Central Administrative Tribunal - Delhi
Monday vs Union Of India Through Secretary on 26 May, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3391/2012 Monday, this the 26th day of May 2014 Honble Mr. A.K. Bhardwaj, Member (J) S B Sundaresan 5 Bojakara Cross ST Walajabad-631605 Kanchipuram-Distt. Tamil Nadu .. Applicant (By Advocate: Mr. Danish Zubair Khan) Versus 1. Union of India through Secretary Ministry of Defence Department of Defence Production Dte of Quality Assurance/Vehicle 53, H Block, New Delhi-11 2. Director General Quality Assurance Ministry of Defence Department of Defence Production & Supplies Nirman Bhavan DHQ, PO, New Delhi-11 3. The Addl. DGQA DGQA/Vehicles Dept. of Defence Production Nirman Bhavan DHQ, PO, New Delhi-11 4. Senior Quality Assurance Officer Senior Quality Assurance Estt. (VEHS) DGQA Complex LBS Marg, Vikhroli (W) Mumbai-400083 5. Officer-in-Charge Vehicle Quality Assurance Wing C/o CQAEE Complex Aundh Camp, Pune-410027 Maharashtra 6. The Controller Controllerate of Quality Assurance (Heavy Vehicles) Avadi, Madras-600054 ..Respondents (By Advocate: Mr. D S Mahendru) O R D E R (ORAL)
The applicant joined as Chargeman Grade II in the pay scale of Rs.1400-40-1800-EB-50-2300 on 1.12.1998 at CQA (HV), Avadi, Chennai-54. His appointment on the said post was confirmed on 17.8.1992 w.e.f. 1.4.1992. He got promotion as Chargeman Grade II in the year 1996 and was kept posted at CQA (HV) Avadi itself. On 23.2.2004, he was transferred to Directorate of Standardization, Avadi vide letter No. HQ, DGQA (Vehicle), New Delhi dated 11.2.2004 and was relieved from CQA (Heavy Vehicles) w.e.f. 28.2.2004. He joined at the place of his posting on 1.3.2004 and was subsequently promoted as Assistant Foreman on 20.4.2006. On such promotion, he was posted to the Senior Quality Assurance Establishment (Vehicles), Mumbai. Subsequently, the order of his transfer dated 20.4.2006 was modified and he was transferred to VQAW, Aundh Camp, Pune under the control of the Seniority Qualify Assurance Establishment (Vehicles), Mumbai. He joined at VQAW, Aundh Camp, Pune on 21.9.2006 and on 1.7.2009 he requested the Additional Director General of Quality Assurance to allow him to retire from service voluntary w.e.f. 1.10.2009. He also gave his undertaking in terms of the Voluntary Retirement Scheme (VRS) as per DGQA letter No. A/92163/POLICY/VR/DGQA/ADM.7B dated 27.8.2003. Vide fax dated 7.8.2009, the Administrative Officer, SQAO informed the officer-in-charge, VQAW that the applicant had not submitted the required undertaking for VRS and had not completed 20 years of service. Subsequently, in terms of the communication No. A/95040/V/VR/DGQA/ ADM-7B dated 13.10.2009, the Director General of Quality Assurance, DHQ PO, New Delhi informed the SQAO, SQAE (V), Mumbai that the applicant might be instructed to make a fresh application for voluntary retirement as per the policy laid down in the letter No. A/92163/ Policy/VR/DGQA/Adm-7B dated 27.8.2003. In the meantime, vide Daily Order Part II dated 5.11.2009, consequent upon the merger of the post of Assistant Foreman and Junior Technical Officer vide Government of India, Ministry of Defence O.M. No.A/92163/ Revision/ VI CPC/ DGQA/Adm-7B/2790/ D(QA)/2009 dated 22.10.2009, the applicant was re-designated as Junior Technical Officer w.e.f. 21.9.2006. When in terms of communications dated 6.11.2009 and 24.11.2009 (Annexures A-16 and A-17 respectively) the applicant was asked to give a fresh application for voluntary retirement and present himself in Vehicle Quality Assurance Wing, Aundh Camp, Pune, he sent a fresh request on 25.11.2009 (Annexure A-18) for voluntary retirement w.e.f. 26.2.2010. He also gave an undertaking in this regard. In the meantime, since after having proceeded on half pay leave for four days from 22.9.2009 to 25.9.2009 the applicant had failed to report for duty, he was given a notice dated 21.1.2010 (Annexure A-19) to show cause as to why the disciplinary proceedings under CCS (CCA) Rules, 1965 could not be initiated against him. The applicant sent yet another request dated 9.3.2010 requesting for his voluntary retirement w.e.f. 10.7.2010. He also made a representation to the Additional Director General of Quality Assurance (Vehicles), Nirman Bhawan, New Delhi on 10.7.2010 to pay his terminal benefits. In response, vide communication dated 30.9.2010, he was directed to report for duty forthwith. In response to this communication whereby the applicant was required to report for duty, he submitted his representation dated 13.10.2010 informing the Senior Quality Assurance Officer, Vikhroli (W), Mumbai that he was not willing to join the duty and his letter dated 9.3.2010 might be considered for voluntary retirement. However, the Senior Quality Assurance Estt. (Vehicles), Mumbai sent another letter dated 30.11.2010 directing the applicant to report for duty forthwith. Thereafter the applicant filed Original Application No.3983/2010 before this Tribunal praying therein:
(a) to declare that the Applicant had retired from service with effect from 10th July, 2010
(b) to direct the Respondent to give him all retirement benefits and pension with effect from the said date, and
(c) pass such other or further orders as this Honble tribunal may deem fit and proper.
2. The said Original Application was disposed of in terms of the Order dated 16.8.2011 with permission to the applicant to submit within a fortnight a detailed representation to respondent No.3, namely, the Additional DGQA, DGQA/Vehicles, Department of Defence Production, Nirman Bhawan, DHQ, PO, New Delhi espousing the grounds for regularization of the period of 150 days absence, i.e., from 26.9.2009 to 22.2.2010. A direction was also given to respondent No.3 to consider the representation in accordance with rules and take a decision thereon within a period of one month of receipt of his representation and thereafter decide the request of the applicant for voluntary retirement in accordance with rules by way of a reasoned and speaking order on the subject. Thus the respondents issued communication dated 22.12.2011 taking a view that the competent authority had decided the period of absence from duty for the period of 150 days from 26.9.2009 to 22.2.2010 as dies non without break/interruption in service and directed the applicant to apply for VRS under Rule 48-A afresh. For easy reference, the impugned order is reproduced hereinbelow:-
22.12.2011 Shri S.B. Sundaresan, J.T.O. S. Bojakara Cross Street, Walajabad 631 605 Kanchipuram Taluk & Dist.
Tamil Nadu Shri SB Sundaresan, JTO: Petition OA NO.3983/2010 Honble CAT (PB), New Delhi
1. Reference this HQ Order No.B/87339/SBS/ DGQA/ Veh-1 dated 28 Sep 2011 enclosing Memorandum of even number dated 28 Sep 2011 and your explanation dated 10 Oct 2011 thereon.
2. The Competent Authority after careful consideration and going through all the facts and circumstances of your case, has decided that your absence from duty for the period of 150 days from 26.09.2009 to 22.02.2010 be regularized by the grant of Dies-Non for the said period without break/interruption in service.
3. You are directed to apply for your voluntary retirement under Rule 48-A afresh as the three applications earlier submitted by you were pre-mature. You are further directed to enquire from your administrative authority viz. SQAE (V), Mumbai before submitting the notice of your voluntary retirement to the effect that you have the requisite qualifying service for consideration of your application for voluntary retirement by the competent authority. This requirement is to be met as per the Govt. of India Decision (ii) on Rule 48-A of CCS Pension Rules. It is further informed you that since you have no kind of leave available at your credit, the notice period shall not be insisted upon and your request for voluntary retirement shall be accepted by the competent authority.
4. You are, therefore, directed to send your notice for voluntary retirement to your administrative authority viz. SQAE (V), Mumbai. All further correspondence should be done with SQAE (V), Mumbai only as they are the holders of your service documents & records.
5. All the directions as passed by Honble CAT (PB), New Delhi vide their order dated 16 Aug 2011 on your petition OA No.3983/2010 have now been fully carried out with the issue of this letter.
3. Without commenting upon the said communication dated 22.12.2011, the applicant filed the present Original Application to declare him as retired from service w.e.f. 10.7.2010 and give direction to the respondents to give him all terminal benefits and pension with effect from the said date.
4. Mr. Danish Zubair Khan, learned counsel for applicant submitted that by 10.7.2010 the applicant had completed 20 years of service and there could be no reason to not treat him retired from service w.e.f. 10.7.2010. He referred to various documents to establish his length of service. The calculation of service placed by the applicant at page 47 of the paper book, referred to by learned counsel, reads as under:-
Details of service rendered by S.B. Sundaresan Date of appointment 01.12.1988 upto 30.11.2007 19 year completed 01.12.2007 to 31.12.2007 - 31 days 01.01.2008 to 13.01.2008 - 13 days 14.01.2008 to 21.11.2008 EOL Non-Qualifying service as per SQAE (V) D.O. part-II srl no.21, dt. 15.06.2009
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313 days 22.11.2008 to 30.11.2008 - 09 days 01.12.2008 to 31.12.2008 - 31 days 01.01.2009 to 31.01.2009 - 31 days 01.02.2009 to 28.02.2009 - 28 days 01.03.2009 to 31.03.2009 - 31 days 01.04.2009 to 30.04.2009 - 30 days 01.05.2009 to 31.05.2009 - 31 days 01.06.2009 to 30.06.2009 - 30 days 01.07.2009 to 31.07.2009 - 31 days 01.08.2009 to 31.08.2009 - 31 days 01.09.2009 to 25.09.2009 - 25 days 352 days 26.09.2009 to 22.02.2010 absent period yet to be regularised
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150 days 23.02.2010 to 28.02.2010 - 5 days 01.03.2010 to 09.03.2010 - 9 days 366 days VRS Notice date of 09.03.2010 Net Qualifying service
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20 years & 2 days completed 10.03.2010 to 31.03.2010 - 22 days 01.04.2010 to 30.04.2010 - 30 days 01.05.2010 to 31.05.2010 - 31 days 01.06.2010 to 30.06.2010 - 30 days 01.03.2010 to 10.07.2010 - 10 days 123 days
5. On the other hand, Mr. D. S. Mahendru, learned counsel for respondents submitted that the applicant cannot be deemed retired from service from a retrospective date and in the absence of a specific order passed by the competent authority in this regard, there is no question to treat him retired from service.
6. I heard the learned counsel for the parties and perused the record.
7. It is not in dispute that the competent authority has not yet accepted the request of the applicant for retirement from service voluntarily. It is settled position of law that until and unless the application for voluntary retirement is accepted by the competent authority, the employee concerned cannot be deemed as retired. Besides, I dont know any such law, which provides for voluntary retirement from a retrospective date. The applicant had worked out his claim for voluntary retirement from 10.7.2010 by filing Original Application No.3983/2010 and the Tribunal disposed of the said Original Application in terms of the Order dated 16.8.2011 giving opportunity to the respondents to take a decision regarding the period of 150 days absence of the applicant as also on his application / representation for voluntary retirement. When in terms of the Order of the Tribunal (ibid) the decision on application for voluntary retirement was to be taken by the competent authority after 16.8.2011, there can be no question to declare the applicant as retired from service w.e.f. 10.7.2010. Even otherwise also, it is impracticable to treat a person as retired from service from a date after which he remained in service for almost four years. Such period of service cannot be set at knot by legal fiction.
8. In Dinesh Kumar Sharma v. C.M.D., BSNL, BSNL Corporate Office & others (T.A.No.4/2013 in W.P. (C) No.2976/2012) decided on 19.8.2013, following the judgment of the Honble Supreme Court in State of Uttar Pradesh & others v. Laxmi Kant Shukla, (2011) 9 SCC 532, it could be viewed by this Tribunal that the notice for voluntary retirement does not take an effect until a positive order is passed by the competent authority and it is open to the appointing authority to decline the permission for voluntary retirement. The relevant excerpt of the decision of this Tribunal (ibid) is reproduced hereinbelow:-
4. We have heard the applicant and learned counsel for respondents and perused the record. The short issue arises to be determined by us is, whether on expiry of notice given by applicant on 17.04.2009 or extended period, the applicant could be considered as deemed voluntarily retired from service. The legal position on said issue is settled by the Honble Supreme Court in State of U.P and Others Vs. Laxmi Kant Shukla ( 2011 (9) SCC 532). Paras 24 to 28 of the judgment read as under:-
24. The High Court, however, has taken the view in the impugned judgment that it was incumbent upon the appointing authority to inform the respondent before the expiry of the notice period of three months that his request for voluntary retirement has not been accepted and the High Court has therefore directed that a fresh decision be taken by the State Government on the request of the respondent for voluntary retirement after it found that the Chief Minister had not put her signature in the order rejecting the request of the respondent for voluntary retirement. This view taken by the High Court, in our considered opinion, is contrary to the plain language of the proviso which states that in the case of "a contemplated disciplinary proceeding" the government servant shall be informed before the expiry of his notice that it has not been accepted.
25. As we have already found, this is not a case of "a contemplated disciplinary proceeding", but a case of disciplinary proceeding which was already pending when the respondent made the request for voluntary retirement on 28.05.2009 and the finding of the High Court that the respondent was required to be informed before the expiry of his notice of voluntary retirement that it had not been accepted is erroneous. In view of our finding that in a case where a disciplinary proceeding was pending, the relevant proviso to FR 56(c) and (d) does not require the decision of the appointing authority to be communicated to the Government servant before the expiry of the period of notice of voluntary retirement, it is not necessary for us to examine further whether the order dated 16.12.2009 rejecting the request of the respondent for voluntary retirement without the signature of the Chief Minister was valid or not.
26. The decision of this Court in Union of India v. Sayed Muzaffar Mir (supra) cited by the respondent does not apply to the facts of the present case. In that case, Rule 1802 (b) of the Indian Railway Establishment Code provided that the railway servant could retire voluntarily from service by serving three months notice and a railway servant by his letter dated 22.07.1985 gave a three months notice to the Railways to retire from service. After the three months period expired on 21.10.1985, the order of removal of the railway servant was passed on 04.11.1985. On these facts the Central Administrative Tribunal, New Mumbai Bench, held that since the period of notice of voluntary retirement had expired on 21.10.1985, the order of removal was nonest in the eye of law and this Court did not find any infirmity in the order of the Tribunal.
27. In the present case, the relevant proviso to Clauses (c) and (d) of FR 56 was explicit that in case of a disciplinary proceeding which is pending, the notice of voluntary retirement cannot be "effective" until the appointing authority accepted the notice for voluntary retirement. We have already found that when the request for voluntary retirement was made by the respondent on 28.05.2009, the disciplinary proceeding was pending against him. Therefore, the notice of voluntary retirement was not effective until a positive order of acceptance of the notice of voluntary retirement was passed by the State Government.
28. As has been held by this Court in State of Haryana v. S.K.Singhal [(1999) 4 SCC 293] cited by Mr. Rao, that if the right to voluntary retirement is conferred on the employee in absolute terms by the relevant rules and there is no provision in the rules to withhold permission in certain contingencies, then voluntary retirement will come into effect automatically on the expiry of the period specified in the notice, but if such right to voluntary retirement of an employee, who is under suspension or who is facing disciplinary proceedings, is not conferred in absolute terms but is contingent upon the permission by the appointing authority, the notice of voluntary retirement does not take effect until a positive order is passed by the appointing authority.
In Tek Chand Vs. Dile Ram (2001 (3) SCC 290), it has been held that it is open to appointing authority to decline the permission for voluntary retirement before expiry of the date of notice on whatever grounds available to it. Paras 33 and 34 of the judgment read as under:-
33. It is clear from Sub-rule (2) of the Rule that the appointing authority is required to accept the notice of voluntary retirement given under Sub-rule (1). It is open to the appointing authority to refuse also on whatever grounds available to it but such refusal has to be before the expiry of the period specified in the notice. The proviso to Sub-rule (2) is clear and certain in its terms. If the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement sought for becomes effective from the date of expiry of the said period. In this case, admittedly, the appointing authority did not refuse to grant the permission for retirement to Nikka Ram before the expiry of the period specified in the notice dated 5.12.1994. The learned senior Counsel for the respondent argued that the acceptance of voluntary retirement by appointing authority in all cases is mandatory. In the absence of such express acceptance the Government servant continues to be in service. In support of this submission, he drew our attention to Rule 56(k) of Fundamental Rules, He also submitted that acceptance may be on a later date, that is, even after the expiry of the period specified in the notice and the retirement could be effective from the date specified in the notice. Since the proviso to Sub-rule (2) of Rule 48A is clear in itself and the said Rule 48A is self-contained, in our opinion, it is unnecessary to look into other provisions, more so in the light of law laid down by this Court. An argument that acceptance can be even long after the date of the expiry of the period specified in the notice and that the voluntary retirement may become effective from the date specified in the notice, will lead to anomalous situation. Take a case, if an application for voluntary retirement is accepted few years later from the date specified in the notice and voluntary retirement becomes operative from the date of expiry of the notice period itself, what would be the position or status of such a Government servant during the period from the date of expiry of the notice period upto the date of acceptance of the voluntary retirement by the appointing authority? One either continues in service or does not continue in service. It cannot be both that the voluntary retirement could be effective from the date of expiry of the period mentioned in the notice and still a Government servant could continue in service till the voluntary retirement is accepted. The proviso to Sub-rule (2) of Rule 48A of the Rules does not admit such situation.
34. This Court in a recent judgment in the case of State of Haryana and Others v. S. K. Singhal [JT 1999 (3) SC 140 = (1999) 4 SCC 293], after referring to few earlier decisions of this Court touching the very point in controversy in para 13 of the judgment has held thus :
"13. Thus, from the aforesaid three decisions, it is clear that if the right to voluntarily retire is conferred in absolute terms as in Dinesh Chandra Sangma case by the relevant Rules and there is no provision in the Rules to withhold permission in certain contingencies, the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. If, however, as in B.J. Shelat's case and as in Sayed Muzaffar Mir's case the authority concerned is empowered to withhold permission to retire if certain conditions exist, viz, in case the employee is under suspension or in case a departmental enquiry is pending or is contemplated, the mere pendency of the suspension or departmental enquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on the expiry of the period specified. What is further needed is that the authority concerned must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in B.J. Shelat's case and in Sayed Muzaffar Mir's case before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non-communication of acceptance should be treated as amounting to withholding of permission."
In the present case, apparently on 6.08.2009, the AGM (Pers.II) informed the Chief General Manager (Bharat Sanchar Nigam Limited) that the notice dated 17.04.2009 for voluntary retirement of the applicant w.e.f. 28.07.2009 and later postponed to 06.08.2009 could not be accepted, as serious complaint against him was being investigated. In terms of communication dated 11.08.2009, again such refusal was communicated to the General Manager, Telecom (District Ghaziabad). For easy reference, the contents of both the communications are extracted hereinbelow:-
6.8.2009 Sub: Voluntary retirement from BSNL service-case of Shri Dinesh Prasad Sharma, SDE.
Kindly refer to your office letter No. UPW7-3/Pen/Staff-2000/V/90 dated 01.06.09 regarding VR case w.e.f. 28.7.09 of Shri Dinesh Prasad Sharma, Sr. SDE (Staff No. 14784) UP (W) Telecom Circle. The officer has requested to change his date of VRS from 28.07.09 to 06.08.09 vide his application dated 03.07.09 It has been intimated by vigilance cell vide letter dated 06.08.09 that a serious compliant against the officer is being investigated, and therefore, VRS should not be accepted at this time and the applicant should be asked to postpone the VRS for another three months.
Accordingly, the notice dated 17.04.09 of VR w.e.f. 28.07.09 and later postponed to 06.08.09 can not be accepted at this stage and the officer may be intimated accordingly. The officer may not be relieved. However, as reported by Vig. Branch the officer may be requested to postpone his VR by further three months.
This issue with the approval of the Competent Authority. xxx xxxxx xxxx 11.08.2009
Sub: Regarding- Voluntary retirement from BSNL Service-case of Shri Dinesh Prasad Sharma, Sr. SDE of Ghaziabad SSA.
Kindly find enclosed herewith BSNL Corporate Office New Delhi letter No. 17-65/2009-Pers.II dated 06.08.2009, on the subject cited above. In this regard it is intimated that a serious compliant against the officer is being investigated, and therefore VRSD should not be accepted at this time and the applicant may be asked to postpone the VRS for another three months. Besides, as can be seen from the contents of guidelines placed on record by the applicant himself on record, the acceptance of VRS can be declined in a case where the disciplinary proceedings are contemplated against the Government servant. For easy reference, such guidelines are extracted hereinbelow:-
(iii). Guidelines for acceptance of notice.- A notice of voluntary retirement given after completion of twenty years qualifying service will require acceptance by the appointing authority if the date of retirement on the expiry of the notice would be earlier than the date on which the Government servant concerned could have retired voluntarily under the existing rules applicant to him [e.g. F.R. 56 (k), Rule 48 of the Pension Rules, Article 459 (i) of C.S.Rs, or any other similar rule]. Such acceptance may be generally given in all cases except those (a) in which disciplinary proceedings are pending or contemplated against the Government servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case, or (b) in which prosecution is contemplated or may have been launched in a Court of Law against the Government servant concerned. If it is proposed to accept the notice of voluntary retirement even in such cases, approval of the Minister-in0charge should be obtained in regard to Group A and Group B Government servants and that of the Head of the Department in the cases of Group C and Group D Government servants. Even where the notice of voluntary retirement given by a Government servant requires acceptance by the appointing authority, the Government servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice We may also usefully refer to the judgment of Honble Supreme Court in Jaipal Singh Vs. Sumitra Mahajan (Smt) and Another (2004) 4 SCC 522). In para 10 of the said judgment, it has been viewed that in case of resignation, prior permission is not mandatory while in the case of voluntary retirement, permission of the employer concerned is requisite condition. For easy reference, the said paragraph is extracted hereinbelow:-
10. We also do not find any merit in the argument advanced on behalf of the appel-lant that the acceptance by the appointing authority of the application seeking permis-sion to retire was not required as there was no difference between "voluntary retirement" and "resignation". In the case of Reserve Bank of India and another v. Cecil Dennis Solomon and another reported in (2004 (100) FLR 441), this Court has laid down that in service jurisprudence there is a difference between "voluntary retirement" and "resig-nation" as they convey different connota-tions. It has been held that voluntary re-tirement and resignation involve voluntary acts on the part of the employees to leave service and though both involve voluntary acts, they operate differently. One of the basic distinction between the two is that in the case of resignation, it can be tendered at any time but in the case of voluntary re-tirement, it can only be sought for after ren-dering prescribed period of qualifying serv-ice. In the case of resignation, a prior per-mission is not mandatory while in the case of voluntary retirement, permission of con-cerned employer is requisite condition. Un-der Rule 16 of the 1958 Rules, an employee who seeks voluntary retirement has to give three months notice to enable the employer to complete the designated mode of accept-ance (See : Halsbury's Laws of England, 4th Edition, Vol. 9 Page 133). Lastly, in a given case, the appointing authority may refuse to waive the said notice period which shows that resignation may be unilateral whereas voluntary retirement is bilateral. A similar question came before this Court in the case of UCO Bank and others v. Sanwar Mal de-cided on 11-3-2004 vide Civil Appeal No. 3192 of 1999 (unreported), in which this Court has inter alia held that in the case of 'resignation', the relationship of employer and employee terminates on acceptance of resignation whereas in the case of 'retire-ment', voluntary or on superannuation, the relationship continues for the purposes of payment of retiral benefits. In the case of retirement, there is a nexus between such retirement and retiral benefits. For the aforestated reasons, we do not find any merit in the arguments advanced on behalf of the appellant.
In H.P.M.C. Vs Shri Suman Behari Sharma (AIR 1996 SC 1353), it has been categorically viewed that the employee seeking voluntary retirement has a right to make request in that behalf but his request would be effective only if he is permitted to retire and there is no automatic retirement or snapping of service relationship on expiry of three months period. Relevant excerpt of the said judgment is extracted hereinbelow:-
3. The contention of the respondent before the Tribunal was that as no action was taken by the HPMC on his request for retirement he stood retired with effect from 26-2-1991, on expiry of three months from the date of the notice and, therefore, no enquiry could be held against him thereafter. The Tribunal, while interpreting clause 3.8 of the Himachal Pradesh Horticultural Produce Marketing and Processing Corporation Ltd. - Employees Service Bye-laws, which provides for superannuation and retirement, held that the decisions in Dinesh Chandra Sangma v. State of Assam 1977 Serv LJ 622 : (AIR 1978 SC 17) and Union of India v. Harendralal Bhattacharya (1983) 2 Serv LJ 418 : (1984 Lab IC NOC 167) (Delhi) Ramchandra v. State of Madh Pra (1984) 1 Serv LJ 52 wherein it has been held that the Government servant has a right to voluntarily retire from service by giving three months notice in writing and that there is no question of acceptance of such request by the Government and that the Government has no power to withhold permission to retire were applicable. It further held that under the rule the HPMC has a privilege to exercise its option to accept or not the request of the employee for premature retirement but that option has to be exercised within the prescribed limit of three months. It also held that as the HPMC did not take any decision on the application of the respondent within three months he stood retired with effect from 26-2-1991. The Tribunal, therefore, quashed the two memos dated 27-8-1992 and 18-9-1992 and directed HPMC that it cannot hold any enquiry against the respondent. The order dated 28-6-1991 passed for recovery of Rs.28,214/- was also quashed. It also directed HPMC to give all the retiral benefits due and admissible to the respondent within a period of three months. Aggrieved by this order of the Tribunal HPMC has approached this Court.
In Power Finance Corporation Ltd. Vs Pramod Kumar Bhatia (1997 (4) SCC 280), it has been held that unless the employee is relieved of the duty, jural relationship of the employer and the employee does not come to an end. Relevant excerpt of the said judgment read as under:-
7. It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end. Since the order accepting the voluntary retirement was a conditional one, the conditions ought to have been complied with. Before the conditions could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective. Thereby no vested right has been created in favour of the respondent. The High court, therefore, was not right in holding that the respondent has acquired a vested right and, therefore, the appellant has no right to withdraw the scheme subsequently.
9. In view of the aforementioned, the prayer of the applicant for declaring him as retired w.e.f. 10.7.2010 is declined subject to the observations that it would be open to the applicant to make application for voluntary retirement afresh, as provided by the respondents in the impugned communication dated 22.12.2011, if he still wishes to do so. On such application, as per their own stand in the impugned communication, the respondents would take a final decision expeditiously keeping in view the calculation of length of service given by the applicant at page 178 of the paper book.
10. The Original Application is dismissed. No costs.
( A. K. Bhardwaj ) Member (J) May 26, 2014 /sunil/