{"id":233253,"date":"2011-05-12T00:00:00","date_gmt":"2011-05-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-renuga-devi-vs-s-k-singhal-1999-4-scc-293-on-12-may-2011"},"modified":"2018-11-16T18:55:45","modified_gmt":"2018-11-16T13:25:45","slug":"d-renuga-devi-vs-s-k-singhal-1999-4-scc-293-on-12-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-renuga-devi-vs-s-k-singhal-1999-4-scc-293-on-12-may-2011","title":{"rendered":"D.Renuga Devi vs S.K.Singhal [(1999) 4 Scc 293] on 12 May, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
D.Renuga Devi vs S.K.Singhal [(1999) 4 Scc 293] on 12 May, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 12\/05\/2011\n\nCORAM\nTHE HONOURABLE Mr.JUSTICE M.VENUGOPAL\n\nW.P.(MD)No.9583 of 2006\n\nD.Renuga Devi\t\t\t\t\t.. Petitioner\n\nV.\n\n1.The Director of Collegiate Education,\n   Chennai-6.\n\n2.The Joint Director of Collegiate Education,\n   Madurai - 625 020.\n\n3.The Secretary,\n   Devanagar Arts College,\n   Arupukottai - 626 101.\n\n4.The Secretary to Government of Tamil Nadu\n   Department of Higher Education,\n   Fort St. George, Chennai.\t\t\t.. Respondents\n\nPrayer\n\nPetition filed under Article 226 of the Constitution of India praying\nfor the issuance of a Writ of Certiorarified Mandamus calling for the records\nrelating to the proceedings in DAC\/A44\/2006-07\/228 dated 15.09.2006 on the file\nof the 3rd Respondent and quash the same and further directing the Respondent to\npay the death cum retirement benefits and family pension of the Petitioner's\nhusband Mr.R.Ramaraj to the Petitioner.\n\n!For Petitioner\t \t... M\/s.G.Prabhu Rajadurai\n\t\t\t    A.Abdul Kadhar\n^For RR 1, 2 and 4\t... Mr.D.Sasikumar\n\t\t\t    Government Advocate\nFor RR 3\t\t... Mr.K.M.Vijaiyakumar\n\n:ORDER\n<\/pre>\n
\tThe Petitioner has filed the present Writ of Certiorarified Mandamus in
\ncalling for the records pertaining to the proceedings in DAC\/A44\/2006-07\/228
\ndated 15.09.2006 on the file of the 3rd Respondent and to quash the same.
\nFurther, the Petitioner has also sought the relief of issuance of direction by
\nthis Court in directing the Respondents to pay the Death cum Retirement Benefits
\nand Family pension of the Petitioner’s husband R.Ramaraj to her.\n<\/p>\n
\t2.The Petitioner’s husband R.Ramaraj was appointed as a Physical Director,
\nDevanagar Arts College, Arupukottai (3rd Respondent) on 14.09.1970. She got
\nmarried to her husband in the year 1975. Her husband served as a Physical
\nDirector in the 3rd Respondent’s College without any blemish. He became mentally
\nunstable and left the house on 12.1.1995. His whereabouts were not known for
\nabout two years. She intimated about this fact to the 3rd Respondent’s College
\npromptly. Her efforts to trace her husband were not fruitful.\n<\/p>\n
\t3.The Principal of the 3rd Respondent’s College, by a certificate dated
\n06.10.1997, certified that they had reported the absence of her husband to the
\nEducational Authorities. She made an application on 03.12.1997 to the College
\nauthorities on the advise of the Principal to pay the salary and other benefits
\nto her husband. However, her husband was brought by some persons from Ramalinga
\nAdigalar Ashram, Vadalur in a very sick condition.  Because of her husband’s
\nhealth condition, he could not join duty. She arranged for his hospitalisation
\nand he recovered gradually. After his recovery, he gave a representation on
\n14.09.1998 to the 3rd Respondent\/College praying that his absence may be treated
\nas leave on loss of pay and permit him to join duty. His representation was
\nforwarded to the Respondents 1 and 2\/Authorities. The 3rd Respondent\/College by
\na separate letter in October 1998 requested the 1st Respondent\/Authority to
\nconsider her husband’s representation sympathetically and to permit him to
\nrejoin duty treating his absence as leave on loss of pay.\n<\/p>\n
\t4.Also, the 2nd Respondent\/Authority by virtue of the letter dated
\n23.8.1999 requested for necessary directions from the 1st Respondent to allow
\nher husband to rejoin duty. But no further step was taken thereafter. As such,
\nher husband who had recovered from his illness fully slipped into his illness
\nonce again because of the lethargic attitude of the authorities concerned.\n<\/p>\n
\t5.According to the Petitioner, the 3rd Respondent\/Secretary of the College
\nadvised her husband for voluntary retirement by paying 3 months salary in view
\nof the notice period. Her husband paid a sum of Rs.30,000\/- being the salary for
\n3 months since he had no other option and applied for voluntary retirement as he
\nhad already completed 25 years of service. The said application was not
\nconsidered. Again her husband made a representation on 01.06.2000 with a request
\nto consider his plea in this regard.  In view of the mental strain, he became
\ninsane and vanished from the house in July 2000. Till today, inspite of their
\nbest efforts, they could not trace him. Further, his whereabouts are still
\nunknown. Her husband’s 58th birthday was on 10.05.2004 on which date he would
\nhave retired on superannuation.\n<\/p>\n
\t6.The 3rd Respondent, after the date of superannuation of Petitioner’s
\nhusband, informed the Petitioner by a letter dated 22.06.2004 to inform the
\nwhereabouts of her husband so as to take disciplinary proceedings against him.
\nShe gave a reply on 05.07.2004 to the 3rd Respondent stating that already a sum
\nof Rs.30,000\/- was paid based on the request to retire her husband voluntarily
\nand since she could not trace her husband, the retirement benefits may be paid
\nto her. She submitted another certificate to the 1st Respondent requesting the
\nretirement benefits to her husband. In the said letter, she gave an undertaking
\nthat in case her husband returns and objects to any payment then she is returned
\nthe money received to the Government.\n<\/p>\n
\t7.The 1st Respondent considering a representation and affidavit proposed
\nto grant the pension benefits by a letter in Na.ka.No.631\/D2\/2006 dated
\n06.01.2006 requested the 4th Respondent to issue necessary Government Order to
\npay the retirement benefits to her. But no action was taken on the said letter.\n<\/p>\n
\t8.The Petitioner made a detailed representation to the Respondents on
\n24.06.2006 to pay the retirement benefits of her husband.  The 2nd Respondent,
\nafter receipt of  representation, directed the 3rd Respondent to take necessary
\naction as per rules. However, the Petitioner was shocked to note in the said
\nletter that there was a reference that her husband was dismissed from service on
\n21.7.2006. Another letter was received from the 2nd Respondent wherein she found
\nthat the College Committee passed a resolution to remove her husband from
\nservice and the same was approved by the 2nd Respondent. Till date no
\ndisciplinary action was initiated against her husband and neither herself nor
\nher husband received any show cause notice.\n<\/p>\n
\t9.The Petitioner made a request to the College to provide her a copy of
\nany disciplinary proceedings initiated against her husband and the order passed
\nthereon. Thereafter, the 3rd Respondent issued an order in Reference
\nNo.DAC\/A44\/2006-07\/228 dated 15.09.2006 mentioning that pursuant to the
\nresolution of the College Committee dated 27.03.2006 and the approval of the 2nd
\nRespondent dated 05.06.2006 her husband R.Ramaraj was removed from service with
\neffect from 11.02.1995. The said order of the 3rd Respondent is an arbitrary and
\nan illegal one.\n<\/p>\n
\t10.The Learned Counsel for the Petitioner contends that the impugned order
\nof dismissal dated 15.09.2006 passed against her husband without conducting an
\nenquiry.\n<\/p>\n
\t11.Advancing his arguments, the Learned Counsel for the Petitioner
\ncontends that her husband R.Ramaraj suffered from mental unstableness which is
\nknown to the Respondents especially the 3rd Respondent\/College and therefore,
\nthere cannot be any dismissal or any such punishment in the eye of law.\n<\/p>\n
\t12.Proceeding further, the Learned Counsel for the Petitioner takes a plea
\nthat the order of dismissal dated 15.09.2006 passed against her husband is an
\nillegal and invalid one in law because of the simple fact that no order of
\ndismissal can be passed by a competent authority after the date of
\nsuperannuation and disappearance of her husband.\n<\/p>\n
\t13.The Learned Counsel for the Petitioner submits that the Petitioner is
\nthe legally wedded wife of her husband R.Ramaraj and therefore, she is entitled
\nto claim all the benefits payable to her on the death or retirement of her
\nhusband when the same has been recommended by the 1st Respondent.  Also, the
\nstand of the Petitioner is that at no point of time her husband R.Ramaraj has
\nbeen placed under suspension by the 3rd Respondent\/College and also that no
\nsubsistence allowance or salary was paid.\n<\/p>\n
\t14.The main contention advanced by the Learned Counsel for the Petitioner
\nis that although her husband R.Ramaraj disappeared due to his mental illness and
\nher application for the payment of retirement benefits was favourably considered
\nby the Respondents at various point of time but no decision was taken, yet, she
\nis entitled to receive the dues like her husband’s salary, leave encashment,
\nGPF, SPF benefits whether her husband was removed from service or not which are
\nto be paid to her based on First Information Report about her husband’s
\ndisappearance.\n<\/p>\n
\t15.In the counter, the 2nd Respondent has averred that the Petitioner’s
\nhusband was appointed as Physical Director on 01.07.1970 in 3rd Respondent’s
\nCollege, Aruppukottai, an aided one in Virdhunagar District by the 3rd
\nRespondent and he served in College till 10.02.1995. After 10.02.1995 he had not
\nturned up for duty. The 3rd Respondent\/ College initiated disciplinary action
\nagainst the Petitioner’s husband for not reporting to duty without any
\ninformation and notice or applying for any kind of leave. As per instructions of
\nthe G.O.Ms.No.1046, Personnel and Administrative Reforms (FR. III) Department
\ndated 13.11.87, if a Government servant (permanent and approved probationer) who
\nhad completed five years of service and not turned up for duty for a continuous
\nperiod of one year at a stretch, then, the disciplinary action may be taken
\nagainst him as per rules.\n<\/p>\n
\t16.The Management\/College took disciplinary action against the
\nPetitioner’s husband by issuance of show cause notice [sent by registered post
\nto the residential address] as to why disciplinary action should not be
\ninitiated against him for his unauthorised absence with effect from 11.2.1995.
\nSince her husband left the service without giving any reference or provided the
\ncontact address, the Notice\/Tapals sent to the address (as per records available
\nin the College) was returned back by the postal authorities with an endorsement
\n‘It could not be delivered’. The 3rd Respondent\/College thereafter asked the 2nd
\nRespondent\/Authority for further action. The 2nd Respondent based on the request
\nof the 3rd Respondent informed in L.Dis.No.3201\/D2\/96 dated 28.5.96 that ‘paper
\nadvertisement’ be given in the matter and to pursue the further action.\n<\/p>\n
\t17.The 3rd Respondent\/College advertised in a paper ‘Daily Thanthi’ a
\n‘Caution Notice’ mentioning that ‘Thiru. Ramaraj should explain his unauthorised
\nabsence without applying for any kind of leave within 15 days from the date of
\npublication, otherwise he will be terminated from service permanently’. Even
\nafter the issuance of the said public notice in the Daily Thanthi Newspaper,
\nthere was no response from the Petitioner’s husband R.Ramaraj (Physical
\nDirector).\n<\/p>\n
\t18.The Petitioner on 03.12.1997 addressed to the 2nd Respondent\/Authority
\nthrough the 3rd Respondent mentioned that her husband absconded with effect from
\n12.1.1995 and his whereabouts were not known and she lost the hope that he would
\ncome back again. Also, she stated that as the legal heir she is entitled to
\nreceive the benefits of her husband.\n<\/p>\n
\t19.However, the Petitioner’s husband through his letter dated 14.9.98
\nrequested the Management to permit him to join duty and to treat the period of
\nhis unauthorised absence as medical leave with eligible pay or without pay.
\nFurther, in another letter (undated) he requested the Management to relieve him
\nservice by accepting his voluntary retirement petition on the ground of his ill
\nhealth. The 1st Respondent\/Director of Collegiate Education, Chennai issued
\nclarifications through his Letter in L.Dis.No.65941\/Q4\/98 dated 21.1.2000 to
\ninitiate disciplinary action against Petitioner’s husband for his unauthorised
\nabsence and not turning up for duty with effect from 11.02.1995 which was also
\nconfirmed by the 1st Respondent as per letter dated 06.06.2000. In the
\nmeanwhile, the Petitioner’s husband  returned back home submitted a written
\nrequisition dated 1.8.2001 to the 3rd Respondent stating that because of his
\ndeteriorated health condition he may be permitted to go on Voluntary Retirement
\nwith effect from 10.02.1995 on payment of three months pay in lieu of 3 months
\nnotice.\n<\/p>\n
\t20.The 3rd Respondent\/College contrary to the orders passed by the 1st
\nRespondent\/Director of Collegiate Education, Chennai vide his letter dated
\n21.01.2000 had accepted the voluntary retirement notice given by the individual
\nand unanimously passed a resolution in the College Council Meeting held on
\n14.08.2001 and accepted 3 months notice sum of Rs.16,470\/- which was remitted
\ninto Government account. The 3rd Respondent\/College Authority’s action in
\naccepting 3 months notice sum was negatived by the 2nd Respondent\/Joint Director
\nof Collegiate Education, Madurai-20 in Rc.No.7413\/D2\/98 dated 12.12.2001 citing
\nthe clarifications issued by the 1st Respondent\/ Director of Collegiate
\nEducation, Chennai. Left with no other option, the 3rd Respondent\/College in
\norder to solve the problem decided to award punishment as per Schedule-I, Sub-
\nclause (1) Rule 12(2) of Tamil Nadu Private Colleges (Regulation) Act, 1976, as
\nper the guidelines issued in G.O.Ms.No.1046 P & AR (FR.III) Department dated
\n13.11.1997 and as per instructions specified in Government Letter
\nNo.8699\/FR.III\/91-5 P & AR Department dated 8.8.1991, mentioning the long
\nabsence for a period of more than a year and as per resolution passed in College
\nCouncil Meeting held on 27.3.2006.\n<\/p>\n
\t 21. The 3rd Respondent sent a proposal to the 2nd Respondent\/Competent
\nAuthority viz., Joint Director of Collegiate Education, Madurai seeking his
\napproval to dismiss the Petitioner’s husband. The 2nd Respondent after perusing
\nall records and connected documents accorded approval for the action taken by
\nthe 3rd Respondent\/College to dismiss the Petitioner’s husband R.Ramaraj,
\nPhysical Director with effect from 11.02.1995 as per Sub-clause 12(2) Schedule-I
\nof Tamil Nadu Private Colleges (Regulation) Act, 1976.\n<\/p>\n
\t22.Inasmuch as the Petitioner’s husband R.Ramaraj was dismissed from
\nservice permanently with effect from 11.02.1995 as per resolution passed by the
\nCollege Council and in view of prior approval by the competent authority, his
\nLegal Heir is not eligible to receive the family pension as per rules. Necessary
\naction was taken to close the Aided College Provident Fund Account of the
\nPetitioner’s husband.\n<\/p>\n
\t23.The categorical stand of the 2nd Respondent is that since the
\ntermination order dated 15.09.2006 of Petitioner’s husband was unanimously
\npassed by the College Committee constituted by the 3rd Respondent in accordance
\nwith the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976
\nand also because of the prior approval for Petitioner’s husband’s termination
\nwas obtained from the 2nd Respondent\/Joint Director of Collegiate Education,
\nMadruai as per rules, the Writ Petition is liable to be dismissed.\n<\/p>\n
\t24.The Secretary of the 3rd Respondent\/College in his counter has among
\nother things observed that ‘the Petitioner’s husband R.Ramaraj (Physical
\nDirector) absented himself unauthorisedly from duty 12.01.1995 and this was
\nintimated by the College to the Higher Authorities of the Department of
\nCollegiate Education. By means of a notice dated 29.11.1995 the Petitioner’s
\nhusband was requested to explain in writing the reasons for his absence from
\nduty and as to whey disciplinary action should not be taken against him on or
\nbefore 30.12.1995. The said notice returned unserved. A similar memo dated
\n22.01.1996 was sent to the Petitioner’s husband and this was returned with an
\nendorsement ‘party left without intimation’. As such, the 3rd Respondent\/College
\ngave a paper publication on 17.o7.1996 to the effect that the Petitioner’s
\nhusband will be removed from service if explanation was not submitted to the
\nCollege as regards the his unauthorised absence within 15 days therefrom.\n<\/p>\n
\t25.The Petitioner on 03.12.1997 approached the 3rd Respondent\/ College by
\nsubmitting a representation with a request to forward the same to the 2nd
\nRespondent mentioning that her husband R.Ramaraj disappeared from 12.01.1995 and
\nshe had not known the whereabouts of her husband. Further, she also made a
\nrequest to pay the remaining salary of other monitory benefits belonging to her
\nhusband. The Petitioner’s husband suddenly appeared before the Principal of the
\n3rd Respondent\/College on 14.09.19998 seeking permission by furnishing a
\nrepresentation to rejoin duty excusing the long period of his unauthorised
\nabsence and treating the period as leave on loss of pay on humanitarian grounds,
\nBy another representation dated 14.09.1998 the Petitioner’s husband R.Ramaraj
\nrequested the 3rd Respondent\/College to permit him to go on voluntary retirement
\non payment of three months salary thereby expressed his inability to continue in
\nservice.\n<\/p>\n
\t26.The representation of the Petitioner’s husband dated 14.09.1998  was
\ncommunicated to the 1st Respondent\/Director of Collegiate Education as per
\nproceedings of the 3rd Respondent\/College dated 18.02.1999. By taking a lenient
\nview and considering the request of the husband of the Petitioner on
\nhumanitarian grounds, the College Committee of the 3rd Respondent passed a
\nresolution on 14.08.2001 to accept the application and to authorise the College
\nSecretary to relieve the staff member from service on voluntary retirement by
\nreceiving 3 months salary in lieu of 3 months notice subject to the approval of
\nthe 1st Respondent.\n<\/p>\n
\t27.The 3rd Respondent\/College sent a communication dated 11.10.2001
\nenclosing the resolution of the College Committee and the challan file for
\npayment of 3 months salary of Rs.16,470\/- to the 2nd Respondent\/Joint Director
\nof Collegiate Education, Madurai requesting him to approve the voluntary
\nretirement of the Petitioner’s husband so as to enable him to get personal
\nbenefits on humanitarian grounds.\n<\/p>\n
\t28.The Petitioner’s husband was relieved from service on voluntary
\nretirement on 17.08.2001 by paying his 3 months salary in lieu of 3 months
\nnotice with the specific observation that the relieving order is subject to the
\napproval of the 1st Respondent\/Director of Collegiate Education, Chennai. The
\n1st Respondent\/Director of Collegiate Education through a letter dated
\n13.08.2002 rejected the recommendation of the 3rd Respondent\/College to permit
\nthe Petitioner’s husband to proceed on voluntary retirement on the basis that he
\ncannot be permitted to go on voluntary retirement retrospectively besides
\nobserving that the institution had to impose punishment on the staff member who
\nfailed to attend for duty duly conducting disciplinary proceedings according to
\nthe Government order dated 08.08.2000.\n<\/p>\n
\t29.Based on the order of the 1st Respondent\/Director of Collegiate
\nEducation, Chennai dated 13.08.2002 and as per G.O.Ms.No.1046 Personnel and
\nAdministrative Reforms (FR III) dated 13.11.1987 and based on the Government
\nLetter No.8699\/FR III\/91-5 Personnel and Administrative Reforms dated
\n08.08.1991, the 3rd Respondent College  Committee passed a resolution dated
\n27.03.2006 to dismiss the Petitioner’s husband with effect from 11.02.1995.
\nGiving effect to the resolution of the College Committee a proposal was sent by
\nthe 3rd Respondent to the 2nd Respondent\/Joint Director of Collegiate Education,
\nMadurai. The 2nd Respondent, on consideration of the earlier proceedings and on
\nelaborate consideration of the facts and circumstances of the case, had approved
\nthe decision taken by the College Committee to dismiss the Petitioner’s husband
\nfrom service. Therefore, the Petitioner’s husband R.Ramaraj was removed from
\nservice by means of an order dated 15.09.2006 passed by the Secretary of the 3rd
\nRespondent\/College and the same was sent to the Petitioner’s husband by
\nregistered post.\n<\/p>\n
\t30.The Principal of the 3rd Respondent\/College had not advised the
\nPetitioner at any point of time to file an application before the College
\nAuthorities as regards the payment of salary and other benefits of her husband.\n<\/p>\n
\t31.Just because the request of the Petitioner’s husband to permit him to
\ngo on voluntary retirement by paying 3 months salary in lieu of 3 months notice
\nwas considered on humanitarian ground and rejected the Petitioner could not
\nclaim any relief in the Writ Petition because of the fact her husband had
\nadmitted his guilty of unauthorised absence from duty for a long period. Hence,
\nthe impugned order of the 3rd Respondent dated 15.09.2006 is perfectly a legal,
\nvalid and sustainable one in law.\n<\/p>\n
\t32.The Learned Counsel for the Petitioner cites the decision of this Court
\nin Angelus V. Director of Elementary Education, Chennai and others<\/a> (2006) 2
\nM.L.J. 479 at page 480 wherein it is held as follows:\n<\/p>\n
“The submission of voluntary retirement application on 26.2.1988 to the
\nrespondents 2 and 3 is proved by production of letter as well as postal
\nacknowledgment. The completion of 21 years, 11 months and 23 days of pensionable
\nservice is certi the third respondent by his proceedings dated 29.11.2001.
\nThose, who completed more than 2 0 years of service or attained 50 years of age
\nare entitled to submit application for voluntary retirement as per Rule 56(3) of
\nthe Fundamental Rules. If no order of rejection of voluntary retirement is
\npassed and communicated to the person concerned, it is to be treated as deemed
\nacceptance as per Rule 56(3)(f) of the Fundamental Rules.\n<\/p>\n
12. The direction to rejoin duty was given by the second respondent prior to the
\nexpiry of notice period and therefore the petitioner joined during the notice
\nperiod and relieved himself from 5.6.1988, i.e, the date of expiry of notice
\nperiod. In the absence of any rejection of application for voluntary retirement,
\nas submitted by the petitioner, and in the absence of any resignation letter
\nsubmitted by the petitioner as contended by the second respondent, petitioner
\ncannot be treated as resigned from his post and if really the petitioner had
\nresigned as contended now in the impugned order, the third respondent ought not
\nto have submitted proposal for sanction of pension and gratuity as stated in the
\nproposal dated 29.11.2001. For calculation of the pensionary service, the period
\nof leave sanctioned on loss of pay alone is to be deducted. Hence, petitioner
\nsatisfy the 20 years of service period at the time of submitting application for
\nvoluntary retirement. Thus the petitioner is entitled to get himself relieved
\nfrom 5.6.1988 and the respondents are bound to sanction pension and other
\nbenefits to him from 6.6.1988.\n<\/p>\n
\t33.He also cites the order of this Court dated 30.06.2006 in W.P.No.5480
\nof 1998 between N.Pankajam V. State of Tamil Nadu Rep. By<\/a> its Commissioner and
\nSecretary Department of Transport, Fort St. George, Chennai – 600 009 wherein it
\nparagraph 17 and 18 it is laid down as follows:\n<\/p>\n
“17. Here the petitioner has established that the petitioner’s husband has not
\nbeen heard for over 7 years from 19.05.1987 and the same is not disputed and
\ntherefore, it is to be presumed that the petitioner’s husband is dead as per
\nSection 108 of Indian Evidence Act.\n<\/p>\n
18. In view of the said finding, the action of the second respondent in removing
\nthe name of the petitioner’s husband from the roll of the Corporation is
\nillegal, since the petitioner’s husband cannot be treated as an absentee. As he
\nwas not available, he could not report for duty. The contention of the second
\nrespondent that the petitioner’s husband having been removed from the roll, the
\npetitioner is not entitled to get retirement benefits and her son cannot be
\ngiven compassionate appointment are unsustainable.”\n<\/p>\n
\t34.He seeks in aid of the Division Bench Judgment of this Court in
\nP.Muthusamy V. Tamil Nadu Cements Corporation Limited,<\/a> rep. By its Chairman and
\nManaging Director, Chennai and Another (2006) 4 M.L.J. 504 wherein it is held as
\nfollows:\n<\/p>\n
“In the absence of specific enabling provision in the TANCEM Service Rules, the
\norder reserving the right to continue disciplinary proceeding, after
\nsuperannuation, is illegal and without jurisdiction.”\n<\/p>\n
\t35.The Learned Counsel for the 3rd Respondent cites the decision of
\nHon’ble Supreme Court in Aligarh Muslim University and others V. Mansoor Ali
\nKhan<\/a> (2000) 7 Supreme Court Cases 529 at page 532 & 533 it is inter alia held as
\nfollows:\n<\/p>\n
“M was put on advance notice that it would not be possible to give any further
\nextension i.e. Beyond one year on the ground of continuance in the job at Libya
\nand he was to resume duty by 18.4.1982. In fact, thereafter some special
\nconsideration was still shown in his favour by way of granting him joining time
\nup to 1.7.1982. It was clearly said that otherwise he would be deemed to have
\nvacated the post. If he had, in spite of this warning, gone ahead by accepting a
\nfurther contact in Libya, it was his own unilateral act in the teeth of the
\nadvance warning given. That conduct was rightly held by the Single Judge to be
\nsufficient to deny him relief under Article 226.\n<\/p>\n
\tHowever, when rules permit and provide for an employee to go abroad
\ndiscretion must be exercised reasonably while refusing extension. In the present
\ncase, giving of further extension only for one year out of the further period of
\nthree years sought for is not unreasonable.\n<\/p>\n
\tIn the cases of deemed vacation of office under Rule 5(8)(i) of the 1969
\nRules, there is a deeming provision of vacation of the post where the
\nexplanation offered by the employee, consequent upon a notice, is found not
\nsatisfactory. But in the peculiar circumstances of M’s case, he has no other
\nexplanation – from what is revealed in his writ petition filed later – other
\nthan his further commitment abroad for 2 more years. Hence, even if no notice
\nwas given, the position would not have been different because that particular
\nexplanation would not be treated as satisfactory had already been intimated to
\nhim in advance. Therefore, the absence of a notice in M’s case must be treated
\nas having made no difference. The only conclusion that can be drawn is that even
\nif M had been given notice and he had mentioned this fact of job continuance in
\nLibya as a reason, that would not have made any difference and would not have
\nbeen treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the
\nadmitted or undisputed facts, only one view was possible. The case would fall
\nwithin the exception noted in S.L.Kapoor case. It has, therefore, to be held
\nthat no prejudice was caused to M for want of notice under Rule 5(8)(i). Point 5
\nis decided therefore, against M.\n<\/p>\n
S.L.Kapoor V. Jagmohan, (1980) 4 SCC 379 followed<\/p>\n
\tCare must be taken, wherever the court is justifying a denial of natural
\njustice, that its decision is not described as a “preconceived view” or one in
\nsubstitution of the view of the authority who would have considered the
\nexplanation.”\n<\/p>\n
\t36.In W.P.No.37681 of 2006 (O.A.No.5936 of 1998) between V.Chandrasekaran
\nV. Director of Elementary Education, Chennai-6 and<\/a> 2 others this Court on
\n08.10.2009 has, among other things, in paragraph 3 observed as follows:
\n“3. The claim of the petitioner was that he gave a notice to go on voluntary
\nretirement by his notice dated 23.02.1998 and three months notice which was
\nrequired under the Rules comes to an end on 25.5.1998. He sent a letter dated
\n25.05.1998 to the third respondent stating that since there was no rejection of
\nhis request to go on voluntary retirement, it was deemed to have been accepted.
\nTherefore, he stopped attending work from 25.05.1998. It was also the case of
\nthe petitioner that the rejection order which was challenged dated 20.05.1998
\nwas received by him only on 02.06.1998 i.e. after the period of expiry of the
\nnotice. 4.On notice from the Tribunal, the respondents have filed a reply
\naffidavit dated 05.10.2009. In the reply affidavit, it was stated that the
\npetitioner was suspended pursuant to the registration of a criminal case in
\nCrime No.2\/90 by the Sub-Inspector of Police, Dharmapuri Police Station. The
\nsaid case was tried as Calendar Case 14\/92 before the Judicial Magistrate No.I,
\nDharmapuri. The said case ended in acquittal in favour of the petitioner by a
\njudgment dated 16.08.1995. Thereafter, on the representation of the petitioner,
\nhe was restored to service on 23.02.1998. After joining duty for one day, he
\ngave notice to go on voluntary retirement. It was further stated that so far as
\nthe regularisation of the period of suspension from 6.1.90 to 22.9.98 was
\nconcerned, as it was for more than eight years, necessary orders will have to be
\nobtained from the Government. The petitioner was also informed by them that he
\nshould submit necessary documents to enable them to forward the petitioner’s
\nrequest to the Government for regularising his service. The respondent denied
\nthe statement made by the petitioner that the order was ante dated. The
\npetitioner was also informed that before getting relieved, prior permission
\nshould have been obtained by the petitioner, but he never informed the
\ndepartment about his leaving service nor handed over charge. The Rule requires
\nclearance from the Vigilance Department for going on Voluntary Retirement and
\nthe petitioner’s service during the interregnum period of suspension was also
\nnot regulated.\n<\/p>\n
\tFurther, in paragraph 10 and 11, it is, among other things, held
\nhereunder:\n<\/p>\n
“10… But on the contrary in the present case, the petitioner himself had filed
\nthe order rejecting the case of the petitioner, which was dated 20.05.1998. In
\nthe Original application, he had stated that he had received the said order only
\non 02.06.1998. Though he contended that the said order was ante dated but the
\nsame was denied by the respondents in the reply statement.\n<\/p>\n
11.The further question arises for consideration was that if the competent
\nauthority rejects the request of the petitioner within the notice period,
\nwhether it should be communicated before the expiry of the notice. Fundamental
\nRule 56(3)(f) merely says that the appointing authority shall issue orders
\nbefore the date of expiry of notice and nowhere the Rule contemplates that the
\nrejection order must be communicated to the petitioner. Presumably having that
\nin mind, the petitioner had made a statement that the order was ante dated. When
\nthe respondents have refused about any ante dating of the order, this Court has
\nno other reason to disbelieve the statement made in the reply affidavit.”\n<\/p>\n
\t37.It is to be pointed out that the term ‘voluntary retirement’ is a
\ncondition of service by means of a statutory provision. Ordinarily, a person
\nretires in the case of a voluntary retirement on completion of qualifying
\nservice as per Rules.\n<\/p>\n
\t38.Once a voluntary retirement has been permitted, there is no question of
\nwithholding or recession of the same in the absence of rules to that effect. A
\nvoluntary retirement becomes effective when it operates to terminate the
\nemployment or the tenure of the resigner viz., from the date of actual release
\nby the employer and not merely the date of acceptance of the offer of
\nresignation.\n<\/p>\n
\t39.This Court aptly points out the decision of Hon’ble Supreme Court in
\nB.J.Shelat V. State of Gujarat and others<\/a> (1978) 2 SCC 202 and 203 wherein it is
\nheld as follows:\n<\/p>\n
“Rule 161 provides for the retirement of a government servant before attaining
\nthe age of superannuation. Sub-rule (2) provides that any government servant to
\nwhom clause (a) applies may be giving notice of not less than three months in
\nwriting to the appointing authority, retire from service, and in any other case,
\nafter he has attained age of 55 years: provided that it shall be open to the
\nappointing authority to withhold permission to retire to a government servant
\nwho is under suspension or against whom departmental proceedings are pending or
\ncontemplated. In the present case, no departmental proceedings were pending; but
\nit could be said that a proceeding was under contemplation. However, on a
\nreading of the Rule and the Proviso it is incumbent on the government to
\ncommunicate to the government servant its decision to withhold permission to
\nretire on one of the grounds specified in the Proviso. The proviso contemplates
\na positive action by the appointing authority. The words “it shall be open to
\nthe appointing authority to withhold the permission” indicate that the
\nappointing authority has got an option to withhold permission and that could be
\nexercised by communicating its intention to withhold permission to the
\ngovernment servant. The question whether the communication should reach the
\ngovernment servant or whether it would be sufficient if such an order is sent
\nout and goes out of the control of the appointing authority before the relevant
\ndate, is not relevant in this case as admittedly the appointing authority has
\nnot chosen to withhold permission and the order of suspension was not
\ncommunicated before the date of superannuation. The word “withhold” cannot be
\nread to mean that in the absence of a communication it ‘must be understood that
\npermission was withheld.”\n<\/p>\n
\tMoreover, in the aforesaid decision at page 207 and 208 in paragraph 9 and
\n10 it is observed hereunder:\n<\/p>\n
“9.Mr. Patel next referred us to the meaning of the word “withhold” in Webster’s
\nThird New International Dictionary which is given as “hold back” and submitted
\nthat the permission should be deemed to have been withheld if it is not
\ncommunicated. We are not able to read the meaning of the word “withhold” as
\nindicating that in the absence of a communication is must be understood as the
\npermission having been withheld.\n<\/p>\n
10.It will be useful to refer to the analogous provision in the Fundamental
\nRules issued by the Government of India applicable to the Central Government
\nservants. Fundamental Rule 56(a) provides that except as otherwise provided in
\nthis Rule, every Government servant shall retire from service on the afternoon
\nof the last day of the month in which lie attains the age of fifty-eight years.
\nFundamental Rule 56 (j) is similar to Rule 161 (aa) (1) of the Bombay Civil
\nServices Rules conferring an absolute right on the appropriate authority to
\nretire a Government servant by giving not less than three months notice. Under
\nFundamental Rule 56(k) the Government servant is entitled to retire from service
\nafter he has attained the age of fifty-five years by giving notice of not less
\nthan three months in writing to the appropriate authority on attaining the age
\nspecified. But proviso (b) to sub-rule 56(k) states that it is open to the
\nappropriate authority to withhold permission to a Government servant under
\nsuspension who seeks to retire under this clause. Thus under the fundamental
\nRules issued by the Government of India also the right of the Government servant
\nto retire is not an absolute right but is subject to the proviso wherever the
\nappropriate authority may withhold permission to a Government servant under
\nsuspension. On a consideration of Rule 161(2) (ii) and the proviso we are
\nsatisfied that it is incumbent on the Government to communicate to the
\nGovernment servant its decision to withhold permission to retire on one of the
\nground specified in the proviso.”\n<\/p>\n
\t40.Also, this Court worth recalls the decision of Hon’ble Supreme Court in
\nTek Chand V. Dile Ram Judgments Today<\/a> 2001 (2) SC 114 at page 136 to 140 in
\nparagraph Nos.33 to 39 it is held thus:\n<\/p>\n
“33.Under sub-rule (1) of the said Rule, at any time after completion of 20
\nyears qualifying service, a Government servant could give notice of not less
\nthan three months in writing to the appointing authority for retirement from
\nservice. Under sub-rule (2), voluntary retirement given under sub-rule (1) shall
\nrequire acceptance by the appointing authority. In the proviso to sub-rule (2)
\nof Rule 48-A, it is clearly stated that in case the appointing authority does
\nnot refuse to grant the permission for retirement before the expiry of the
\nperiod specified in the said notice, the retirement shall become effective from
\nthe date of expiry of the said period.\n<\/p>\n
34.It is clear from sub-rule (2) of the Rule that the appointing authority is
\nrequired to accept the notice of voluntary retirement given under sub-rule (1).
\nIt is open to the appointing authority to refuse also on whatever grounds
\navailable to it but such refusal has to be before the expiry of the period
\nspecified in the notice. The proviso to sub-rule (2) is clear and certain in its
\nterms. If the appointing authority does not refuse to grant the permission for
\nretirement before the expiry of the period specified in the said notice, the
\nretirement sought for becomes effective from the date of expiry of the said
\nperiod. In this case, admittedly, the appointing authority did not refuse to
\ngrant the permission for retirement to Nikka Ram before the expiry of the period
\nspecified in the notice dated 5.12.1994. The learned senior counsel for the
\nrespondent argued that the acceptance of voluntary retirement by appointing
\nauthority in all cases is mandatory. In the absence of such express acceptance
\nthe Government servant continues to be in service. In support of this
\nsubmission, he drew our attention to Rule 56(k) of Fundamental Rules. He also
\nsubmitted that acceptance may be on a later date, that is, even after the expiry
\nof the period specified in the notice and the retirement could be effective from
\nthe date specified in the notice. Since the proviso to sub- rule (2) of Rule 48-
\nA is clear in itself and the said Rule 48-A is self-contained, in our opinion,
\nit is unnecessary to look to other provisions, more so in the light of law laid
\ndown by this Court. An argument that acceptance can be even long after the date
\nof the expiry of the period specified in the notice and that the voluntary
\nretirement may become effective from the date specified in the notice, will lead
\nto anomalous situation. Take a case, if an application for voluntary retirement
\nis accepted few years later from the date specified in the notice and voluntary
\nretirement becomes operative from the date of expiry of the notice period
\nitself, what would be the position or status of such a Government Servant during
\nthe period from the date of expiry of the notice period upto the date of
\nacceptance of the voluntary retirement by the appointing authority? One either
\ncontinues in service or does not continue in service. It cannot be both that the
\nvoluntary retirement could be effective from the date of expiry of the period
\nmentioned in the notice and still a Government servant could continue in service
\ntill the voluntary retirement is accepted. The proviso to sub-rule (2) of Rule
\n48-A of the Rules does not admit such situation.\n<\/p>\n
35.This Court in a recent judgment in the case of State of Haryana and others
\nvs. S.K.Singhal<\/a> [(1999) 4 SCC 293], after referring to few earlier decisions of
\nthis Court touching the very point in controversy in para 13 of the judgment has
\nheld thus :-\n<\/p>\n
13. Thus, from the aforesaid three decisions it is clear that if the right to
\nvoluntarily retire is conferred in absolute terms as in Dinesh Chandra Sangma
\ncase by the relevant rules and there is no provision in the rules to withhold
\npermission in certain contingencies the voluntary retirement comes into effect
\nautomatically on the expiry of the period specified in the notice. If, however,
\nas in B.J. Shelat case and as in Sayed Muzaffar Mir case the authority concerned
\nis empowered to withhold permission to retire if certain conditions exist, viz,
\nin case the employee is under suspension or in case a departmental enquiry is
\npending or is contemplated, the mere pendency of the suspension or departmental
\nenquiry or its contemplation does not result in the notice for voluntary
\nretirement not coming into effect on the expiry of the period specified. What is
\nfurther needed is that the authority concerned must pass a positive order
\nwithholding permission to retire and must also communicate the same to the
\nemployee as stated in B.J. Shelat case and in Sayed Muzaffar Mir case before the
\nexpiry of the notice period. Consequently, there is no requirement of an order
\nof acceptance of the notice to be communicated to the employee nor can it be
\nsaid that non-communication of acceptance should be treated as amounting to
\nwithholding of permission.\n<\/p>\n
36.In our view, this judgment fully supports the contention urged on behalf of
\nthe appellant in this regard. In this judgment, it is observed that there are
\nthree categories of rules relating to seeking of voluntary retirement after
\nnotice. In first category, voluntary retirement automatically comes into force
\non expiry of notice period. In second category also, retirement comes into force
\nunless an order is passed during notice period withholding permission to retire
\nand in third category voluntary retirement does not come into force unless
\npermission to this effect is granted by the competent authority. In such a case,
\nrefusal of permission can be communicated even after the expiry of the notice
\nperiod. It all depends upon the relevant rules. In the case decided, the
\nrelevant rule required acceptance of notice by appointing authority and the
\nproviso to the Rule further laid down that retirement shall come into force
\nautomatically if appointing authority did not refuse permission during the
\nnotice period. Refusal was not communicated to the respondent during the notice
\nperiod and the court held that voluntary retirement came into force on expiry of
\nthe notice period and subsequent order conveyed to him that he could not be
\ndeemed to have voluntary retired had no effect. The present case is almost
\nidentical to the one decided by this Court in the aforesaid decision.\n<\/p>\n
37.This Court in B.J. Shelat vs. State of Gujarat & Ors.<\/a> [ (1978) 2 SCC 201 ]
\nwhile dealing with a case of voluntary retirement, referring to Bombay Civil
\nService Rules, Rule 161(2)(ii) proviso and Rule 56(k) of the Fundamental Rules,
\nin similar situation, held that a positive action by the appointing authority
\nwas required and it was open to the appointing authority to withhold permission
\nindicating the same and communicating its intention to the Government Servant
\nwithholding permission for voluntary retirement and that no action can be taken
\nonce the Government servant has effectively retired. Paras 9 and 10 of the said
\njudgment read thus :\n<\/p>\n
9. Mr. Patel next referred us to the meaning of the word withhold in Websters
\nThird New International Dictionary which is given as hold back and submitted
\nthat the permission should be deemed to have been withheld if it is not
\ncommunicated. We are not able to read the meaning of the word withhold as
\nindicating that in the absence of a communication it must be understood as the
\npermission having been withheld.\n<\/p>\n
10. It will be useful to refer to the analogous provision in the Fundamental
\nRules issued by the Government of India applicable to the Central Government
\nservants. Fundamental Rule 56(a) provides that except as otherwise provided in
\nthis Rule, every Government servant shall retire from service on the afternoon
\nof the last day of the month in which he attains the age of fifty-eight years.
\nFundamental Rule 56(j) is similar to Rule 161(aa)(1) of the Bombay Civil
\nServices Rules conferring an absolute right on the appropriate authority to
\nretire a Government servant by giving not less than three months notice. Under
\nFundamental Rule 56(k) the Government servant is entitled to retire from service
\nafter he has attained the age of fifty-five years by giving notice of not less
\nthan three months in writing to the appropriate authority on attaining the age
\nspecified. But proviso (b) to sub-rule 56(k) states that it is open to the
\nappropriate authority to withhold permission to a Government servant under
\nsuspension who seeks to retire under this clause. Thus under the Fundamental
\nRules issued by the Government of India also the right of the Government servant
\nto retire is not an absolute right but is subject to the proviso where under the
\nappropriate authority may withhold permission to a Government servant under
\nsuspension. On a consideration of Rule 161(2)(ii) and the proviso, we are
\nsatisfied that it is incumbent on the Government to communicate to the
\nGovernment Servant its decision to withhold permission to retire on one of the
\ngrounds specified in the proviso.\n<\/p>\n
In this decision effect of Rule 56(k) of Fundamental Rules is also considered
\nwhich answers the argument of the learned counsel for the respondent on this
\naspect. It may also be noticed that under Rule 48-A in Government of Indias
\ndecision giving instructions to regulate voluntary retirement it is stated, Even
\nwhere the notice of voluntary retirement given by a Government servant requires
\nacceptance by the appointing authority, the Government servant giving notice may
\npresume acceptance and the retirement shall be effective in terms of the notice
\nunless the competent authority issues an order to the contrary before the expiry
\nof the period of notice.\n<\/p>\n
38.If we accept the argument of the learned senior counsel for the respondent,
\neven if the refusal of voluntary retirement is not communicated within the
\nperiod specified in notice, the voluntary retirement cannot be effective unless
\nit is accepted by the appointing authority, no meaning and effect can be given
\nto the proviso to sub-rule (2) to Rule 48-A. It is cardinal rule of construction
\nthat no word or provision should be considered redundant or superfluous in
\ninterpreting the provisions of a statute or a rule.\n<\/p>\n
39.The High Court looking to the letters dated 29.12.1994, 18.12.1996, 2.4.1998,
\n26.3.1998 and 7.8.1998 came to the conclusion that Nikka Ram was in Government
\nservice on the date of filing nomination paper. The High Court also observed
\nthat there was glaring omission on the part of the appellant in not
\ncontroverting the pleadings and evidence of the respondent with regard to Nikka
\nRam being in Government service at the relevant time and also relied on the oral
\nevidence in this regard to say that Nikka Ram was holding office of profit by
\nbeing in Government service on the date of filing nomination paper and as such
\nhis nomination paper was wrongly accepted. It is not disputed, as already stated
\nabove, that no communication was given to Nikka Ram before the expiry of the
\nperiod specified in the notice of voluntary retirement. Nikka Ram was not
\nexamined. Exbt. PW3\/2, letter dated 26.3.1998, Exbt. PW3\/3, letter dated
\n2.4.1998 and Exbt. PW3\/3 letter dated 7.8.1998 were of dates subsequent to the
\ndate of filing of nomination paper and even declaration of the result of the
\nelection on 2.3.1998. On the basis of the material available on record on the
\ndate of scrutiny of nomination paper, there was nothing to show that Nikka Ram
\ncontinued in Government service in view of the admitted position that he had
\nsubmitted application for voluntary retirement by giving notice on 5.12.1994 and
\nno refusal was communicated to him, refusing acceptance of voluntary retirement
\nbefore 28.2.1995. By virtue of Rule 48-A, as discussed above, the voluntary
\nretirement of Nikka Ram came into force and became effective from 28.2.1995.
\nNeither Nikka Ram nor Government of Himachal Pradesh are parties to this appeal
\nbefore us. In this appeal we do not wish to deal with the status of Nikka Ram in
\nrelation to Government service or the respective rights and contentions, if any,
\nof Nikka Ram and State Government in regard to his service and the consequences
\nthat may follow. For the purpose of this appeal it is enough to say that on the
\ndate of filing and scrutiny of nomination paper of Nikka Ram, he should be
\ndeemed to have been voluntarily retired by operation of proviso to sub-rule (2)
\nof Rule 48-A.”\n<\/p>\n
\t41.Apart from the above decisions, it is useful for this Court to cite the
\nfollowing decisions:\n<\/p>\n
\t(a)In Pudubidri Damodar Shenoy V. Indian Airlines Limited and<\/a> another
\nJudgments Today 2009 (12) SC 108 at page 109 and 110 it is held as follows:
\n“Regulation 12 of the Service Regulations, inter alia, enables an employee to
\nseek voluntary retirement on attaining the age of 55 years or on completion of
\n20 years of continuous service by giving three months notice. An employee who
\nhas attained the age of 55 years and has applied for voluntary retirement under
\nRegulation 12, his voluntary retirement is automatic on expiry of notice period
\ni.e. three months. Is it equally applicable to an employee who has not attained
\nthe age of 55 years but completed 20 years of continuous service and applied for
\nvoluntary retirement. In our judgment, it is not so because for a category
\ncovered by clause (b), namely, an employee having completed 20 years of
\ncontinuous service who has given three months notice for voluntary retirement
\nfrom the service, a proviso appended thereto provides that voluntary retirement
\nunder clause (b) shall be subject to approval of the competent authority.
\nThe use of the word `shall’ in the proviso, prima facie leads to an inference
\nthat provision is imperative. There is nothing in the context to suggest that it
\nis merely directory. It is followed by the words, `subject to approval’. The
\neffect of the use of words `subject to’ is to introduce a condition. The
\nexpression, “shall be subject to approval” is indicative of its intendment that
\nthe voluntary retirement applied by the employees covered by clause (b) is
\neffective only upon approval by the competent authority.
\nThe appellant issued a notice of voluntary retirement under Regulation 12 (b) on
\nSeptember 30, 2005. The notice period was to expire on December 31, 2005. It is
\nan admitted position that the competent authority neither gave approval nor
\nindicated disapproval to the appellant within the notice period of three months.
\nThe employee never treated that there has been cessation of employment on expiry
\nof three months notice period inasmuch as he continued to attend his duties
\nafter December 31, 2005 until June 30, 2006. It is only by his letter dated June
\n8, 2006 that the appellant requested the respondent to relieve him in terms of
\nhis notice dated September 30, 2005 by June 30, 2006 and he stopped attending
\nwork from July 1, 2006. The letter dated June 8, 2006 does not make any material
\ndifference as the fact of the matter is that after expiry of notice period, the
\nappellant continued to attend his duties for many months thereafter. By the
\nletter dated September 15, 2006 the respondent communicated to the appellant
\nthat his application for voluntary retirement under Service Regulation 12(b) has
\nnot been acceded to by the competent authority. Since the notice for voluntary
\nretirement by an employee who has not attained 55 years but has completed 20
\nyears of continuous service, under proviso appended to Regulation 12(b), is
\nsubject to approval by the competent authority and that approval was not
\ngranted, the voluntary retirement of the respondent never came into effect.”\n<\/p>\n
\t(b)In Union of India and others V. Sayed Muzaffar Mir AIR<\/a> 1995 Supreme
\nCourt 176 at page 177 in paragraph 4 and 5, the Hon’ble Supreme Court has
\nobserved and held hereunder:\n<\/p>\n
“4.There are two answers to this submission. The first is that both the
\nprovisions relied upon by the learned counsel would require, according to us,
\npassing of appropriate order, when the government servant is under suspension
\n(as was the respondent), either of withholding permission to retire or retaining
\nof the incumbent in service. It is an admitted fact that no such order had been
\npassed in the present case. So, despite the right given to the
\nappropriate\/competent authority in this regard, the same is of no avail in the
\npresent case as the right had not come to be exercised. We do not know the
\nreason(s) thereof. May be, for some reason the authority concerned thought that
\nit would be better to see off the respondent by allowing him to retire.\n<\/p>\n
5.The second aspect of the matter is that it has been held by a three-Judge
\nBench of this Court in Dinesh Chandra Sangma v. State of Assam,<\/a> (1977) 4 SCC
\n441: (AIR 1978 SC 17),  which has dealt with a pari materia provision finding
\nplace in Rule 56(c) of the Fundamental Rules, that where the government servant
\nseeks premature retirement the same does not require any acceptance and comes
\ninto effect on the completion of the notice period. This decision was followed
\nby another three Judge Bench in B.J. Shelat v. State of Gujarat,<\/a> (1978) 2 SCC
\n202: (AIR 1978 SC 1109).”\n<\/p>\n
\t(c)In K.L.E. Society V. Dr.R.R. Patil and Another<\/a> (2002) 5 SCC 278 at
\nspecial page 283 to 285 in paragraph 16 to 18 and in para 20 and 21, the Hon’ble
\nSupreme Court has observed hereunder:\n<\/p>\n
“16.When the respondent No.1 submitted the second notice on 5.7.1995 no
\nreference was made to the earlier notice dated 2.12.1994. Besides there could
\nnot have been two applications for voluntary retirement. By accepting the second
\napplication on 5.7.95 the first application must in any event be treated as
\nhaving been superseded. The respondent No. 1’s letter dated 5.7.1995 was in fact
\na fresh application for voluntary retirement. Here too the respondent No. 1 did
\nnot specify the intended date of retirement. He only requested that he may be
\npermitted to take retirement ‘at the earliest’. The non specification of a date
\ncoupled with the fact that no request was made for curtailment of the notice
\nperiod, meant that the date of his voluntary retirement could only be on or
\nafter 5.10.95. During this period, the respondent No. 1 sent the letter dated
\n19.7.95 requesting that the notice of voluntary retirement dated 5.7.95 be kept
\nin abeyance. This was not a letter for withdrawing the notice. It was a request
\nthat the notice may be kept in abeyance in the sense not considered immediately
\nthus postponing the intended date of retirement. Assuming that the letter dated
\n19.7.95 was a notice of withdrawal and that the appellant was right in
\ndiscarding it, nevertheless the appellant was bound to allow the notice period
\nof three months calculated from 5.7.95 to expire before issuing an order
\naccepting the notice. Admittedly the appellant did not do that. They issued the
\nimpugned order within 15 days.\n<\/p>\n
17.The appellant purported to treat the notice dated 5.7.95 as a continuation of
\nthe first notice dated 2.12.94 for the purpose of calculating the notice period.
\nThey could not have done that for the reasons stated earlier. The appellant not
\nhaving waited for three months from 5.7.95, the order accepting the respondent
\nNo. 1’s request for voluntary retirement was premature and amounted to
\nunilateral curtailment of the notice period by the appellant contrary to the
\nScheme and more particularly Rule 50 (5) (c) thereof. The impugned order cannot
\nbut be held to be bad.\n<\/p>\n
18.There is a further reason for setting aside the impugned order. Under Rule 50
\n(5), as far as the respondent No. 1 was concerned, the appointing authority was
\nthe appellant and the approving authority was the State Government. The order of
\nacceptance could have been issued by the appellant on 20.7.95 only after
\nobtaining the “specific prior approval” of the State Government under clause (m)
\nand after verification of the respondent No. 1’s eligibility in consultation
\nwith the Accountant General under clause (m). Neither of these pre- conditions
\nhad been fulfilled. The purported approval of the State Government was much
\nafter the impugned order of acceptance was passed. The verification with the
\nAccountant General has not been done at all.\n<\/p>\n
20.Ordinarily, having reached this conclusion, we would have merely dismissed
\nthe appeal, but having regard to the submissions made by counsel on either
\nsides, we feel that it would be more appropriate to mould the relief granted by
\nthe High Court to the respondent. The respondent himself had decided to retire
\nfor compelling personal reasons. In fact, he had been on long leave prior to the
\nsecond notice asking for permission to voluntarily retire. He had agreed to
\ncontinue for the time being at the instance of others in the interest of the
\ninstitution. The appellant has in the meantime replaced the respondent with
\nanother Principal who has been serving for the last 7 years apparently to the
\nsatisfaction of the appellant and without any complaint. It is also not the
\nrespondent’s case that the present incumbent is incompetent or has not
\ndischarged his duties during this period with dedication and commitment. On the
\nother hand the replacement of the present incumbent by the respondent may, given
\nthe history of this litigation, create an atmosphere of discord and
\nconfrontation, which would not benefit the institution at all. It would, in the
\ncircumstances, be in the interest of all the protagonists to allow the present
\nincumbent to continue while compensating the respondent for the incorrect action
\ntaken by the appellant against him.\n<\/p>\n
21.We accordingly dismiss the appeal with the direction that the respondent will
\nnot be reinstated in service but be treated to have retired from service as
\nindicated in the order impugned before the Tribunal and the appellant shall pay
\nto the respondent a sum equivalent to three years’ salary as last drawn by the
\nrespondent as Principal of the College by way of compensation. Such payment
\nshall be made within eight weeks from today. The appellant will also pay the
\nrespondent the costs of this appeal assessed at Rs.5,000\/- ( Rs. Five thousand
\nonly).”\n<\/p>\n
\t(d) In Bank of India V. O.P.Swarankar AIR<\/a> 2003 Supreme Court 858 at page
\n859 & 860, the Hon’ble Supreme Court has observed and held as follows:
\n“The employees opting for Voluntary Retirement could withdraw their offer before
\nit was accepted by the Bank despite the contractual bar to withdrawal contained
\nin the Scheme.\n<\/p>\n
\tA proposal is made when one person signifies to another his willingness to
\ndo or abstain  from doing anything with a view to obtaining the assent of the
\nother to such act or abstinence (S.2(a)). Herein the Banks by reason of the
\nScheme or otherwise have not expressed their willingness to do or abstain from
\ndoing anything with a view to obtaining assent of the employees to such act. Not
\nonly the power of the Bank to accept or reject such application is absolutely
\ndiscretionary, it, could also amend or rescind the Scheme. The Scheme,
\ntherefore, cannot be said to be an offer which, on the acceptance by the
\nemployee, would fructify in a concluded contract. The Scheme having regard to
\nits provisions merely constitute an invitation to treat and not an offer. The
\nproposal of the employee when accepted by the Bank would constitute a promise
\nwithin the meaning of S.2(b) of the ACt. Only then the promise becomes an
\nenforceable contract. In the instant case, the Banks when floating the Scheme
\ndid not signify that on the employees assenting thereto a concluded contract
\nwould come inot being in terms whereof they would be permitted to retire
\nvoluntarily and get the benefits thereunder. Furthermore, in terms of the said
\nScheme no consideration passed so as to constitute an agreement. Once it is
\nfound that by giving their option under the Scheme, the employees did not derive
\nan enforceable right, the same in absence of any consideration would be void in
\nterms of S.2(g) of the Contract Act as opposed to S.2(h) of the Contract Act as
\nopposed to S.2(h) thereof. Furthermore, even by opting for the Scheme as floated
\nby the Banks, no consideration is passed far less amounting to reciprocal
\npromise. In the instant case, there was even no reasonable certainty that the
\nScheme would be acted upon. Furthermore terms and conditions thereof could be
\namended and even the Scheme itself could be rescinded. The Voluntary Retirement
\nScheme was, therefore, not a proposal or an offer but merely an invitation to
\ntreat and the applications filed by the employees constituted ‘offer.’<\/p>\n
\tOnce the application filed by the employees is held to be an ‘offer’; S.5
\nin absence of any other independent binding contract or statute or statutory
\nrules to the contrary would come into play and the offer made by employees could
\nbe revoked any time before it was accepted.”\n<\/p>\n
\t(e) In Union of India and another V. Wing Commander T.Parthasarathy (2001)
\n1 Supreme Court Cases 158 and 159, the Hon’ble Supreme Court has laid down as
\nfollows:\n<\/p>\n
“A request for premature retirement which required the acceptance of the
\ncompetent or appropriate authority will not be complete till accepted by such
\ncompetent authority and the request could definitely be withdrawn before it
\nbecame so complete. It is all the more so in a case where the request for
\npremature retirement was made to take effect from a future date as in this
\ncase.”\n<\/p>\n
\t(f)In P.Lal V. Union of India and others<\/a> (2003) 3 Supreme Court Cases 393
\nat page 395 & 396, the Hon’ble Supreme Court has inter alia observed as follows:
\n“An employee can withdraw his application for voluntary retirement before the
\neffective date. The effective date would necessarily be the date on which the
\nretirement takes effect. The request, which Respondent No. 3 had made by his
\nletter dated 5th May, 1993, was to be allowed to retire voluntarily with
\nimmediate effect. He had also deposited Rs. 30,870\/- in lieu of three months’
\nnotice. Thus so far as Respondent No. 3 was concerned the effective date was 5th
\nMay, 1993. Of course Rule 16(2A) of the All India Services (Death-cum-
\nRetirement) Rules, 1958 provides that a notice of retirement had to be accepted
\nby the Government of India. In this case, the Government of India accepted the
\nrequest on 2nd March, 1995 and permitted Respondent No. 3 to retire with effect
\nfrom May 1993. The moment Government of India accepted the notice the retirement
\nbecame effective. The relationship of master and servant came to an end. We are
\nunable to accept the submission that the relationship of master and servant did
\nnot terminate till the acceptance was communicated to Respondent No. 3. It must
\nbe remembered that Rules 16(2) and 16(2A) enable a member to retire from service
\non giving the required notice. Once such a notice is given it merely has to be
\naccepted by the Government of India. The moment it is accepted the retirement
\nwould become effective. If any other view is taken it would lead to absurd
\nresults. Such a view would mean that even though a member had given a notice for
\nvoluntary retirement stopped attending office and\/or gone away abroad and\/or
\ntaken up some other employment after a number of years of absence the member
\ncould claim to come back into service because the Government, for some
\nunforeseen reasons, had not communicated its acceptance. Taken to its absurd
\nlength such a member could after superannuation claim that, as the services were
\nnot terminated, he was entitled to pension and gratuity on the basis that he had
\ncontinued in service. The requirement of communication of acceptance would only
\narise in cases where, even after giving of a notice of voluntary retirement the
\nmember continues to work\/perform his duties. In such cases the member would need
\nto know from what date he can stop attending office. In cases where the member
\nhas by his own conduct abandoned service the severance of the relationship of
\nmaster and servant takes place immediately on acceptance of notice. We are
\nunable to accept the submission that the severance of relationship of master and
\nservant cannot take effect until there is an Order by the President of India and
\nthe same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set
\nout hereinabove. All that it requires is acceptance by the Government of India
\nand not by the President of India. Admittedly the request for voluntary
\nretirement has been accepted by the Government of India on 2nd March, 1995. No
\nprovision or rule could be shown which requires such acceptance to be gazetted.
\nOn the contrary, as has been set out hereinabove, in its affidavit before the
\nPunjab & Haryana High Court, the Government of Punjab had categorically stated
\nthat there was no provision for gazetting such an order.”\n<\/p>\n
\t(g)In State of Haryana and others V. S.K.Singhal<\/a> (1999) 4 Supreme Court
\nCases 293 at page 294 & 295, it is observed and laid down as follows:
\n“Voluntary retirement in the present case was governed by Rule 5.23(B) of the
\nPunjab Civil Services Rules, Vol. II Clause (2) of this rule provided that “The
\nnotice of voluntary retirement … shall require aceptance by the appointing
\nauthority subject to Rule 2.2 of the Punjab CSR Vol.II.” Proviso to Rule 5.32
\n(B)(2) further laid down that “where the appointing authority does not refuse to
\ngrant the permission for retirement before the expiry of the (notice) period
\n…, the retirement shall become effective from the date of expiry of the said
\nperiod”. Rule 2.2 of the Civil Services Regulations, Vol. II [referred to in
\nRule 5.32(B)(2) provided that future good conduct was an implied condition for
\ngrant of pension.\n<\/p>\n
Held:\n<\/p>\n
     Rules applicable in various government departments provide for voluntary
\nretirement by giving notice (say for three months). Some rules are couched in
\nlanguage which results in automatic retirement on expiry of period specified in
\nemployee’s notice whereas in some rules, the language makes it clear that even
\non expiry of the period specified in notice, till such acceptance is
\ncommunicated; refusal of permission can also be communicated after notice period
\nand the employee continues to be in service. Cases like Dinesh Chandra Sangma,
\nB.J. Shelat and Sayed Mazaffar Mr, belong to former category where it is held
\nthat upon expiry of notice period, voluntary takes effect automatically as no
\norder of refusal is passed within the notice period. On the other hand, Suman
\nBehari Sharma case, belongs to second category.\n<\/p>\n
Dinesh Chandra Sangma V. State of Assam,<\/a> (1977) 4 SCC 441: 1978 SCC (L& S) 7;
\nB.J. Shelat V. State of Gujarat,<\/a> (1978) 2 SCC 202: 1978 SCC (L&S) 208; Union of
\nIndia V. Sayed Muzaffar Mir,<\/a> 1995 Supp (1) SCC 76: 1995 SCC (L&S) 256;
\nH.P.Horticultural Produce Marketing & Processing Corporation Limited V. Suman
\nBehari Sharma<\/a> (1996) 4 SCC 584 : 1996 SCC (L& S) 1056, considered,<\/p>\n
It is clear form Dinesh Chandra Sangma, B.J. Shelat and  Sayed Muzaffar Mir
\ncases that if the right to voluntarily retirement is conferred in absolute terms
\nas in Dinesh Chandra Sangma’s case by the relevant rules and there is no
\nprovision in Rules to withhold permission in certain contingencies the voluntary
\nretirement comes into effect suthomatically on the expiry of the period
\nspecified in the notice. If, however, as in B.J.Shelat’s case and as in Sayed
\nMuzaffar Mir’s case, the concerned authority is empowered to withhold permission
\nto retire if certain conditions exist, viz. in case the employee is under
\nsuspension or in case a departmental inquiry is pending or is contemplated, the
\nmere pendency of the suspension or departmental inquiry or its contemplation
\ndoes not result in the notice of voluntary retirement not coming into effect on
\nexpiry of the period specified. What is further needed is that the concerned
\nauthority must pass a positive order withholding permission to retire and must
\nalso communicate the same to the employee as stated in B.J.Shelat’s case and in
\nSayed Muzaffar Mir’s case before the expiry of the notice period. Consequently,
\nthere is no requirement of an order of acceptance of the notice to be
\ncommunicated to the employee nor can it be said that non-communication of
\nacceptance should be treated as amounting to withholding of permission.\n<\/p>\n
Further, in paragraph 18 it is observed and held as follows:
\n“Rule 5.32(B)(1),in the present case, contemplates a ‘notice to retire’ and not
\na request seeding permission to retire. The further “request” contemplated by
\nthe sub-section is only for seeding exemption from the 3 months period. The
\nproviso to sub-clause (2) makes a positive provision that “where the appointing
\nauthority does not refuse to grant the permission for retirement before the
\nexpiry of the period specified in sub-rule (1), the retirement shall become
\neffective from the date of expiry of the period specified in sub-rule (1), the
\nretirement shall become effective from the date of expiry of the said period.
\nThe case before us stands on a stronger footing than Dinesh Chandra Sangma’s
\ncase so far as the employee is concerned. As already stated Rule 2.2 of Punjab
\nCivil Service Rules Vol.II only deals with a situation of withholding or
\nwithdrawing pension to a person who has already retired.”\n<\/p>\n
\t(h)In H.P.M.C. V. Shri Suman Behari Sharma AIR<\/a> 1996 Supreme Court 4353,
\nthe Hon’ble Supreme Court has held as follows:\n<\/p>\n
“The Bye-law 3.8 of H.P. Horticultural Produce Marketing and processing
\nCorporation Ltd Employees Service Bye-laws inter alia provides for voluntary
\nretirement from service of corporation on completion of 25 years service or on
\nattaining the age of 50 years whichever is earlier. The employee, however, has a
\nright to make a request in that behalf and his request would become effective
\nonly if he is ‘permitted’ to retire. The words “may be .. permitted at his
\nrequest” clearly indicate that the said clause does not confer on the employee a
\nright to retire on completion of either 25 years service or on attaining the age
\nof 50 years. It confers on the employee a right to make a request to permit him
\nto retire. Obviously, if request is not accepted and permission is not granted
\nthe employee will not be able to retire as desired by him. The words “seek
\nretirement” in para 5 thereof indicate that the right which is conferred by it
\nis not the right to retire but a right to ask for retirement. The word “seek”
\nimplies a request by the employee and corresponding acceptance or permission by
\ncorporation. Therefore, there cannot be automatic retirement or snapping of
\nservice relationship on expiry of three months period.”\n<\/p>\n
\t(i)In Sarat Kumar Mohanty V. State of Orrisa and others (Full Bench)
\n(Orissa High Court)<\/a> 1995 (1) Service Law Reporter 314 at page 318 & 319 in
\nparagraph 12 to 14 it is held thus:\n<\/p>\n
“12.The legal submission advanced  by Shri Das has merit in it because if a
\ndisciplinary proceeding against  a judicial officer be pending, which can be
\ndrawn only by the High Court, the question whether the offer of voluntary
\nretirement should be withheld or not,has to be decided in consultation with,or
\non recommendation of, the High Court for the simple reason that whether such an
\nofficer should continue in service and remain under the control of the High
\nCourt, which control would be lost on voluntary retirement, has to be basically
\ndecided by the High Court. Now, if in such a case, recommendation of the High
\nCourt is necessary, which as stated by the Constitution Bench in paragraph 40 of
\nDikshitulu, though “advisory”, in substance and effect, is well high
\nperemptory,” the same result has to be in so far as withdrawal or rescission of
\nvoluntary retirement is concerned, in view of what has been stated in Section 21
\nof the General Clauses Act, according to which, for rescinding a notification,
\nthe same procedure must be followed which was done while issuing the
\nnotification inasmuch as this section requires that such a power must be
\nexercised “in like manner and subject to the like sanction and conditions, if
\nany,”, which were existing when the notification was issued.\n<\/p>\n
13.In this connection  a submission has, however, been made by the learned
\nGovernment Advocate that rescission of such an order cannot be demanded as a
\nmatter of right.  We find force in this submission as it was stated by the apex
\nCourt in paragraph 7 of Jai Ram V.Union of India, AIR 1954 SC 584, as below:
\n\t“……… It may be conceded that it is open to a servant, who had
\nexpressed a desire to retire from service and applied to his superior officer to
\ngive him the requisite permission, to change his mind subsequently and ask for
\ncancellation of the permission thus obtained, but he can be allowed to do so, so
\nlong as he continues in service and not after it has terminated.”
\n\tTo the same effect is the observation in paragraph 5 of Raj Kumar V. Union
\nof India, AIR 1969 SC 180 : [1968 SLR 730 (SC)]:\n<\/p>\n
“… Termination of employment by order passed by the Government does not become
\neffective until the order is intimated to the employee. But when a public
\nservant has invited by his letter of resignation determination of his
\nemployment, his services normally stand terminated from the date on which the
\nletter of resignation is accepted by the appropriate authority, and in the
\nabsence of any law or rule governing the conditions of his service to the
\ncontrary, it will not be open to the public servant to withdraw his resignation
\nafter it is accepted by the appropriate authority. Till the resignation, is
\naccepted by the appropriate authority in consonance with the rules governing the
\nacceptance, the public servant concerned has locus poenitentiae but not
\nthereafter.”\n<\/p>\n
\tWe may finally refer to the well-known case of Union of India V. Gopal
\nChandra Misra (Commonly<\/a> known as Satish Chandra’s case), AIR 1978 SC 694 : [1974
\n(1) SLR 521 (SC)], in which Sarkaria, J., speaking for the majority, made the
\nfollowing observation in paragraph 51 of the judgment :-
\n“…. It will bear repetition that the general principle is that in the absence
\nof a legal, contractual or constitutional bar, a ‘prospective’ resignation can
\nbe withdrawn at any time before it becomes effective, and it becomes effective
\nwhen it operates to terminate the employment or the office- tenure of the
\nresignor. This general rule is equally appli- cable to Government servants and
\nconstitutional functionaries. In the case of a Government servant\/or functionary
\nwho cannot,-under the conditions of his service\/or office, by his own unilateral
\nact of tendering resignation, give up his service\/or office, normally, the
\ntender of resignation becomes effective and his service\/or office-tenure
\nterminated, when it is accepted by the competent authority. In the case of a
\nJudge of a High Court, who is a constitutional functionary and under Proviso (a)
\nto Article 217(1) has a unilateral right, or privilege to resign his office, his
\nresignation becomes effective and tenure terminated on the date from which he,
\nof his own volition, chooses to quit office……”\n<\/p>\n
\t14.The above would show that a person like the one at hand had not been
\nconferred with a right to ask for rescission or withdrawl of his order of
\nvoluntary retirement, as there is no law or rule permitting it.”\n<\/p>\n
\t(j)In S.Jagadeesan V. Ayya Nadar Janaki Ammal College and<\/a> another AIR 1984
\nSupreme Court 1512, the Hon’ble Supreme Court in paragraph 3 has held as
\nfollows:\n<\/p>\n
“Without entering into the controversy as to the meaning to be given to the
\nwords “otherwise terminated” in sub-section (1) of Section 19 of the Tamil Nadu
\nPrivate Colleges (Regulation) Act, 1976, we set aside the judgment of the High
\nCourt and dismiss the writ petition filed by respondent No.1 with a direction
\nthat respondent No.1 may prefer an appeal to the prescribed authority under
\nSection 37 of the Act. if so advised. If such an appeal is preferred within 30
\ndays of the passing of this order, the prescribed authority shall entertain and
\ndecide the appeal on merits, without any objection as to limitation.”\n<\/p>\n
\t(k)In Ayya Nadar Janaki Ammal College represented by its Secretary,
\nSivakasi V. Pandian and others<\/a> 1996-II-MLJ-345, it is held as follows:
\n“Sec. 19 of the Act applies to all teachers and other persons employed in any
\nprivate college. They may be permanent  teachers or permanent employees or
\nprobationary teachers or employees . Sec. 19 prohibits that no such teachers or
\nemployees shall be dismissed removed or reduced in rank or their services shall
\notherwise be terminated except without the prior approval of the competent
\nauthority. On a perusal of Sec. 19 it is clear that except without the prior
\napproval of the competent authority, there shall not be any removal, dismissal,
\nor reduction in rank of any teachers or other persons employed in a private
\ncollege or termination of their appointment. In other words, the prior approval
\nof the competent authority is a sine qua non for the orders contemplated under
\nSec. 19 of the Act to take legal effect.”\n<\/p>\n
\t42.It is relevant for this Court to make a significant mention that the
\nGovernment of Tamil Nadu in G.O.Ms.No.43, Finance (Pension) Department, dated
\n22.01.1991 has stated as follows:\n<\/p>\n
“In partial modification of the orders issued in the Government order and
\nGovernment letter first and second read above, the Government direct that –\n<\/p>\n
\ti]Death-cum-Retirement Gratuity and family pension may be granted to the
\nfamily of missing employee after two years instead of one year.
\n\tii]Family security Fund \/ Group Insurance scheme amount shall be withheld
\ntill the disappearance of the employee is definitely established in terms of the
\nIndian Evidence Act etc.”\n<\/p>\n
\t43.In the copy of the Government Letter No.114392\/Pension\/87-1 dated
\n04.04.1988, from Joint Secretary to Government, Finance [Pension] Department,
\nFort St. George, Madras-9 the points are clarified as hereunder:\n<\/p>\n
Sl.No.\t\tPoints raised\t\t\tClarifications issued<\/p>\n
1.\tWhether the Counter signature of the\t\tIt is enough if the police
\n\tPolice report of the Superintendent of\t\treport given by the
\n\tPolice\/Commissioner of Police or a\t\tStation Officer in charge is
\n\treport from the Superintendent of\t\taccepted.\n<\/p>\n
\tpolice\/Commissioner of Police is to be
\n\tinsisted.\n<\/p>\n
2.\tWhether legal heirship certificate is\t\tLegal heirship Certificate
\n\tto be insisted\t\t\t\t\tis necessary<\/p>\n
3.\tThe format in which Indemnity bond\t\tNecessary indemnity bond
\n\tis to be given by the nominee \/ \t\t\tas prescribed in Form 25
\n\tdependents of the employees\t\t\tof Tamil Nadu Pension
\n\t\t\t\t\t\tRules 1978 with suitable
\n\t\t\t\t\t\t\t\tmodifications wherever
\n\t\t\t\t\t\t\t\tnecessary may be
\n\t\t\t\t\t\tadopted.\n<\/p>\n
\t44.In G.O.Ms.No.690, Finance [Pension] Department dated 24.10.1981 of the
\nGovernment of Tamil Nadu in paragraph 3 has observed hereunder:
\n“3.After careful examination of the various clarifications sought for in this
\nregard, and as the very object of the Family Benefit Fund Scheme the Revised
\nGroup Insurance Scheme is to help the bereaved family members of the deceased
\nemployee who were dependent on the deceased for support, it has been decided
\nthat the rules relating to the making of nomination for the lumpsum grant may be
\nmodified making of more clear and specific.  In partial modification of the
\norders issued in G.O. cited and the instructions issued in the Memorandum second
\ncited, the Government pass the following further orders:-\n<\/p>\n
\t(i)The nomination shall be made strictly in the order of members indicated
\nin para 1 above;\n<\/p>\n
\t(ii)Major sons [who were not dependent on the deceased for support]; Major
\nbrothers; Married daughters\/sisters and other relative will not be eligible for
\nthe lumpsum grant under the scheme;\n<\/p>\n
\t(iii)Employees who have no family shall be exempted from joining the
\nFamily Benefit Fund\/Group Insurance Scheme as is allowed in the case of
\nFathers\/Nuns in the Educational Institutions;\n<\/p>\n
\t(iv)If none of the nominee\/persons indicated in para1 above are alive,
\nthen the lumpsum grant under the scheme shall lapse to the Government
\n\/Organizations; and\n<\/p>\n
\t(v)n case of no nomination, the lumpsum grant shall be paid to the
\neligible members in equal shares.\n<\/p>\n
and further directed all employees governed by the scheme may be permitted to
\nfile a nomination afresh, within 3 months from the date of this order.”\n<\/p>\n
\t45.The Government of Tamil Nadu in G.O.Ms.No.478, Finance [Pension]
\nDepartment, dated 04.06.1987,  has, inter alia, issued directions and orders as
\nspecified hereunder:\n<\/p>\n
\t“3.Government have carefully examined the decision of the Government of
\nIndia and have decided to extend similar benefits to the Tamil Nadu Government
\nServants including the staff of local bodies and aided educational institutions.
\nThey accordingly direct that<\/p>\n
\t(i)When an employee disappears leaving his family, the family can be paid
\nin the first instance the amount of salary due; leave encashment due and the
\namount of General Provident Fund, having regard to the nomination made by the
\nemployee;\n<\/p>\n
\t(ii)After the elapse of a pension of one year, other benefits both Death-
\ncum-Retirement Gratuity\/Family Pension may also be granted to the family.\n<\/p>\n
\t4.The above benefits may be sanctioned by the administrative department of
\nSecretariat after observing the following formalities:-\n<\/p>\n
\ti)The family must lodge a report with the concerned police station and
\nobtain a report that the employee has not been traced after all efforts had been
\nmade by the Police.\n<\/p>\n
\tii)An Indemnity Bond should be taken from the nominee\/dependent of the
\nemployees that all payments will be adjusted against the payments due to the
\nemployee in case he appears on the scene and makes any claim.\n<\/p>\n
\t5.The Government also direct that in case the disbursement of Death-cum-
\nRetirement Gratuity is not effect within 3 months from the date of application
\nthe interest shall be paid at the rates applicable and responsibility for the
\ndelay fixed.\n<\/p>\n
\t6.The orders shall take effect from the date of this order.  However, all
\nthe pending cases can  be settled with reference to the above orders.\n<\/p>\n
\t7.The orders will also apply to the staff of local bodies and aided
\nteaching institutions.”\n<\/p>\n
\t46.The Letter of the Government of Tamil Nadu Finance (Pension) Department
\nNo.66491\/Pension\/94-7, dated 27.03.1996 has issued the amendment to
\nG.O.Ms.No.806 Finance [Pension] dated 21.09.1993, as regards the filing of
\nnomination relating to Tamil Nadu Government Servants Family Security Fund\/Group
\nInsurance Scheme.\n<\/p>\n
\t47.Pertinently, this Court refers to G.O.Ms.No.540 of Government of Tamil
\nNadu, Finance [Pension] Department, dated 05.07.1995 which refers to
\nintroduction of new Rule 49-A (after rule 49) of Tamil Nadu Pension Rules, 1978,
\nwhich enjoins as follows:\n<\/p>\n
“49-A. Benefits to the family of a disappearing Government Servant:-
\n\tWhen a Government servant disappears leaving his family, the family of
\nsuch Government servant shall be entitled immediately for the payment of dues of
\nsalary, leave encashment, General Provident Fund and Special Family pension-cum-
\nGratuity and after lapse of a period of one year of such disappearance for the
\npayment of dues of Death-cum-retirement Gratuity and Family Pension in
\naccordance with the nomination made by such Government servant, subject to the
\nfollowing conditions, namely –\n<\/p>\n
\t(i)a complaint must have been lodged with the Police Station concerned and
\na report obtained that the Government servant has not been traced despite all
\nefforts made by the police; and<\/p>\n
\t(ii)An Indemnity Bond must have been executed by the nominee or dependents
\nof such Government servant to the effect that all payments shall be adjusted
\nagainst the payment due to the such Government servant in case he appears later
\nand makes any claim.”\n<\/p>\n
\t48.Besides the above, this Court aptly points out the Letter No.21396-
\nA\/Pension\/91-2 of Government of Tamil Nadu,  Finance [Pension] Department, dated
\n09.04.1991 on the subject of grant of family pension and gratuity to the
\nfamilies, etc. of employees\/ pensioners of Government, aided Educational
\nInstitutions and local bodies who disappear suddenly and whose whereabouts are
\nnot known, in and by which further instructions regarding the formalities to be
\nobserved, regulation of payment of family pension, gratuity etc. have been
\nissued and the same runs as follows:\n<\/p>\n
\t“(ii)The benefits to be sanctioned to the family of the missing employee
\nwill be based on and regulated by the emoluments drawn by him\/her and the
\nrules\/orders applicable to him\/her as on the last date he\/she was on duty
\nincluding authorised periods of leave.  Family pension at normal\/enhanced rates
\nas may be applicable to the individual cases, will be payable to the families of
\nmissing employees. Family pension where sanctioned at Pre.1-6-88 rates to be
\nrevised and consolidated with effect from 1.6.88 in terms of G.O.Ms.No.810,
\nFinance [PC] dated 09.08.1999 as amended from time to time.\n<\/p>\n
\t(iii)In the case of missing pensioners, the family pension at the rates
\nindicated in the Pension Pay Order will be payable and may be authorised by the
\nHead of the office concerned.  Where the Pension Pay order does not contain this
\ninformation, the Head of Office will take necessary action to sanction the
\nfamily pension as due, as provided in para 1[i] and [ii] above.\n<\/p>\n
\t(iv)Death gratuity will also be payable to the families, but not exceeding
\nthe amount which would have been payable as Retirement gratuity if the person
\nhad retired.  The difference between the retirement Gratuity and death gratuity
\nshall be subsequently payable after the death is conclusively established or on
\nthe expiry of seven years period from the date of missing.\n<\/p>\n
\t(v)The indemnity bond to be obtained for this purpose from the family
\nmembers, etc. will be in the formats enclosed with this letter.  Separate
\nformats for use in the case of missing employees and missing pensioners have
\nbeen prescribed.”\n<\/p>\n
\t49.In letter No.75868\/Pension\/87-1 dated 21.07.1987, the Government of
\nTamil Nadu, Finance [Pension] Department, Fort St. George, Madras-9 have issued
\nthe following amendment ‘For the word ‘Pension’ occurring in para 3[ii] of
\nG.O.Ms.No.478, Finance [Pension] dated 04.06.1987 read as ‘period’.\n<\/p>\n
\t50.Be that as it may, Section 107 of the Indian Evidence Act, 1872 speaks
\nof ‘burden of proving the death of a person known to have been alive within 30
\nyears.’ A human life shown to be in existence, at a certain point of time which
\nas per Section 107 of the Indian Evidence Act should to be a point within 30
\nyears calculated backwards from the date when the question arises, is presumed
\nto continue to be living. However, 107 of the Act is subject to a provision of
\nSection 108. In fact, Section 107 of the Indian Evidence Act as the effect of
\nshifting the burden of establishing that the individual is dead on him who
\naffirms the fact. However, Section 108 as the effect of shifting the burden of
\nproof back on the one who asserts the fact of that person being alive. Section
\n108 presumption is a limited one restricted to presume the factum of death of an
\nindividual whose life or death is in issue.\n<\/p>\n
\t51.The presumption under Section 108 of the Indian Evidence Act  relates
\nto the factum of death at the time when the question is raised and not at any
\nparticular antecedent time. There is no presumption in law as regards the cause
\nand circumstance of the death as per decision Gnanamuth V. Anthoni AIR 1960
\nMadras 430. As per Section 108, the presumption of death can be made only if it
\nis established at the time when the presumption is sought to be raised that the
\nindividual concerned was not heard of for 7 years by those who would naturally
\nhave heard of him, if he had been alive, as per decision Ram Rati Kauer V.
\nDwarka Prasad AIR 1967 SC at page 1134. Indeed, the presumption of civil death
\nof a fictional one as per Section 108 of the Indian Evidence Act tantamounts to
\nphysical death in law for enabling the widow a right to file a suit as per
\ndecision AIR 1967 Orissa at page 70.\n<\/p>\n
\t52.As far as the present case is concerned, the Petitioner’s husband
\nR.Ramaraj on 17.08.2001 was relieved from service on Voluntary Retirement by the
\n3rd Respondent\/College by paying his 3 months salary in lieu of 3 months notice
\nof course with a specific observation that the relieving order is subject to the
\napproval of 1st Respondent\/Director of Collegiate Education. The Petitioner’s
\nhusband’s three months salary of Rs.16,470\/- challan file was sent by the 3rd
\nRespondent\/College on 11.01.2001 requesting the 2nd Respondent to approving the
\nvoluntary retirement of Petitioner’s husband. The 2nd Respondent had rejected
\nthe 3rd Respondent’s action in accepting 3 months notice salary as per
\nRc.No.7413\/D2\/98 dated 12.12.2001 mentioning the clarification issued by the 1st
\nRespondent.\n<\/p>\n
\t52.It is to be pointed out that when the Petitioner’s husband had put in
\nalready 25 years of completed service and moreover, when the 3rd
\nRespondent\/College Committee on humanitarian grounds on 14.08.2001 had accepted
\nthe 3 months salary of Petitioner’s husband in lieu of 3 months notice for
\nvoluntary retirement and also when the Petitioner’s husband was relieved on
\n11.02.1995 by the 3rd Respondent, this Court is of the considered view that it
\nis not open to the 3rd Respondent\/College at a later point of time that too
\nbased on the letter of the 1st Respondent dated 13.08.2002 rejecting the
\nrecommendation of the college to permit the Petitioner’s husband to go on
\nvoluntary retirement retrospectively without taking necessary action against him
\nas per G.O.Ms.153, P & AR (FR III) dated 08.08.2000 to take action by means of
\nresolution of the College Committee dated 27.03.2006 to dismiss the Petitioner’s
\nhusband with effect from 11.02.1995.\n<\/p>\n
\t54.As a matter of fact, the 3rd Respondent\/College ought to have first
\ntaken action against the Petitioner’s husband for his unauthorised absence for
\nthe period from 21.1.95 as per G.O.Ms.No.153, P & AR (FR III) dated 08.08.2000,
\nwell before permitting him to retire voluntarily on humanitarian grounds. But in
\nthe instant case on hand, the 3rd Respondent\/College had not resorted to such a
\ncourse of action. In law, the option is given to an employee to go for voluntary
\nretirement. The 3rd Respondent\/College through its College Committee by means of
\nresolution on 14.08.2001 has accepted the request of Petitioner’s husband to go
\non VRS and further has authorised the College Secretary to relieve her husband
\nfrom service on voluntary retirement by receiving 3 months salary in lieu of 3
\nmonths notice on 10.02.1995. Indeed, when the Petitioner’s husband’s voluntary
\nretirement was accepted by the 3rd Respondent\/College\/Employer, then, it is not
\nopen to the 1st Respondent or the 2nd Respondent, as the case may be, to
\nwithhold or recession of the voluntary retirement of the Petitioner’s husband by
\nplacing reliance on the tenure of G.O.Ms.No.153, P & AR (FR III) dated
\n08.08.2000.\n<\/p>\n
\t55.When the voluntary retirement of the Petitioner’s husband was accepted
\nby the 3rd Respondent\/College by means of the College resolution dated
\n14.08.2001 no useful purpose would be served in directing the 3rd Respondent to
\ntake disciplinary action as per G.O.Ms.No.153 P & AR (FR III) dated 08.08.2000
\nand the same will be an otiose one.\n<\/p>\n
\t56.Since  the 3rd Respondent\/College accepted the voluntary retirement of
\nthe Petitioner’s husband, the dismissal action of the 3rd Respondent in
\ndismissing the Petitioner’s husband at a later point of time by means of a
\ncommunication of the 1st Respondent are all of no avail and they are only non
\nest in the eye of law, as opined by this Court.\n<\/p>\n
\t57.In law, the proposal of an Employee (voluntary retirement) when
\naccepted by an Employer an enforceable contract is concluded, as opined by this
\nCourt.\n<\/p>\n
\t58.In the present case, the acceptance of voluntary retirement of
\nPetitioner’s husband is the subject matter of approval.Taking disciplinary
\naction against Petitioner’s husband for his unauthorised absence is not the
\napproval that has been sought for by the 3rd Respondent\/College Authority, in
\nthe considered opinion of this Court. Moreover, the issue of initiation of
\ndisciplinary proceedings as per the G.O.Ms.No.153 P & AR (FR III) dated
\n08.08.2000 cannot be gone into in the subject matter of approval sought for by
\nthe 3rd Respondent\/College in so far as it relates to the Petitioner’s husband.\n<\/p>\n
\t59.In law, after acceptance of voluntary retirement by the 3rd
\nRespondent\/College on humanitarian grounds, there cannot be any initiation of
\ndisciplinary proceedings and any punishment being imposed on a person.\n<\/p>\n
\t60.Another important vital fact to be taken into account of this Court,
\nbased on the peculiar facts and circumstances of the case, is that the
\nPetitioner’s husband superannuation was on 10.05.2004 on completion of 58 years
\nin normal course. Suffice it for this Court to state that when the 3rd
\nRespondent\/College after permitting the Petitioner’s husband to be relieved as a
\nstaff member from the service of college on voluntary retirement by receiving
\nsalary in lieu of 3 months notice on 10.02.1995 by means of passing a College
\nCommittee resolution on 14.08.2001, it cannot approbate or reprobate or take a
\nTopsy-turvy stand based on the refusal of the 1st Respondent by means of a
\nletter dated 13.08.2002 rejecting the recommendation submitted by the 3rd
\nRespondent\/College in permitting the Petitioner’s husband to go on voluntary
\nretirement retrospectively etc. Therefore, the 3rd Respondent\/College
\nCommittee’s action by a resolution dated 27.03.2006 to dismiss the Petitioner’s
\nhusband with effect from 11.02.1995 the date on which her husband has absented
\nfrom duty is per se illegal and considering the Petitioner’s husband earlier
\nmental illness and later on again becoming insane and vanishing from the house
\nin the month of July and the same cannot stand a moment scrutiny in the eye of
\nlaw. Also, the 1st Respondent’s refusal to accord permission to the 3rd
\nRespondent’s College in permitting Petitioner’s husband to go on voluntary
\nretirement retrospectively by means of a communication dated 13.08.2002 stating
\nthat only after taking disciplinary proceedings against the Petitioner’s husband
\nhis case can be considered for voluntary retirement is equally an
\ninvalid,illegal, unjust and unfair order. That apart, the reason assigned by the
\n1st Respondent in the said letter by citing G.O.Ms.No.153 dated 08.08.2000 for
\nnot permitting the Petitioner’s husband to go on voluntary retirement is clearly
\nunsustainable in the eye of law because the said communication does not refer to
\nexpressly or impliedly the factum of the 3rd Respondent College granting
\npermission to the Petitioner’s husband to go on voluntary retirement as per
\nresolution dated 14.08.2001. Also, in the said letter, there is a reference to
\nthe G.O.Ms.No.153 P & AR (FR III) dated 08.08.2000 in and by which disciplinary
\nproceedings will have to be initiated by the 3rd Respondent\/College in regard to
\nthe Petitioner’s husband’s long unauthorised absence is not based on factual
\nground realities of the present case which float on the surface.\n<\/p>\n
\t61.In the result, the Writ Petition is allowed, leaving the parties to
\nbear their own costs. Accordingly, the impugned order of the 3rd
\nRespondent\/College dated 15.09.2006 is set aside. The 3rd Respondent \/College is
\ndirected to pay the arrears of Salary, Leave Encashment, G.P.F. amount, Special
\nProvident Fund, D.C.R.G. Fund, Family Benefit Fund as per rules relating to the
\nPetitioner’s husband to the Petitioner by scrupulously following the Government
\nOrders, Letters\/Circulars as envisaged by law. Inasmuch as the Petitioner’s
\nhusband has been permitted by the 3rd Respondent to proceed on voluntary
\nretirement as per College Committee’s Resolution dated 14.08.2001, it is open to
\nthe 3rd Respondent\/College to treat the Petitioner’s husband’s long unauthorised
\nabsence either as Leave on Loss of pay or without pay, as it deems fit and
\nproper, in the manner known to law. If situation warrants the Petitioner is to
\nexecute an indemnity bond as specified in Government Letter No.21396-A\/Pension
\n\/92-2 dated 09.04.1991.\n<\/p>\n
Sgl<\/p>\n
To<\/p>\n
1.The Director of Collegiate Education,
\n   Chennai-6.\n<\/p>\n
2.The Joint Director of Collegiate Education,
\n   Madurai – 625 020.\n<\/p>\n
3.The Secretary,
\n   Devanagar Arts College,
\n   Arupukottai – 626 101.\n<\/p>\n
4.The Secretary to Government of Tamil Nadu
\n   Department of Higher Education,
\n   Fort St. George, Chennai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court D.Renuga Devi vs S.K.Singhal [(1999) 4 Scc 293] on 12 May, 2011 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-233253","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nD.Renuga Devi vs S.K.Singhal [(1999) 4 Scc 293] on 12 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/d-renuga-devi-vs-s-k-singhal-1999-4-scc-293-on-12-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"D.Renuga Devi vs S.K.Singhal [(1999) 4 Scc 293] on 12 May, 2011 - 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