.2.1995.
Neither Nikka Ram nor Government of Himachal Pradesh are parties to this appeal
before us. In this appeal we do not wish to deal with the status of Nikka Ram in
relation to Government service or the respective rights and contentions, if any,
of Nikka Ram and State Government in regard to his service and the consequences
that may follow. For the purpose of this appeal it is enough to say that on the
date of filing and scrutiny of nomination paper of Nikka Ram, he should be
deemed to have been voluntarily retired by operation of proviso to sub-rule (2)
of Rule 48-A.”
41.Apart from the above decisions, it is useful for this Court to cite the
following decisions:
(a)In Pudubidri Damodar Shenoy V. Indian Airlines Limited and another
Judgments Today 2009 (12) SC 108 at page 109 and 110 it is held as follows:
“Regulation 12 of the Service Regulations, inter alia, enables an employee to
seek voluntary retirement on attaining the age of 55 years or on completion of
20 years of continuous service by giving three months notice. An employee who
has attained the age of 55 years and has applied for voluntary retirement under
Regulation 12, his voluntary retirement is automatic on expiry of notice period
i.e. three months. Is it equally applicable to an employee who has not attained
the age of 55 years but completed 20 years of continuous service and applied for
voluntary retirement. In our judgment, it is not so because for a category
covered by clause (b), namely, an employee having completed 20 years of
continuous service who has given three months notice for voluntary retirement
from the service, a proviso appended thereto provides that voluntary retirement
under clause (b) shall be subject to approval of the competent authority.
The use of the word `shall’ in the proviso, prima facie leads to an inference
that provision is imperative. There is nothing in the context to suggest that it
is merely directory. It is followed by the words, `subject to approval’. The
effect of the use of words `subject to’ is to introduce a condition. The
expression, “shall be subject to approval” is indicative of its intendment that
the voluntary retirement applied by the employees covered by clause (b) is
effective only upon approval by the competent authority.
The appellant issued a notice of voluntary retirement under Regulation 12 (b) on
September 30, 2005. The notice period was to expire on December 31, 2005. It is
an admitted position that the competent authority neither gave approval nor
indicated disapproval to the appellant within the notice period of three months.
The employee never treated that there has been cessation of employment on expiry
of three months notice period inasmuch as he continued to attend his duties
after December 31, 2005 until June 30, 2006. It is only by his letter dated June
8, 2006 that the appellant requested the respondent to relieve him in terms of
his notice dated September 30, 2005 by June 30, 2006 and he stopped attending
work from July 1, 2006. The letter dated June 8, 2006 does not make any material
difference as the fact of the matter is that after expiry of notice period, the
appellant continued to attend his duties for many months thereafter. By the
letter dated September 15, 2006 the respondent communicated to the appellant
that his application for voluntary retirement under Service Regulation 12(b) has
not been acceded to by the competent authority. Since the notice for voluntary
retirement by an employee who has not attained 55 years but has completed 20
years of continuous service, under proviso appended to Regulation 12(b), is
subject to approval by the competent authority and that approval was not
granted, the voluntary retirement of the respondent never came into effect.”
(b)In Union of India and others V. Sayed Muzaffar Mir AIR 1995 Supreme
Court 176 at page 177 in paragraph 4 and 5, the Hon’ble Supreme Court has
observed and held hereunder:
“4.There are two answers to this submission. The first is that both the
provisions relied upon by the learned counsel would require, according to us,
passing of appropriate order, when the government servant is under suspension
(as was the respondent), either of withholding permission to retire or retaining
of the incumbent in service. It is an admitted fact that no such order had been
passed in the present case. So, despite the right given to the
appropriate/competent authority in this regard, the same is of no avail in the
present case as the right had not come to be exercised. We do not know the
reason(s) thereof. May be, for some reason the authority concerned thought that
it would be better to see off the respondent by allowing him to retire.
5.The second aspect of the matter is that it has been held by a three-Judge
Bench of this Court in Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC
441: (AIR 1978 SC 17), which has dealt with a pari materia provision finding
place in Rule 56(c) of the Fundamental Rules, that where the government servant
seeks premature retirement the same does not require any acceptance and comes
into effect on the completion of the notice period. This decision was followed
by another three Judge Bench in B.J. Shelat v. State of Gujarat, (1978) 2 SCC
202: (AIR 1978 SC 1109).”
(c)In K.L.E. Society V. Dr.R.R. Patil and Another (2002) 5 SCC 278 at
special page 283 to 285 in paragraph 16 to 18 and in para 20 and 21, the Hon’ble
Supreme Court has observed hereunder:
“16.When the respondent No.1 submitted the second notice on 5.7.1995 no
reference was made to the earlier notice dated 2.12.1994. Besides there could
not have been two applications for voluntary retirement. By accepting the second
application on 5.7.95 the first application must in any event be treated as
having been superseded. The respondent No. 1’s letter dated 5.7.1995 was in fact
a fresh application for voluntary retirement. Here too the respondent No. 1 did
not specify the intended date of retirement. He only requested that he may be
permitted to take retirement ‘at the earliest’. The non specification of a date
coupled with the fact that no request was made for curtailment of the notice
period, meant that the date of his voluntary retirement could only be on or
after 5.10.95. During this period, the respondent No. 1 sent the letter dated
19.7.95 requesting that the notice of voluntary retirement dated 5.7.95 be kept
in abeyance. This was not a letter for withdrawing the notice. It was a request
that the notice may be kept in abeyance in the sense not considered immediately
thus postponing the intended date of retirement. Assuming that the letter dated
19.7.95 was a notice of withdrawal and that the appellant was right in
discarding it, nevertheless the appellant was bound to allow the notice period
of three months calculated from 5.7.95 to expire before issuing an order
accepting the notice. Admittedly the appellant did not do that. They issued the
impugned order within 15 days.
17.The appellant purported to treat the notice dated 5.7.95 as a continuation of
the first notice dated 2.12.94 for the purpose of calculating the notice period.
They could not have done that for the reasons stated earlier. The appellant not
having waited for three months from 5.7.95, the order accepting the respondent
No. 1’s request for voluntary retirement was premature and amounted to
unilateral curtailment of the notice period by the appellant contrary to the
Scheme and more particularly Rule 50 (5) (c) thereof. The impugned order cannot
but be held to be bad.
18.There is a further reason for setting aside the impugned order. Under Rule 50
(5), as far as the respondent No. 1 was concerned, the appointing authority was
the appellant and the approving authority was the State Government. The order of
acceptance could have been issued by the appellant on 20.7.95 only after
obtaining the “specific prior approval” of the State Government under clause (m)
and after verification of the respondent No. 1’s eligibility in consultation
with the Accountant General under clause (m). Neither of these pre- conditions
had been fulfilled. The purported approval of the State Government was much
after the impugned order of acceptance was passed. The verification with the
Accountant General has not been done at all.
20.Ordinarily, having reached this conclusion, we would have merely dismissed
the appeal, but having regard to the submissions made by counsel on either
sides, we feel that it would be more appropriate to mould the relief granted by
the High Court to the respondent. The respondent himself had decided to retire
for compelling personal reasons. In fact, he had been on long leave prior to the
second notice asking for permission to voluntarily retire. He had agreed to
continue for the time being at the instance of others in the interest of the
institution. The appellant has in the meantime replaced the respondent with
another Principal who has been serving for the last 7 years apparently to the
satisfaction of the appellant and without any complaint. It is also not the
respondent’s case that the present incumbent is incompetent or has not
discharged his duties during this period with dedication and commitment. On the
other hand the replacement of the present incumbent by the respondent may, given
the history of this litigation, create an atmosphere of discord and
confrontation, which would not benefit the institution at all. It would, in the
circumstances, be in the interest of all the protagonists to allow the present
incumbent to continue while compensating the respondent for the incorrect action
taken by the appellant against him.
21.We accordingly dismiss the appeal with the direction that the respondent will
not be reinstated in service but be treated to have retired from service as
indicated in the order impugned before the Tribunal and the appellant shall pay
to the respondent a sum equivalent to three years’ salary as last drawn by the
respondent as Principal of the College by way of compensation. Such payment
shall be made within eight weeks from today. The appellant will also pay the
respondent the costs of this appeal assessed at Rs.5,000/- ( Rs. Five thousand
only).”
(d) In Bank of India V. O.P.Swarankar AIR 2003 Supreme Court 858 at page
859 & 860, the Hon’ble Supreme Court has observed and held as follows:
“The employees opting for Voluntary Retirement could withdraw their offer before
it was accepted by the Bank despite the contractual bar to withdrawal contained
in the Scheme.
A proposal is made when one person signifies to another his willingness to
do or abstain from doing anything with a view to obtaining the assent of the
other to such act or abstinence (S.2(a)). Herein the Banks by reason of the
Scheme or otherwise have not expressed their willingness to do or abstain from
doing anything with a view to obtaining assent of the employees to such act. Not
only the power of the Bank to accept or reject such application is absolutely
discretionary, it, could also amend or rescind the Scheme. The Scheme,
therefore, cannot be said to be an offer which, on the acceptance by the
employee, would fructify in a concluded contract. The Scheme having regard to
its provisions merely constitute an invitation to treat and not an offer. The
proposal of the employee when accepted by the Bank would constitute a promise
within the meaning of S.2(b) of the ACt. Only then the promise becomes an
enforceable contract. In the instant case, the Banks when floating the Scheme
did not signify that on the employees assenting thereto a concluded contract
would come inot being in terms whereof they would be permitted to retire
voluntarily and get the benefits thereunder. Furthermore, in terms of the said
Scheme no consideration passed so as to constitute an agreement. Once it is
found that by giving their option under the Scheme, the employees did not derive
an enforceable right, the same in absence of any consideration would be void in
terms of S.2(g) of the Contract Act as opposed to S.2(h) of the Contract Act as
opposed to S.2(h) thereof. Furthermore, even by opting for the Scheme as floated
by the Banks, no consideration is passed far less amounting to reciprocal
promise. In the instant case, there was even no reasonable certainty that the
Scheme would be acted upon. Furthermore terms and conditions thereof could be
amended and even the Scheme itself could be rescinded. The Voluntary Retirement
Scheme was, therefore, not a proposal or an offer but merely an invitation to
treat and the applications filed by the employees constituted ‘offer.’
Once the application filed by the employees is held to be an ‘offer’; S.5
in absence of any other independent binding contract or statute or statutory
rules to the contrary would come into play and the offer made by employees could
be revoked any time before it was accepted.”
(e) In Union of India and another V. Wing Commander T.Parthasarathy (2001)
1 Supreme Court Cases 158 and 159, the Hon’ble Supreme Court has laid down as
follows:
“A request for premature retirement which required the acceptance of the
competent or appropriate authority will not be complete till accepted by such
competent authority and the request could definitely be withdrawn before it
became so complete. It is all the more so in a case where the request for
premature retirement was made to take effect from a future date as in this
case.”
(f)In P.Lal V. Union of India and others (2003) 3 Supreme Court Cases 393
at page 395 & 396, the Hon’ble Supreme Court has inter alia observed as follows:
“An employee can withdraw his application for voluntary retirement before the
effective date. The effective date would necessarily be the date on which the
retirement takes effect. The request, which Respondent No. 3 had made by his
letter dated 5th May, 1993, was to be allowed to retire voluntarily with
immediate effect. He had also deposited Rs. 30,870/- in lieu of three months’
notice. Thus so far as Respondent No. 3 was concerned the effective date was 5th
May, 1993. Of course Rule 16(2A) of the All India Services (Death-cum-
Retirement) Rules, 1958 provides that a notice of retirement had to be accepted
by the Government of India. In this case, the Government of India accepted the
request on 2nd March, 1995 and permitted Respondent No. 3 to retire with effect
from May 1993. The moment Government of India accepted the notice the retirement
became effective. The relationship of master and servant came to an end. We are
unable to accept the submission that the relationship of master and servant did
not terminate till the acceptance was communicated to Respondent No. 3. It must
be remembered that Rules 16(2) and 16(2A) enable a member to retire from service
on giving the required notice. Once such a notice is given it merely has to be
accepted by the Government of India. The moment it is accepted the retirement
would become effective. If any other view is taken it would lead to absurd
results. Such a view would mean that even though a member had given a notice for
voluntary retirement stopped attending office and/or gone away abroad and/or
taken up some other employment after a number of years of absence the member
could claim to come back into service because the Government, for some
unforeseen reasons, had not communicated its acceptance. Taken to its absurd
length such a member could after superannuation claim that, as the services were
not terminated, he was entitled to pension and gratuity on the basis that he had
continued in service. The requirement of communication of acceptance would only
arise in cases where, even after giving of a notice of voluntary retirement the
member continues to work/perform his duties. In such cases the member would need
to know from what date he can stop attending office. In cases where the member
has by his own conduct abandoned service the severance of the relationship of
master and servant takes place immediately on acceptance of notice. We are
unable to accept the submission that the severance of relationship of master and
servant cannot take effect until there is an Order by the President of India and
the same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set
out hereinabove. All that it requires is acceptance by the Government of India
and not by the President of India. Admittedly the request for voluntary
retirement has been accepted by the Government of India on 2nd March, 1995. No
provision or rule could be shown which requires such acceptance to be gazetted.
On the contrary, as has been set out hereinabove, in its affidavit before the
Punjab & Haryana High Court, the Government of Punjab had categorically stated
that there was no provision for gazetting such an order.”
(g)In State of Haryana and others V. S.K.Singhal (1999) 4 Supreme Court
Cases 293 at page 294 & 295, it is observed and laid down as follows:
“Voluntary retirement in the present case was governed by Rule 5.23(B) of the
Punjab Civil Services Rules, Vol. II Clause (2) of this rule provided that “The
notice of voluntary retirement … shall require aceptance by the appointing
authority subject to Rule 2.2 of the Punjab CSR Vol.II.” Proviso to Rule 5.32
(B)(2) further laid down that “where the appointing authority does not refuse to
grant the permission for retirement before the expiry of the (notice) period
…, the retirement shall become effective from the date of expiry of the said
period”. Rule 2.2 of the Civil Services Regulations, Vol. II [referred to in
Rule 5.32(B)(2) provided that future good conduct was an implied condition for
grant of pension.
Held:
Rules applicable in various government departments provide for voluntary
retirement by giving notice (say for three months). Some rules are couched in
language which results in automatic retirement on expiry of period specified in
employee’s notice whereas in some rules, the language makes it clear that even
on expiry of the period specified in notice, till such acceptance is
communicated; refusal of permission can also be communicated after notice period
and the employee continues to be in service. Cases like Dinesh Chandra Sangma,
B.J. Shelat and Sayed Mazaffar Mr, belong to former category where it is held
that upon expiry of notice period, voluntary takes effect automatically as no
order of refusal is passed within the notice period. On the other hand, Suman
Behari Sharma case, belongs to second category.
Dinesh Chandra Sangma V. State of Assam, (1977) 4 SCC 441: 1978 SCC (L& S) 7;
B.J. Shelat V. State of Gujarat, (1978) 2 SCC 202: 1978 SCC (L&S) 208; Union of
India V. Sayed Muzaffar Mir, 1995 Supp (1) SCC 76: 1995 SCC (L&S) 256;
H.P.Horticultural Produce Marketing & Processing Corporation Limited V. Suman
Behari Sharma (1996) 4 SCC 584 : 1996 SCC (L& S) 1056, considered,
It is clear form Dinesh Chandra Sangma, B.J. Shelat and Sayed Muzaffar Mir
cases that if the right to voluntarily retirement is conferred in absolute terms
as in Dinesh Chandra Sangma’s case by the relevant rules and there is no
provision in Rules to withhold permission in certain contingencies the voluntary
retirement comes into effect suthomatically on the expiry of the period
specified in the notice. If, however, as in B.J.Shelat’s case and as in Sayed
Muzaffar Mir’s case, the concerned authority is empowered to withhold permission
to retire if certain conditions exist, viz. in case the employee is under
suspension or in case a departmental inquiry is pending or is contemplated, the
mere pendency of the suspension or departmental inquiry or its contemplation
does not result in the notice of voluntary retirement not coming into effect on
expiry of the period specified. What is further needed is that the concerned
authority must pass a positive order withholding permission to retire and must
also communicate the same to the employee as stated in B.J.Shelat’s case and in
Sayed Muzaffar Mir’s case before the expiry of the notice period. Consequently,
there is no requirement of an order of acceptance of the notice to be
communicated to the employee nor can it be said that non-communication of
acceptance should be treated as amounting to withholding of permission.
Further, in paragraph 18 it is observed and held as follows:
“Rule 5.32(B)(1),in the present case, contemplates a ‘notice to retire’ and not
a request seeding permission to retire. The further “request” contemplated by
the sub-section is only for seeding exemption from the 3 months period. The
proviso to sub-clause (2) makes a positive provision that “where the appointing
authority does not refuse to grant the permission for retirement before the
expiry of the period specified in sub-rule (1), the retirement shall become
effective from the date of expiry of the period specified in sub-rule (1), the
retirement shall become effective from the date of expiry of the said period.
The case before us stands on a stronger footing than Dinesh Chandra Sangma’s
case so far as the employee is concerned. As already stated Rule 2.2 of Punjab
Civil Service Rules Vol.II only deals with a situation of withholding or
withdrawing pension to a person who has already retired.”
(h)In H.P.M.C. V. Shri Suman Behari Sharma AIR 1996 Supreme Court 4353,
the Hon’ble Supreme Court has held as follows:
“The Bye-law 3.8 of H.P. Horticultural Produce Marketing and processing
Corporation Ltd Employees Service Bye-laws inter alia provides for voluntary
retirement from service of corporation on completion of 25 years service or on
attaining the age of 50 years whichever is earlier. The employee, however, has a
right to make a request in that behalf and his request would become effective
only if he is ‘permitted’ to retire. The words “may be .. permitted at his
request” clearly indicate that the said clause does not confer on the employee a
right to retire on completion of either 25 years service or on attaining the age
of 50 years. It confers on the employee a right to make a request to permit him
to retire. Obviously, if request is not accepted and permission is not granted
the employee will not be able to retire as desired by him. The words “seek
retirement” in para 5 thereof indicate that the right which is conferred by it
is not the right to retire but a right to ask for retirement. The word “seek”
implies a request by the employee and corresponding acceptance or permission by
corporation. Therefore, there cannot be automatic retirement or snapping of
service relationship on expiry of three months period.”
(i)In Sarat Kumar Mohanty V. State of Orrisa and others (Full Bench)
(Orissa High Court) 1995 (1) Service Law Reporter 314 at page 318 & 319 in
paragraph 12 to 14 it is held thus:
“12.The legal submission advanced by Shri Das has merit in it because if a
disciplinary proceeding against a judicial officer be pending, which can be
drawn only by the High Court, the question whether the offer of voluntary
retirement should be withheld or not,has to be decided in consultation with,or
on recommendation of, the High Court for the simple reason that whether such an
officer should continue in service and remain under the control of the High
Court, which control would be lost on voluntary retirement, has to be basically
decided by the High Court. Now, if in such a case, recommendation of the High
Court is necessary, which as stated by the Constitution Bench in paragraph 40 of
Dikshitulu, though “advisory”, in substance and effect, is well high
peremptory,” the same result has to be in so far as withdrawal or rescission of
voluntary retirement is concerned, in view of what has been stated in Section 21
of the General Clauses Act, according to which, for rescinding a notification,
the same procedure must be followed which was done while issuing the
notification inasmuch as this section requires that such a power must be
exercised “in like manner and subject to the like sanction and conditions, if
any,”, which were existing when the notification was issued.
13.In this connection a submission has, however, been made by the learned
Government Advocate that rescission of such an order cannot be demanded as a
matter of right. We find force in this submission as it was stated by the apex
Court in paragraph 7 of Jai Ram V.Union of India, AIR 1954 SC 584, as below:
“……… It may be conceded that it is open to a servant, who had
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, so
long as he continues in service and not after it has terminated.”
To the same effect is the observation in paragraph 5 of Raj Kumar V. Union
of India, AIR 1969 SC 180 : [1968 SLR 730 (SC)]:
“… Termination of employment by order passed by the Government does not become
effective until the order is intimated to the employee. But 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.”
We may finally refer to the well-known case of Union of India V. Gopal
Chandra Misra (Commonly known as Satish Chandra’s case), AIR 1978 SC 694 : [1974
(1) SLR 521 (SC)], in which Sarkaria, J., speaking for the majority, made the
following observation in paragraph 51 of the judgment :-
“…. It will bear repetition 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. This general rule is equally appli- cable to Government servants and
constitutional functionaries. In the case of a Government servant/or functionary
who cannot,-under the conditions of his service/or office, by his own unilateral
act of tendering resignation, give up his service/or office, normally, the
tender of resignation becomes effective and his service/or office-tenure
terminated, when it is accepted by the competent authority. In the case of a
Judge of a High Court, who is a constitutional functionary and under Proviso (a)
to Article 217(1) has a unilateral right, or privilege to resign his office, his
resignation becomes effective and tenure terminated on the date from which he,
of his own volition, chooses to quit office……”
14.The above would show that a person like the one at hand had not been
conferred with a right to ask for rescission or withdrawl of his order of
voluntary retirement, as there is no law or rule permitting it.”
(j)In S.Jagadeesan V. Ayya Nadar Janaki Ammal College and another AIR 1984
Supreme Court 1512, the Hon’ble Supreme Court in paragraph 3 has held as
follows:
“Without entering into the controversy as to the meaning to be given to the
words “otherwise terminated” in sub-section (1) of Section 19 of the Tamil Nadu
Private Colleges (Regulation) Act, 1976, we set aside the judgment of the High
Court and dismiss the writ petition filed by respondent No.1 with a direction
that respondent No.1 may prefer an appeal to the prescribed authority under
Section 37 of the Act. if so advised. If such an appeal is preferred within 30
days of the passing of this order, the prescribed authority shall entertain and
decide the appeal on merits, without any objection as to limitation.”
(k)In Ayya Nadar Janaki Ammal College represented by its Secretary,
Sivakasi V. Pandian and others 1996-II-MLJ-345, it is held as follows:
“Sec. 19 of the Act applies to all teachers and other persons employed in any
private college. They may be permanent teachers or permanent employees or
probationary teachers or employees . Sec. 19 prohibits that no such teachers or
employees shall be dismissed removed or reduced in rank or their services shall
otherwise be terminated except without the prior approval of the competent
authority. On a perusal of Sec. 19 it is clear that except without the prior
approval of the competent authority, there shall not be any removal, dismissal,
or reduction in rank of any teachers or other persons employed in a private
college or termination of their appointment. In other words, the prior approval
of the competent authority is a sine qua non for the orders contemplated under
Sec. 19 of the Act to take legal effect.”
42.It is relevant for this Court to make a significant mention that the
Government of Tamil Nadu in G.O.Ms.No.43, Finance (Pension) Department, dated
22.01.1991 has stated as follows:
“In partial modification of the orders issued in the Government order and
Government letter first and second read above, the Government direct that –
i]Death-cum-Retirement Gratuity and family pension may be granted to the
family of missing employee after two years instead of one year.
ii]Family security Fund / Group Insurance scheme amount shall be withheld
till the disappearance of the employee is definitely established in terms of the
Indian Evidence Act etc.”
43.In the copy of the Government Letter No.114392/Pension/87-1 dated
04.04.1988, from Joint Secretary to Government, Finance [Pension] Department,
Fort St. George, Madras-9 the points are clarified as hereunder:
Sl.No. Points raised Clarifications issued
1. Whether the Counter signature of the It is enough if the police
Police report of the Superintendent of report given by the
Police/Commissioner of Police or a Station Officer in charge is
report from the Superintendent of accepted.
police/Commissioner of Police is to be
insisted.
2. Whether legal heirship certificate is Legal heirship Certificate
to be insisted is necessary
3. The format in which Indemnity bond Necessary indemnity bond
is to be given by the nominee / as prescribed in Form 25
dependents of the employees of Tamil Nadu Pension
Rules 1978 with suitable
modifications wherever
necessary may be
adopted.
44.In G.O.Ms.No.690, Finance [Pension] Department dated 24.10.1981 of the
Government of Tamil Nadu in paragraph 3 has observed hereunder:
“3.After careful examination of the various clarifications sought for in this
regard, and as the very object of the Family Benefit Fund Scheme the Revised
Group Insurance Scheme is to help the bereaved family members of the deceased
employee who were dependent on the deceased for support, it has been decided
that the rules relating to the making of nomination for the lumpsum grant may be
modified making of more clear and specific. In partial modification of the
orders issued in G.O. cited and the instructions issued in the Memorandum second
cited, the Government pass the following further orders:-
(i)The nomination shall be made strictly in the order of members indicated
in para 1 above;
(ii)Major sons [who were not dependent on the deceased for support]; Major
brothers; Married daughters/sisters and other relative will not be eligible for
the lumpsum grant under the scheme;
(iii)Employees who have no family shall be exempted from joining the
Family Benefit Fund/Group Insurance Scheme as is allowed in the case of
Fathers/Nuns in the Educational Institutions;
(iv)If none of the nominee/persons indicated in para1 above are alive,
then the lumpsum grant under the scheme shall lapse to the Government
/Organizations; and
(v)n case of no nomination, the lumpsum grant shall be paid to the
eligible members in equal shares.
and further directed all employees governed by the scheme may be permitted to
file a nomination afresh, within 3 months from the date of this order.”
45.The Government of Tamil Nadu in G.O.Ms.No.478, Finance [Pension]
Department, dated 04.06.1987, has, inter alia, issued directions and orders as
specified hereunder:
“3.Government have carefully examined the decision of the Government of
India and have decided to extend similar benefits to the Tamil Nadu Government
Servants including the staff of local bodies and aided educational institutions.
They accordingly direct that
(i)When an employee disappears leaving his family, the family can be paid
in the first instance the amount of salary due; leave encashment due and the
amount of General Provident Fund, having regard to the nomination made by the
employee;
(ii)After the elapse of a pension of one year, other benefits both Death-
cum-Retirement Gratuity/Family Pension may also be granted to the family.
4.The above benefits may be sanctioned by the administrative department of
Secretariat after observing the following formalities:-
i)The family must lodge a report with the concerned police station and
obtain a report that the employee has not been traced after all efforts had been
made by the Police.
ii)An Indemnity Bond should be taken from the nominee/dependent of the
employees that all payments will be adjusted against the payments due to the
employee in case he appears on the scene and makes any claim.
5.The Government also direct that in case the disbursement of Death-cum-
Retirement Gratuity is not effect within 3 months from the date of application
the interest shall be paid at the rates applicable and responsibility for the
delay fixed.
6.The orders shall take effect from the date of this order. However, all
the pending cases can be settled with reference to the above orders.
7.The orders will also apply to the staff of local bodies and aided
teaching institutions.”
46.The Letter of the Government of Tamil Nadu Finance (Pension) Department
No.66491/Pension/94-7, dated 27.03.1996 has issued the amendment to
G.O.Ms.No.806 Finance [Pension] dated 21.09.1993, as regards the filing of
nomination relating to Tamil Nadu Government Servants Family Security Fund/Group
Insurance Scheme.
47.Pertinently, this Court refers to G.O.Ms.No.540 of Government of Tamil
Nadu, Finance [Pension] Department, dated 05.07.1995 which refers to
introduction of new Rule 49-A (after rule 49) of Tamil Nadu Pension Rules, 1978,
which enjoins as follows:
“49-A. Benefits to the family of a disappearing Government Servant:-
When a Government servant disappears leaving his family, the family of
such Government servant shall be entitled immediately for the payment of dues of
salary, leave encashment, General Provident Fund and Special Family pension-cum-
Gratuity and after lapse of a period of one year of such disappearance for the
payment of dues of Death-cum-retirement Gratuity and Family Pension in
accordance with the nomination made by such Government servant, subject to the
following conditions, namely –
(i)a complaint must have been lodged with the Police Station concerned and
a report obtained that the Government servant has not been traced despite all
efforts made by the police; and
(ii)An Indemnity Bond must have been executed by the nominee or dependents
of such Government servant to the effect that all payments shall be adjusted
against the payment due to the such Government servant in case he appears later
and makes any claim.”
48.Besides the above, this Court aptly points out the Letter No.21396-
A/Pension/91-2 of Government of Tamil Nadu, Finance [Pension] Department, dated
09.04.1991 on the subject of grant of family pension and gratuity to the
families, etc. of employees/ pensioners of Government, aided Educational
Institutions and local bodies who disappear suddenly and whose whereabouts are
not known, in and by which further instructions regarding the formalities to be
observed, regulation of payment of family pension, gratuity etc. have been
issued and the same runs as follows:
“(ii)The benefits to be sanctioned to the family of the missing employee
will be based on and regulated by the emoluments drawn by him/her and the
rules/orders applicable to him/her as on the last date he/she was on duty
including authorised periods of leave. Family pension at normal/enhanced rates
as may be applicable to the individual cases, will be payable to the families of
missing employees. Family pension where sanctioned at Pre.1-6-88 rates to be
revised and consolidated with effect from 1.6.88 in terms of G.O.Ms.No.810,
Finance [PC] dated 09.08.1999 as amended from time to time.
(iii)In the case of missing pensioners, the family pension at the rates
indicated in the Pension Pay Order will be payable and may be authorised by the
Head of the office concerned. Where the Pension Pay order does not contain this
information, the Head of Office will take necessary action to sanction the
family pension as due, as provided in para 1[i] and [ii] above.
(iv)Death gratuity will also be payable to the families, but not exceeding
the amount which would have been payable as Retirement gratuity if the person
had retired. The difference between the retirement Gratuity and death gratuity
shall be subsequently payable after the death is conclusively established or on
the expiry of seven years period from the date of missing.
(v)The indemnity bond to be obtained for this purpose from the family
members, etc. will be in the formats enclosed with this letter. Separate
formats for use in the case of missing employees and missing pensioners have
been prescribed.”
49.In letter No.75868/Pension/87-1 dated 21.07.1987, the Government of
Tamil Nadu, Finance [Pension] Department, Fort St. George, Madras-9 have issued
the following amendment ‘For the word ‘Pension’ occurring in para 3[ii] of
G.O.Ms.No.478, Finance [Pension] dated 04.06.1987 read as ‘period’.
50.Be that as it may, Section 107 of the Indian Evidence Act, 1872 speaks
of ‘burden of proving the death of a person known to have been alive within 30
years.’ A human life shown to be in existence, at a certain point of time which
as per Section 107 of the Indian Evidence Act should to be a point within 30
years calculated backwards from the date when the question arises, is presumed
to continue to be living. However, 107 of the Act is subject to a provision of
Section 108. In fact, Section 107 of the Indian Evidence Act as the effect of
shifting the burden of establishing that the individual is dead on him who
affirms the fact. However, Section 108 as the effect of shifting the burden of
proof back on the one who asserts the fact of that person being alive. Section
108 presumption is a limited one restricted to presume the factum of death of an
individual whose life or death is in issue.
51.The presumption under Section 108 of the Indian Evidence Act relates
to the factum of death at the time when the question is raised and not at any
particular antecedent time. There is no presumption in law as regards the cause
and circumstance of the death as per decision Gnanamuth V. Anthoni AIR 1960
Madras 430. As per Section 108, the presumption of death can be made only if it
is established at the time when the presumption is sought to be raised that the
individual concerned was not heard of for 7 years by those who would naturally
have heard of him, if he had been alive, as per decision Ram Rati Kauer V.
Dwarka Prasad AIR 1967 SC at page 1134. Indeed, the presumption of civil death
of a fictional one as per Section 108 of the Indian Evidence Act tantamounts to
physical death in law for enabling the widow a right to file a suit as per
decision AIR 1967 Orissa at page 70.
52.As far as the present case is concerned, the Petitioner’s husband
R.Ramaraj on 17.08.2001 was relieved from service on Voluntary Retirement by the
3rd Respondent/College by paying his 3 months salary in lieu of 3 months notice
of course with a specific observation that the relieving order is subject to the
approval of 1st Respondent/Director of Collegiate Education. The Petitioner’s
husband’s three months salary of Rs.16,470/- challan file was sent by the 3rd
Respondent/College on 11.01.2001 requesting the 2nd Respondent to approving the
voluntary retirement of Petitioner’s husband. The 2nd Respondent had rejected
the 3rd Respondent’s action in accepting 3 months notice salary as per
Rc.No.7413/D2/98 dated 12.12.2001 mentioning the clarification issued by the 1st
Respondent.
52.It is to be pointed out that when the Petitioner’s husband had put in
already 25 years of completed service and moreover, when the 3rd
Respondent/College Committee on humanitarian grounds on 14.08.2001 had accepted
the 3 months salary of Petitioner’s husband in lieu of 3 months notice for
voluntary retirement and also when the Petitioner’s husband was relieved on
11.02.1995 by the 3rd Respondent, this Court is of the considered view that it
is not open to the 3rd Respondent/College at a later point of time that too
based on the letter of the 1st Respondent dated 13.08.2002 rejecting the
recommendation of the college to permit the Petitioner’s husband to go on
voluntary retirement retrospectively without taking necessary action against him
as per G.O.Ms.153, P & AR (FR III) dated 08.08.2000 to take action by means of
resolution of the College Committee dated 27.03.2006 to dismiss the Petitioner’s
husband with effect from 11.02.1995.
54.As a matter of fact, the 3rd Respondent/College ought to have first
taken action against the Petitioner’s husband for his unauthorised absence for
the period from 21.1.95 as per G.O.Ms.No.153, P & AR (FR III) dated 08.08.2000,
well before permitting him to retire voluntarily on humanitarian grounds. But in
the instant case on hand, the 3rd Respondent/College had not resorted to such a
course of action. In law, the option is given to an employee to go for voluntary
retirement. The 3rd Respondent/College through its College Committee by means of
resolution on 14.08.2001 has accepted the request of Petitioner’s husband to go
on VRS and further has authorised the College Secretary to relieve her husband
from service on voluntary retirement by receiving 3 months salary in lieu of 3
months notice on 10.02.1995. Indeed, when the Petitioner’s husband’s voluntary
retirement was accepted by the 3rd Respondent/College/Employer, then, it is not
open to the 1st Respondent or the 2nd Respondent, as the case may be, to
withhold or recession of the voluntary retirement of the Petitioner’s husband by
placing reliance on the tenure of G.O.Ms.No.153, P & AR (FR III) dated
08.08.2000.
55.When the voluntary retirement of the Petitioner’s husband was accepted
by the 3rd Respondent/College by means of the College resolution dated
14.08.2001 no useful purpose would be served in directing the 3rd Respondent to
take disciplinary action as per G.O.Ms.No.153 P & AR (FR III) dated 08.08.2000
and the same will be an otiose one.
56.Since the 3rd Respondent/College accepted the voluntary retirement of
the Petitioner’s husband, the dismissal action of the 3rd Respondent in
dismissing the Petitioner’s husband at a later point of time by means of a
communication of the 1st Respondent are all of no avail and they are only non
est in the eye of law, as opined by this Court.
57.In law, the proposal of an Employee (voluntary retirement) when
accepted by an Employer an enforceable contract is concluded, as opined by this
Court.
58.In the present case, the acceptance of voluntary retirement of
Petitioner’s husband is the subject matter of approval.Taking disciplinary
action against Petitioner’s husband for his unauthorised absence is not the
approval that has been sought for by the 3rd Respondent/College Authority, in
the considered opinion of this Court. Moreover, the issue of initiation of
disciplinary proceedings as per the G.O.Ms.No.153 P & AR (FR III) dated
08.08.2000 cannot be gone into in the subject matter of approval sought for by
the 3rd Respondent/College in so far as it relates to the Petitioner’s husband.
59.In law, after acceptance of voluntary retirement by the 3rd
Respondent/College on humanitarian grounds, there cannot be any initiation of
disciplinary proceedings and any punishment being imposed on a person.
60.Another important vital fact to be taken into account of this Court,
based on the peculiar facts and circumstances of the case, is that the
Petitioner’s husband superannuation was on 10.05.2004 on completion of 58 years
in normal course. Suffice it for this Court to state that when the 3rd
Respondent/College after permitting the Petitioner’s husband to be relieved as a
staff member from the service of college on voluntary retirement by receiving
salary in lieu of 3 months notice on 10.02.1995 by means of passing a College
Committee resolution on 14.08.2001, it cannot approbate or reprobate or take a
Topsy-turvy stand based on the refusal of the 1st Respondent by means of a
letter dated 13.08.2002 rejecting the recommendation submitted by the 3rd
Respondent/College in permitting the Petitioner’s husband to go on voluntary
retirement retrospectively etc. Therefore, the 3rd Respondent/College
Committee’s action by a resolution dated 27.03.2006 to dismiss the Petitioner’s
husband with effect from 11.02.1995 the date on which her husband has absented
from duty is per se illegal and considering the Petitioner’s husband earlier
mental illness and later on again becoming insane and vanishing from the house
in the month of July and the same cannot stand a moment scrutiny in the eye of
law. Also, the 1st Respondent’s refusal to accord permission to the 3rd
Respondent’s College in permitting Petitioner’s husband to go on voluntary
retirement retrospectively by means of a communication dated 13.08.2002 stating
that only after taking disciplinary proceedings against the Petitioner’s husband
his case can be considered for voluntary retirement is equally an
invalid,illegal, unjust and unfair order. That apart, the reason assigned by the
1st Respondent in the said letter by citing G.O.Ms.No.153 dated 08.08.2000 for
not permitting the Petitioner’s husband to go on voluntary retirement is clearly
unsustainable in the eye of law because the said communication does not refer to
expressly or impliedly the factum of the 3rd Respondent College granting
permission to the Petitioner’s husband to go on voluntary retirement as per
resolution dated 14.08.2001. Also, in the said letter, there is a reference to
the G.O.Ms.No.153 P & AR (FR III) dated 08.08.2000 in and by which disciplinary
proceedings will have to be initiated by the 3rd Respondent/College in regard to
the Petitioner’s husband’s long unauthorised absence is not based on factual
ground realities of the present case which float on the surface.
61.In the result, the Writ Petition is allowed, leaving the parties to
bear their own costs. Accordingly, the impugned order of the 3rd
Respondent/College dated 15.09.2006 is set aside. The 3rd Respondent /College is
directed to pay the arrears of Salary, Leave Encashment, G.P.F. amount, Special
Provident Fund, D.C.R.G. Fund, Family Benefit Fund as per rules relating to the
Petitioner’s husband to the Petitioner by scrupulously following the Government
Orders, Letters/Circulars as envisaged by law. Inasmuch as the Petitioner’s
husband has been permitted by the 3rd Respondent to proceed on voluntary
retirement as per College Committee’s Resolution dated 14.08.2001, it is open to
the 3rd Respondent/College to treat the Petitioner’s husband’s long unauthorised
absence either as Leave on Loss of pay or without pay, as it deems fit and
proper, in the manner known to law. If situation warrants the Petitioner is to
execute an indemnity bond as specified in Government Letter No.21396-A/Pension
/92-2 dated 09.04.1991.
Sgl
To
1.The Director of Collegiate Education,
Chennai-6.
2.The Joint Director of Collegiate Education,
Madurai – 625 020.
3.The Secretary,
Devanagar Arts College,
Arupukottai – 626 101.
4.The Secretary to Government of Tamil Nadu
Department of Higher Education,
Fort St. George, Chennai.