Madras High Court
N. Krishnaswamy vs The Chairman, State Bank Of India And ... on 24 September, 1998
Equivalent citations: (1999)1MLJ130
ORDER K. Govindarajan, J.
1. The petitioner has filed the writ petition, in W.P. No. 5065 of 1997, seeking to quash the proceedings of the respondent dated 15.3.1997 in which the petitioner has been punished by reduction in basic pay by one stage.
2. According to the petitioner, he was called upon to explain with reference to his lapse as mentioned in the letter dated 9.1.1991 of the respondent's Tiruchi branch. In reply to the said letter, the petitioner sent a reply to the Regional Manager on 15.2.1991. While the same is pending. On 6.11.1991 the petitioner sent a letter requesting the Chief General Manager to accept his voluntary retirement from service, with retirement benefits as applicable to him. He has also requested to treat the same as three months' notice, from the date of the said letter. Since the period of three months was over in February, 1992, and no order passed by the respondent, rejecting his request, the petitioner has come forward with the plea that he has already retired even in February, 1992 and so the disciplinary proceedings cannot be initiated against him. On that basis the petitioner has challenged the impugned order as the same is illegal and without jurisdiction.
3. On the basis of the abovesaid facts, the petitioner has also filed another writ petition in W.P. No. 22073 of 1993, seeking to issue a writ of mandamus, directing the respondents to sanction and pay the terminal benefits with interest from February, 1992.
4. The only question that has to be gone into in these writ petitions is whether the petitioner had retired voluntarily from service as claimed by him pursuant to the notice dated 6.11.1991.
5. The (sic)rned senior counsel appearing for the petitioner has relied on the fourth proviso to Rule 19 of the S.B.I. Officers' Service Rules, which reads as follows:
Provided further that an officer who has completed 20 years' service or 20 years' pensionable service, as the case may be, may be permitted by the competent authority to retire from the Bank's service, subject to his giving three months' notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived by it.
6. On the basis of the abovesaid fourth proviso, the learned Counsel has submitted that before the expiry of the said period of three months, no letter, rejecting the petitioner's request was received from the respondent and so the retirement, on expiry of the three months, period, from the date of the said notice, is automatic. In support of his submission, the learned senior counsel has relied on the decision in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and in Jagdish Pandey v. Chancellor, Bihar University . In the abovesaid decisions, the Apex Court has dealt with a case where the employee was terminated by the employer by giving such notice. On reading the facts of those cases, I am not in a position to appreciate as to how those decisions are relevant to the facts of the present case. The learned senior counsel has further relied on the decision in Dinesh Chandra v. State of Assam and in B.J. Shelat v. State of Gujarat . In the decision in , the Apex Court has dealt with the scope of the Fundamental Rule 56(c), which does not contemplate any permission. On the expiry of the period of three months from the date of the notice, the retirement is automatic. Similarly even in the decision in A.I.R. 1978 S.C. 1109, the proviso to Rule 161(2 )(ii) restrict the power of the Government to withhold permission only in certain circumstances otherwise the right of the employee to retire voluntarily is provided by giving three months' notice. Even the decision in Union of India v. Sayed Muzaffar Mir , is similar to the abovesaid decision of the Apex Court. So, the abovesaid decisions of the Apex Court cannot be made applicable to the facts of the present case, in which, the Regulations specifically contemplate permission by the competent authority to retire from banking service.
7. While dealing with similar provisions, the Apex Court in the decision in H.P.M.C. v. Suman Behari Sharma , has held as follows:
Clause (2) of the Bye-law inter alia provides for voluntary retirement from service of H.P.M.C. on completion of 25 years service or on attaining the age of 50 years, whichever is earlier. The employee, however, has a right to make a request in that behalf and his request would become effective only if he is permitted' to retire. The words may be... permitted at his request clearly indicate that the said clause does not confer on the employee a right to retire on completion of either 25 years service or on attaining the age of 50 years. It confers on the employee a right to make a request to permit him to retire. Obviously, if request is not accepted and permission is not granted the employee will not be able to retire as desired by him. Para (5) of the Bye-law is in the nature of an exception to para (2) and permits the employee who has not completed 25 years service or has attained 50 years of age to seek retirement if he has completed 20 years satisfactory service.
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We cannot agree with the interpretation canvassed by learned Counsel for the respondent. The Byelaw has to be read as a whole. Para 2 thereof confers a right on the employee to request for voluntary retirement on completion of 25 years service or on attaining the age of 50 years, but his desire would materialise only if he is permitted to retire and not otherwise. Ordinarily, in a matter like this an employee who has put in less number of years of service would not be on a better footing than the employee who has put in longer service. It could not have been the intention of the rule-making authority while framing para 5 of the bye-law to confer on such an employee a better and a larger right to retire after giving three months notice in writing. The words 'seek retirement" in para 5 indicate that the right which is conferred by it is not the right to retire but a right to ask for retirement. The word 'seek' implies a request by the employee and corresponding acceptance or permission by H.P.M.C. Therefore, there cannot be automatic retirement or snapping of service relationship on expiry of three months period.
In view of the abovesaid decisions, it is clear that since Rule is contemplated for such permission, unless such permission is granted, it cannot be said that the employee has retired from service automatically. In this case, admittedly, the respondents have not accepted, in the order dated 2.5.1992, the application filed by the petitioner seeking permission to retire voluntarily.
8. The Apex Court in Power Finance Corporation Ltd v. Pramod Kumar Bhatia , held that it is now settled legal position that unless the employee is relieved of the duty after acceptance of the officer of voluntary retirement or resignation, jural relationship of the employee and employer does not come to an end.
9. The learned Senior Counsel appearing for the petitioner has further submitted that only under the circumstances mentioned in Rule 20(2), permission can be rejected. But, unfortunately, the order passed on 2.5.1992 rejecting the petitioner's request is not under challenge and the same has become final. So, the submission of the learned senior counsel with respect to the correctness of the order dated 2.5.1992 cannot be gone into in these writ petitions. In the counter filed by the respondent it is specifically stated that in spite of opportunities given, on so many occasions the petitioner did not participate given, in the enquiry and so the respondents had passed the impugned order. Without even participating in the enquiry and without availing of the opportunities to defend the case on merits, the petitioner cannot be now allowed to challenge the impugned order on merits. The main attack of the petitioner that he is not an employee of the respondents on the date of passing of the order and so the impugned order cannot be sustained, cannot be countenanced. In view of the refusal of the permission as sought for by the petitioner, in the order of the respondents dated 2.5.1992, it has to be construed that the petitioner has been continuing as an employee of the respondents. In view of the above, I do not find any merits in W.P. No. 5065 of 1997 and hence the same is liable to be dismissed.
10. Similarly the petitioner cannot also ask for terminal benefits on the ground that he retired from service from February, 1992 and so, W.P. No. 22073 of 1993 is also liable to be dismissed.
11. Hence, both the writ petitions are dismissed with costs at Rs. 3,000. Consequently, W.M.P. Nos. 34661 of 1992 and 6863 of 1997 are closed.