Rajasthan High Court - Jodhpur
Pritam Das Geryani vs National Ins. Co. Ltd. & Ors on 6 February, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Writ Petition No. 1136 / 2015
Pritam Das Geryani s/o Shri T.M.Geryani, aged about 58 years,
resident of C-277-A, Saksi Bhawan, Model Town, Malviya Nagar,
Jaipur.
----Petitioner
Versus
1. National Ins. Co. Ltd. Through its Chairman cum Managing
Director, 3, Middleton Street, Kolkata.
2. National Insurance Company Ltd., through its Chief Regional
Manager, Pal Road, Jodhpur.
3. The Senior Divisional Manager, National Insurance Company
Ltd, Panchsati Circle, Sadulganj, Bikaner.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Anil Bhandari.
For Respondent(s) : Mr.M.S.Singhvi, Sr. Advocate assisted by
Mr. Jagdish Vyas.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Reportable Order
06/2/2017
This writ petition has been filed by the petitioner aggrieved against the communication dated 29/7/2010 (Annex.4) and 14/8/2014 (Annex.6) with a prayer to hold that the petitioner stood automatically voluntarily retired from the post of Development Officer w.e.f. 28/7/2010 with consequential reliefs pertaining to his retiral benefits and a restrain against the respondents from taking any action against the petitioner in terms of the letter Annex.6.
It is inter alia averred in the writ petition that the petitioner (2 of 22) [ CW-1136/2015] was appointed as Probationary Inspector vide order dated 4/9/1981 and he joined his duties on 7/9/1981; w.e.f. 1/9/1982 the petitioner was promoted as Development Officer Gr.I and his services were confirmed on 1/9/1982 in terms of the General Insurance (Employees') Pension Scheme, 1995 ('the Pension Scheme').
The petitioner then contended that he applied for voluntary retirement to the Chief Regional Manager of the Company through proper channel on 29/4/2010 on account of his ill health and requested that he may be allowed to retire voluntarily after expiry of 90 days from the date of application and the application may be treated as notice. The petitioner also requested to accept his voluntary retirement and grant retiral benefits, the notice was also sent by fax on 29/4/2010 itself and in terms of the notice, the petitioner was to retire voluntarily on 28/7/2010.
It is claimed that after the expiry of the notice period, the petitioner received a letter dated 29/7/2010 (Annex.4) from the Senior Divisional Manager on 10/8/2010 stating that decision of accepting the application for voluntary retirement is kept pending by the competent authority. It is, thereafter, contended that under sub clause (1) of Clause 30 of the Pension Scheme it is provided that an employee,who had completed 20 years of qualifying service is entitled to give notice of not less than 90 days for voluntary retirement from service to the appointing authority and as per sub clause (2) the said notice of voluntary retirement requires acceptance by the appointing authority and where the (3 of 22) [ CW-1136/2015] appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, retirement shall become effective from the date of expiry of the said period.
It is then contended that the petitioner was under bonafide impression that until and unless the notice of voluntary retirement is accepted by the appointing authority, he cannot retire from service, which impression was on the basis of wrong advise, though he continued to serve the respondent Company during all this period.
Whereafter, the petitioner sent a reminder dated 15/7/2014 (Annex.5) to the respondent no.2 reminding that his application was pending and same be accepted with immediate effect. The said letter was responded by letter dated 14/8/2014 (Annex.6) inter alia indicating that since the petitioner was working above stipulated cost for years, therefore, appropriate action under the Development Officers Scheme is to be taken, in these circumstances decision for accepting voluntary retirement is kept pending. Whereafter, it is indicated in the petition that the respondents have issued letter dated 15/10/2010 by which recovery of Rs.18,25,888/- has been sought to be made against the cost ratio, the respondents have started recovery of the said amount @ Rs.15,000/-per month w.e.f. August,2012 from the salary of the petitioner, which action has been separately challenged.
It is submitted by learned counsel for the petitioner that in (4 of 22) [ CW-1136/2015] terms of the provisions of Clause 30 of the Pension Scheme the petitioner stood retired on expiry of 90 days from the date of notice and the action of the respondents in treating the petitioner in service and/or refuse the voluntary retirement is contrary to the provisions of Pension Scheme and the law governing the said field. It is submitted that the notice seeking voluntary retirement was given on 29/4/2010 and the same was sent by fax also on the same date, the period of 90 days expired on 28/7/2010, however, the request for voluntary retirement was not refused before the expiry of period of 90 days and only after expiry of the said period of 90 days, the communication dated 29/7/2010 (Annex.4) was issued informing the petitioner regarding keeping the notice/request pending, which also was received by the petitioner on 19/8/2010 i.e. much beyond the stipulated period of 90 days. It is contended that once the respondents failed to refuse to grant the voluntary retirement within the period of 90 days and communicate the same to the petitioner within the said period of 90 days itself, the petitioner would be deemed to have voluntary retired on the said date and, therefore, all the actions taken subsequently including the letter dated 29/7/2010 communicating keeping the request pending as well as Annex.6 dated 14/9/2014 again reiterating the pendency of decision on voluntary retirement application deserve to be quashed and set aside.
Reliance has been placed on the judgments of Hon'ble Supreme Court in the case of State of Haryana & Ors. vs. S.K.Singhal : (1999) 4 SCC 293; Dinesh Chandra Sangma vs. (5 of 22) [ CW-1136/2015] State of Assam & Ors. : 1978 (1) S.L.R 25; B.J.Shelat vs. State of Gujarat & Anr. : 1978 (2) S.L.R. 88 and Manjushree Pathak vs. Assam Industrial Development Corporation ltd.& Ors. : 2000 SCC (L&S) 939.
It was submitted that the Pension Scheme is a statutory scheme and the fact of non-communication of the refusal within the stipulated period of 90 days would result in consequences stipulated therein as all the actions have been taken by the respondents after expiry of the notice period. In support of the submission that the Pension Scheme is a statutory scheme, reliance has been placed on New India Assurance Company Ltd. vs. Raghuvir Singh Narang & Anr. : (2010) 5 SCC 335.
It was also submitted with vehemence that the mere fact that the petitioner continued to discharge his duties as Development Officer despite his having automatically voluntarily retired w.e.f. 28/7/2010 and having been superannuated during the pendency of the present writ petition on 28/10/2016 on reaching the age of superannuation cannot militate against the petitioner in seeking relief in accordance with the law.
Reliance has been placed on the judgments of Hon'ble Supreme Court in Union of India & Ors. vs. Tarsem Singh : (2008) 2 SCC (L&S) 765; Asger Ibrahim Amin vs. Life Insurance Corporation of India : 2015 AIR SCW 6362; Collector of Madras & Anr. Vs K.Rajamanickam : (1995) 2 SCC 98; State of J & K vs. Pirzada Ghulam Nabi : 1998 SCC (L&S) 462; Committee of Management Dayanand Arya Kanya Degree College, Moradabad & (6 of 22) [ CW-1136/2015] Ors. vs. Director of Higher Education, Allahabad & Ors. : 1998 SCC (L&S) 1011.
Further submissions were made that the fact that petitioner continued to work despite automatically coming into force of his voluntary retirement in the year 2010 till the year 2016, cannot operate as an estoppel against the petitioner.
Reliance was placed on Dr.Ashok Kumar Maheshwari vs. State of U.P. & Anr. : 1998 SCC (L&S) 592; Raj Kumar & Ors. vs. Shakti Raj & Ors. : 1997 SCC (L&S) 1029.
In the last, submissions were made that petitioner is entitled to the retiral benefits in terms of the Pension Scheme and that Pension being a property cannot be taken away without due process of law and that the amount cannot be deducted either from Provident Fund or Gratuity.
Reliance was placed on State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr. : 2013 AIR SCW 4749; Som Prakash Rekhi vs. Union of India & Ors. : 1980 (1) S.L.R. 154.
A submission was also made that on accepting the petition and holding him to have voluntarily retired w.e.f. 28/7/2010, the salary paid during the period 2010 to 2016 can be adjusted against his dues.
Reliance was placed on Gorakhpur University & Ors. vs. Dr.Shitla Prasad Nagendra & Ors. : 2001 SCC (L&S) 1032 and Dulu Devi vs.State of Assam & Ors. : AIR 2016 SC 2152.
A reply to the writ petition has been filed by the respondent (7 of 22) [ CW-1136/2015] inter alia indicating that the application seeking voluntary retirement given by the petitioner was forwarded by the Branch Office, Churu to the Divisional Manager on 30/4/2010, on 10/5/2010 the same was forwarded to the Deputy General Manager, which was received by him on 11/5/2010. On 28/7/2010,the Deputy General Manager, the competent authority, informed the Divisional Manager vide Annex.R/4 that the petitioner was working above stipulated cost for years and appropriate action under the Development Officers Scheme was yet to be taken and, therefore, the application for voluntary retirement is kept pending for decision and the same be conveyed to the petitioner immediately.
It is contended that the decision was taken and communication issued within the stipulated period of 90 days and once the respondents decided not to accept the application for voluntary retirement within the stipulated period, the petitioner cannot seek automatic voluntary retirement in terms of the Pension Scheme.
It is contended that even after the expiry of notice period and alleged automatic voluntary retirement, the petitioner continuously reported on duty, thus it is clear that the petitioner has abandoned his notice for voluntary retirement. A sum of Rs.18,25,888/- was found recoverable from the petitioner, which on review was reduced to Rs.15,31,678/- and the amount was being recovered @ Rs.15,000/- per month w.e.f. August, 2012 from the salary and, therefore, the plea sought to be raised by the (8 of 22) [ CW-1136/2015] petitioner claiming to have automatically voluntarily retired w.e.f. 18/7/2010 is not justified and, therefore, the writ petition filed by the petitioner deserves to be dismissed.
It is submitted by learned counsel appearing for the respondents that the present is a clear case of waiver on the part of petitioner qua the application seeking voluntary retirement filed by him, which aspect is apparent from the facts of the present case. It is submitted that in the letter dated 15/7/2014 (Annex.5) the petitioner himself has indicated that his application be accepted, which necessarily means that as per the petitioner's own submissions, the application was still pending; as per averments made in the writ petition, admittedly recovery of sum of Rs.15,000/- p.m. was started w.e.f. August, 2012 from the salary of the petitioner and no objection in this regard was raised by the petitioner till he filed the present writ petition claiming automatic voluntary retirement w.e.f.28/7/2010. There has been no communication between 2010 to 2014 and petitioner has been availing all the benefits of a regular employee.
It was further submitted that in writ petition No.3780/2016, the petitioner himself has indicated that he was working as Development Officer and, therefore, the present is a case of waiver. Consequently, the petitioner is not entitled to contend that he stood voluntarily retired w.e.f. 28/7/2010.
Reliance was placed on Bank of India & Ors. vs. O.P.Swarnakar & Ors. : (2003) 2 SCC 721 (para 114 & 115); Punjab & Sind Bank & Anr. vs. S.Ranveer Singh Bawa & Anr. :
(9 of 22) [ CW-1136/2015] (2004 ) 4 SCC 484 and Cauvery Coffee Traders, Mangalore vs. Hornor Resources (International) Company Ltd. : (2011) 10 SCC
420.
On merits of the contentions raised by the petitioner, it was submitted that the decision was taken by the respondents on 28/7/2010 (Annex.R/4) i.e. within the stipulated period of 90 days not granting the prayer for voluntary retirement and communication was issued. It was submitted that taking of the decision and its communication was sufficient and there was no requirement of receipt of the same by the petitioner within the said period of 90 days as contended by the petitioner. It was submitted that nature of order refusing to grant voluntary retirement is not such for coming into force of which, receipt is mandatory.
Reliance was placed on the judgments of Hon'ble Supreme Court in Union of India vs. Kewal Kumar : (1993) 3 SCC 204; Municipal Corporation of Delhi vs. Qimat Rai Gupta & Ors. :
(2007) 7 SCC 309 and State of West Bengal & Ors. vs. R.K.B.K.Limited & Anr. : (2015) 10 SCC 369.
It was also contended that the judgment in the case of S.K.Singhal (supra), wherein, based on the observations made in the case of B.J.Shelat (supra), it has been laid down that communication within the stipulated period is necessary does not lay down necessity of receipt by the employee during the stipulated period. It is submitted that in the case of B.J.Shelat (supra), the Honb'le Supreme Court specifically in a case of (10 of 22) [ CW-1136/2015] voluntary retirement laid down that it is not necessary that the communication should reach the Govt. Servant and, therefore, the requirement sought to be projected by the petitioner regarding receipt of the order within the stipulated period has no basis. It was prayed that as the respondents have acted in accordance with the Pension Scheme and waiver on the part of the petitioner is writ large on record, the writ petition deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
At the outset, it would be appropriate to notice the relevant part of the provisions of Clause 30 of the Pension Scheme, which reads as under:-
"30. Pension on voluntary retirement -
(1) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than ninety days, in writing to the appointing authority, retire from service:
Provided that this sub-paragraph shall not apply to an employee who is on deputation unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year:
Provided further that this sub-paragraph shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. (2) The notice of voluntary retirement given under sub-
paragraph (1) shall require acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
(3) ......
(4) An employee who has elected to retire under this paragraph and has given necessary notice to that effect to the appointing authority shall be precluded from (11 of 22) [ CW-1136/2015] withdrawing his notice except with the specific approval of such authority:
Provided that the request for such withdrawal shall be made before the intended date of his retirement.
(5) ......
(6) ......"
A bare look at the above provisions reveal that an employee by giving a notice of not less than 90 days in writing to the appointing authority can retire from service, the notice of voluntary retirement requires acceptance by the appointing authority and the proviso to sub-clause (2) provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the said notice period.
The events in the present case are not in dispute, wherein, vide Annex.3 dated 29/4/2010 notice was given by the petitioner seeking voluntary retirement. By order dated 28/7/2010 the Deputy General Manager communicated to the Divisional Manager as under:-
" Most Urgent Re: Application for Voluntary Retirement A/C Sh. P D Geriyani, Development Officer, Br. Churu This is in reference to your letter dated 10/05/2010 forwarding the application for Voluntary Retirement of Sh. P.D.Geriyani, Development Officer, Br.Churu dated 29.04.2010.
It is observed from your letters dated 05.07.2010 and 26.07.2010 that Sh. Geriyani is working above stipulated cost for years. It is also observed that appropriate action under Development Officers' scheme are yet to be taken. The final computation is awaited from you. In these circumstances we keep pending our decision for accepting the voluntary retirement.
You are requested to convey the decision to Sh. P.D.Geriyani immediately."
(12 of 22) [ CW-1136/2015] Pursuant thereto, vide Annex.4 dated 29/7/2010, the Divisional Manager informed the petitioner as under:-
"Reg : Your Voluntary Retirement Application Dt.29/04/2010.
In reference to your voluntary retirement application Dt.29/04/2010, we here by inform you that the decision for accepting your application is kept pending by the Competent Authority.
This is for your information."
The said communication was received by the petitioner on 10/8/2010, which aspect has only been denied by the respondents by implication and it is claimed that petitioner was made known about the order on 28/29.7.2010. It is also an admitted fact that the petitioner continued to serve as Development Officer during the period 2010 till the date of his superannuation on 28/10/2016 i.e. during the pendency of the present writ petition.
In between, on 15/7/2014 the petitioner again in continuation of his earlier prayer seeking voluntary retirement dated 29/4/2010 requested for accepting the same, which reqeust was responded by letter dated 14/8/2014 (Annex.6) and since August, 2012 a sum of Rs.15,000/- per month was being recovered from the salary of the petitioner.
Based on the conduct of the petitioner, a fervent plea has been raised by the respondents that conduct of the petitioner amounts to waiver of his plea seeking voluntary retirement.
A bare look at the sequence of events gives credence to the submission made by the respondents pertaining to waiver on the (13 of 22) [ CW-1136/2015] part of the petitioner, wherein, the petitioner himself has indicated in the writ petition (para 9) that he was under the bonafide impression that unless and until the notice of voluntary retirement is accepted by the competent authority, he cannot retire from service and that the said impression was on the basis of wrong advise. However, the said plea regarding bonafide impression based on wrong advise cannot be accepted inasmuch as when the petitioner filed the present writ petition on 28/1/2015, at least sometime from before the said date the petitioner became aware about the purported correct legal position qua his application for voluntary retirement, however, he continued to serve the respondents till the date of his superannuation. The amount was being recovered from petitioner's salary since August, 2012 and if the plea raised by the petitioner had substance, post his alleged automatic voluntary retirement, no recovery could have been made, however, the petitioner continued to be a party to the said recovery and between the period 2010 to 2015 the petitioner chose not to question the deductions and did not raise any plea about automatic acceptance of his voluntary retirement, which conduct by itself, is sufficient to infer waiver on his part qua the plea now sought to be raised in the present writ petition.
The Hon'ble Supreme Court in the case of O.P. Swarnakar (supra) while dealing with the issue of waiver laid down as under:-
"114. However, it is accepted that a group of employees accepted the ex gratia payment. Those who accepted the ex gratia payment or any other benefit under the Scheme, in our considered opinion, could not have resiled therefrom.
(14 of 22) [ CW-1136/2015]
115. The Scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand."
The principle in the case of O.P.Swarnakar (supra) was reiterated and applied in the case of S.Ranveer Singh Bawa (supra), wherein, it was observed as under:-
".....Therefore, the principle of estoppel extensively discussed by this Court in the case of Bank of India vs. O.P.Swarnakar applies to the facts herein. The conduct of Respondent 1 indicates his knowledge about payments in his accounts; that he never objected to such payments and that he had appropriated the amounts for his benefit. Therefore, he cannot resile from the Scheme."
Similarly, in the case of Cauvery Coffee Traders (supra), the Hon'ble Supreme Court laid down as under:-
"34. A party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
35. Thus, it is evident that the doctrine of election is based on the rule of estoppel- the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."
So far as the judgments in the case of Dr. Ashok Kumar Maheshwari (supra) and Raj Kumar (supra) cited by the learned counsel for the petitioner are concerned, the same pertain to principles of promissory estoppel, which is not the case here as (15 of 22) [ CW-1136/2015] the plea raised pertains to waiver on the part of petitioner on account of his conduct over a period of six years.
So far as the submissions made by learned counsel for the petitioner with regard to delay and the judgments cited to indicate that if the delay does not cause disturbance to others or affect their rights, the delay itself may not be fatal and that the benefit to the petitioner can be restricted on account of such delay, has apparently no application to the facts of the present case.
In view of the above, the conduct of the petitioner is sufficient to infer waiver on his part insofar as the rights, if any, arising out of the application filed by him seeking voluntary retirement is concerned and, therefore, the challenge laid by the petitioner to the orders dated 29/7/2010 (Annex.4) and 14/8/2014 (Annex.6) cannot be sustained.
Coming to the merits of the plea raised by the petitioner, two issues arise for consideration as to whether keeping the application pending would amount to refusal in terms of sub- clause (2) of Clause 30 of the Pension Scheme and whether passing of the order dated 28/7/2010 by the Deputy General Manager (Annex.R/4) is sufficient to comply with the stipulation of Clause 30 and/or whether its receipt by the petitioner within the period of 90 days is necessary.
A look at the order dated 28/7/2010 (Annex.R/4) indicates that the competent authority had decided to keep the decision pending for accepting the voluntary retirement and vide letter dated 29/7/2010 (Annex.4) the decision was forwarded to the (16 of 22) [ CW-1136/2015] petitioner indicating that the decision for accepting his application is kept pending by the competent authority.
A bare look at sub-clause (2) of Clause 30 indicates that it specifically requires that there has to be acceptance of the application for voluntary retirement by the appointing authority. Since it provides by positive language of requiring acceptance, therefore, the expression 'refuse' used in the proviso has to be read to mean that it is sufficient if the communication (within 90 days of the notice period) communicates the non-acceptance of the application for voluntary retirement, as such the word 'refuse' used in Clause 30 (2) would mean non-acceptance in view of the language in question and not that the communication must use the expression 'refuse/refusal'.
A look at the communication Annex.4 shows that there is nothing in the said communication indicating the acceptance of the voluntary retirement, on the other hand the same specifically mentions that request is still pending i.e. there is no acceptance and, therefore, stating that the application for voluntary retirement is kept pending is essentially stating its non-acceptance and once the communication is read as non-acceptance to the request/application for voluntary retirement, the same would suffice to take the case of the petitioner out of the deemed retirement in terms of proviso to Clause 30 (2).
Second issue regarding the requirement of communication/receipt within the period of 90 days requires consideration inasmuch as though the order by the competent (17 of 22) [ CW-1136/2015] authority was passed/issued within the period of 90 days, the same was delivered to the petitioner after 90 days.
Strong reliance has been placed by the learned counsel for the petitioner on the judgment of Hon'ble Supreme Court in the case of S.K.Singhal (supra), wherein, insofar as relevant, it has been laid down as under:-
"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 effects automatically on the expiry of the period specified in the notice. If, however, as in B.J.Shelat case and as in Sayed Muzaffar Mir case, the authority concerned is empowered to withhold permission to retire if certain conditions exist, viz, in case the employee is under suspension or in case a departmental inquiry is pending or is contemplated, the mere pendency of the suspension or departmental inquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on expiry of the period specified. What is further needed is that the authority concerned must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in B.J.Shelat case and in Sayed Muzaffar Mir case before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non-communication of acceptance should be treated as amounting to withholding of permission."
(Emphasis supplied) The Hon'ble Supreme court while relying and quoting from the judgment in the case of B.J.Shelat (supra) observed that it was necessary to communicate the decision of refusal of permission before the expiry of the notice period.
In the case of B.J.Shelat (supra), Hon'ble Supreme Court after noticing the submissions of the parties inter alia observed as under:-
(18 of 22) [ CW-1136/2015] "8............For the proviso to become operative it is necessary that the Government should not only take a decision but communicate it to the Government servant.
It is not necessary that the communication should reach the Government servant. As held by this Court in State of Punjab v. Khemi Ram it will be sufficient if such an order is sent out and goes out of control of the appointing authority before the relevant date. After referring to the earlier decisions, the Court held that the actual knowledge by the Government servant of an order of dismissal may perhaps become necessary because of the consequences which the decision in the State of Punjab v. Amar Singh Harika contemplated but an order of suspension when once issued and sent out to the concerned Government servant must be held to have been communicated no matter when he actually received it. The question as to when the order should be deemed to have been communicated is not relevant in this case as admittedly the order of suspension was not communicated before the date of superannuation.
9. Mr. Patel next referred us to the meaning of the word "withhold" in Webster's Third New International Dictionary which is given as "hold back" and submitted that the permission should be deemed to have been withheld if it is not communicated. We are not able to read the meaning of the word "withhold" as indicating that in the absence of a communication it must be understood as the permission having been withheld.
10. It will be useful to refer to the analogous provision in the Fundamental Rules issued by the Government of India applicable to the Central Government servants. Fundamental Rule 56(a) provides that except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty- eight years. Fundamental Rule 56(j) is similar to Rule 161(aa)(1) of the Bombay Civil Services Rules conferring an absolute right on the appropriate authority to retire a Government servant by giving not less than three months notice. Under Fundamental Rule 56(k) the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to sub-rule 56(k) states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. Thus under this Fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso where under the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of Rule 161(2)(ii) and the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government servant (19 of 22) [ CW-1136/2015] its decision to withhold permission to retire on one of the grounds specified in the proviso."
(Emphasis supplied) The principle laid down in the case of B.J.Shelat (supra), as quoted hereinabove, clearly indicates that though taking a decision and communicating it to the employee is necessary, it is not necessary that the communication should reach the Government servant and it will be sufficient if the order is sent out and goes out of control of the appointing authority before the relevant date and said judgment was followed in the case of S.K.Singhal (supra) and, therefore, the observations made in the judgment in the case of S.K.Singhal (supra) regarding communicating the order to the employee before the expiry of the notice period can only be read in the context that the order is sent out and goes out of control of the appointing authority before the relevant date and its reaching the employee is not necessary.
In view thereof, the submissions made by counsel for the petitioner based on the judgment in the case of S.K.Singhal (supra) have no substance.
Similarly, in the case of Qimat Rai Gupta (supra) again based on the judgment of Khemi Ram relied on in the case of B.J.Shelat case (supra), it was laid down as under:
"25. The question, however, in our opinion, stands concluded by a three-Judge Bench of this Court in M/s M.M. Rubber and Co., Tamil Nadu (supra), wherein Ramaswami, J. speaking for the Bench succinctly stated the law thus :
(SCC p.477, para 12) "12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of (20 of 22) [ CW-1136/2015] limitation prescribed therefor. The order or decision of such authority comes into force or, becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time."
It was further held : (SCC p.479, para 18) "18. Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo moto power over the subordinate authorities' orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision."
26. A distinction, thus, exists in the construction of the word 'made' depending upon the question as to whether the power was required to be exercised within the period of limitation prescribed therefor or in order to provide the person aggrieved to avail remedies if he is aggrieved thereby or dissatisfied therewith. Ordinarily, the words 'given' and 'made' carries the same meaning.
27. An order passed by a competent authority dismissing a Government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika but an order placing a Government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram). What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the (21 of 22) [ CW-1136/2015] provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient for bringing an end-result to a status or to provide a person an opportunity to take recourse of law if he is aggrieved thereby; the order is required to be communicated.
28. The Division Bench of the High Court, in our opinion, proceeded on a wrong premise insofar as it misconstrued and misinterpreted the word 'made' in the context of sub- section (4) of Section 126 of the Act opining that the power can be misused by the Commissioner. The Division Bench, with respect, failed to notice that there exists a presumption that the official act is presumed to have been done in regular course of business. There also exists a presumption that a statutory functionary would act honestly and bona fide.
29. We are, therefore, are not in a position to persuade ourselves to follow the line of reasoning adopted by the Division Bench of the High Court that unless the order is communicated, it should be deemed to have not been made."
Again in a recent judgment in the case of R.K.B.K.Ltd. (supra) the Hon'ble Supreme Court reiterated the said aspect.
In view of the above discussion, though taking a decision/passing of the order and the same going out of the control of appointing authority within a period of 90 days is necessary from stopping the proviso pertaining to deemed voluntary retirement to come into force, its actual delivery or reaching the incumbent within the said period of 90 days is not necessary.
In the present case, there is no dispute that decision was taken by the competent authority not to accept the voluntary retirement on 28/7/2010 and merely because the decision dated 28/7/2010 (Annex.R/4) was sent to the petitioner vide letter dated 29/7/2010 (Annex.4) and was purportedly received by the (22 of 22) [ CW-1136/2015] petitioner on 10/8/2010 beyond the period of 90 days from the date of seeking voluntary retirement, it cannot be said that the petitioner shall be deemed to have voluntary retired w.e.f. 28/7/2010, as claimed by him.
In view of the above discussion, on account of waiver on the part of the petitioner and even on merits, the petitioner is not entitled to any relief. There is no substance in the writ petition and the same is, therefore, dismissed.
(ARUN BHANSALI)J. baweja