Orissa High Court
Bhupendra Kumar Mohanty vs State Of Odisha on 6 January, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.31236 of 2023
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
***
Bhupendra Kumar Mohanty Aged about 52 years Son of Jaganmohan Mohanty Resident at Quarter No. 304 Asiana Apartment Shivashakti Nagar Berhampur, Ganjam. ... Petitioner.
-VERSUS-
1. State of Odisha Represented through The Additional Secretary Department of MSME Odisha Bhubaneswar District: Khordha.
2. Directorate of Export Promotion and Marketing Represented through Director Office of Directorate of Export Promotion and Marketing, 1st Floor Raptani Bhawan BDA Commercial Complex Near Indradhanu Market Nayapalli, Bhubaneswar.
District: Khordha ... Opposite parties.
W.P.(C) No.31236 of 2023 Page 1 of 107Counsel appeared for the parties:
For the Petitioner : M/s. Sambit Rath, S.K. Rout, B.K. Mishra, M.K. Das, Advocates For the Opposite parties : Mr. Shantanu Das, Additional Standing Counsel P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 20.12.2024 :: Date of Judgment : 06.01.2025 J UDGMENT MURAHARI SRI RAMAN, J.--
Assailed here in this writ petition the Office Order No.4215-- II EMET-15/2023, dated 16.09.2023 of the Director of the Directorate of Export Promotion and Marketing, whereby the petitioner has been allowed to retire from Government service voluntarily with effect from 30.09.2023 (Annexure-6), purported to have been passed in pursuance of Office Order No.5825-- MSME-FE-FE-0026-2015/MS&ME, dated 11.08.2023 (Annexure-6A) under the provisions of Rule 42 of the Odisha Civil Services (Pension) Rules, 1992.
1.1. Challenge has also been made to rejection of Grievance Petition dated 18.09.2023 in connection with withdrawal of voluntary retirement notice vide W.P.(C) No.31236 of 2023 Page 2 of 107 Letter No.6957-- MSME-FE-FE-0026-2015/MSME, dated 29.09.2023 (Annexure-6A).
1.2. Craving to allow him to be reinstated in the Government service and continue till he attains the age of superannuation, the petitioner has made the following prayers:
"It is, therefore, prayed that this Hon‟ble Court may graciously be pleased to admit this writ petition and issue rule nisi calling upon the opposite parties to show cause and if they fail to show cause or show insufficient cause, then issue appropriate writ(s), order(s), direction(s) directing the opposite parties:
A) To quash the impugned Order dated 16.09.2023, at Annexure-6 which states that vide Order dated 11.08.2023 the petitioner‟s request for voluntary retirement has been accepted;
B) To quash the Order dated 29.09.2023 and 11.08.2023 at Annexure-6A Series:
C) Further, direct to allow the petitioner to continue in the service till he attains the age of retirement;
And may pass any other/further order(s), as this Hon‟ble Court may deem fit in the interest of justice and equity.
And for this act of kindness, the petitioner as in duty bound shall ever pray."
Facts as narrated in the writ petition:
W.P.(C) No.31236 of 2023 Page 3 of 1072. The facts as adumbrated by the writ petitioner deserve to be referred to for the purpose of deciding the issues raised in the writ petition.
2.1. The petitioner, having joined as a Laboratory Assistant under the opposite party No.2-Directorate of Export Promotion and Marketing ("DEPM", for brevity) by Order dated 10.10.1991, was promoted to the post of Scientific Assistant on 05.05.2005 and subsequently he was promoted to the post of Assistant Director (Inspection) vide Order dated 22.10.2020.
2.2. Having completed around 31 years of service, citing that he has been working as Senior Scientific Officer (in-Charge) in the Testing Laboratory at Balasore with effect from 29.10.2020, he was placed to discharge duties as Senior Scientific Officer (in-Charge) of Testing Laboratory, Berhampur for four days in a week with effect from 16.06.2023 by DEPM Office Order dated 12.06.2023 and in-Charge of Testing Laboratory at Balasore for two days in a week, the petitioner made application for voluntary retirement vide Letter dated 03.07.2023 addressing to the Principal Secretary of the Micro, Small and Medium Enterprise Department, ("MSME", for short) through opposite party No.2 specifying his willingness for voluntarily retire from service with effect from 31.10.2023 (afternoon);W.P.(C) No.31236 of 2023 Page 4 of 107
however, without indicating curtailment of such notice period.
2.3. While matter was thus, he made an application for withdrawal of his application seeking voluntary retirement with effect from 31.10.2023 by an application dated 16.09.2023, sent via e-mail to the DEPM at [email protected] at 04.59 p.m. and the opposite party No.1-MSME Department at secy- [email protected] at 05.05 p.m. and also sent the said document by way of speed post, citing reason that sanction of Modified Assured Career Progression has been under consideration by the Government and to cause enquiry on irregularities which were pointed. On receiving the application for withdrawal of voluntary retirement, the Senior Scientific Officer (in-Charge) forwarded the same to the Director, DEPM-opposite party No.2 by Letter No.411-VTLBE-02/2020/TLB, dated 16.09.2023.
2.4. Even though said application for withdrawal of voluntary retirement was communicated to all concerned including the Appointing Authority, the opposite party No.2 at 12.10 p.m. on 18.09.2023 by way of e-mail communicated that the petitioner has been allowed to retire with effect from 30.09.2023. The text of the Office Order is reproduced:
W.P.(C) No.31236 of 2023 Page 5 of 107"Directorate of Export Promotion and Marketing :
1st Floor : Raptani Bhawan : BDA Commercial Complex : Near Indradhanu Market : Nayapalli : Bhubaneswar-15 Tel. No.0674-2552675 Fax No.2555268, e-mail:[email protected] *** Office Order No. 4215-- IIEMET-15/2023/EPM, dated 16.09.2023 In pursuance of the Office Order No.5825/MSME, dated 11.08.2023 of MSME Department, Government of Odisha, Bhubaneswar, Shri Bhupendra Kumar Mohanty, Assistant Director (Inspection), Directorate of Export Promotion and Marketing, Odisha, Bhubaneswar has been allowed to retire from Government service voluntarily with effect from 30.09.2023 (afternoon) on personal ground in pursuance of Rule 42 of the Odisha Civil Services (Pension) Rules, 1992.
Sri Abhimanyu Majhi, Joint Director (Inspection) will remain in-Charge of Senior Scientific Officer, Testing Laboratory, Balasore and Sri Chandan Kumar Mati, Assistant Director (Inspection) will remain in-Charge of Senior Scientific Officer, Testing Laboratory, Berhampur, with effect from 01.10.2023 in addition to their own duties until further orders.
Sd/- 13.09.2023 Director *** Memo No.4218/EPM, dated 16.09.2023 Copy forwarded to Sri Bhupendra Kumar Mohanty, Assistant Director (Inspection) of Directorate of EP&M, Odissa, Bhubaneswar for information and necessary W.P.(C) No.31236 of 2023 Page 6 of 107 action. He is informed to submit his pension papers in the prescribed form along with other relevant documents to this Directorate for availing his retirement dues as applicable.
Sd/- 13.09.2023 Director"
2.5. Aggrieved by such Order dated 16.09.2023 accepting the resignation of the petitioner after receipt of application on 16.09.2023 for withdrawal of application for resignation from service intending voluntary retirement with effect from 31.10.2023, the petitioner approached the MSME Department with Grievance Petition dated 18.09.2023 which came to be rejected on 29.09.2023 and the same was communicated by Letter No.6957-- MSME-FE-FE- 0026-2015/MSME, dated 29.09.2023 enclosing therewith copy of the following Office Order dated 11.08.2023, which had never been communicated to the petitioner before:
"Government of Odisha MS&ME Department Office Order No.5825--MSME-FE-FE-0026-2015/MS&ME, Bhubaneswar, dated 11.08.2023 After careful consideration of the voluntary retirement notice of Sri Bhupendra Kumar Mohanty, Assistant Director (Inspection), Directorate of Export Promotion and Marketing, Odisha, Bhubaneswar, Government W.P.(C) No.31236 of 2023 Page 7 of 107 have been pleased to allow him to retire from Government service voluntarily with effect from 30.09.2023 (afternoon) on personal ground in pursuance of Rule 42 of Odisha Civil Services (Pension) Rules, 1992.
Consequent upon his voluntary retirement, he will be entitled to all retirement benefits as per provisions contained under Odisha Civil Services (Pension) Rules, 1992.
By Order of the Governor Sd/-
(S.C. Mandal) Additional Secretary to Government.
Memo No.5826/MSME, dated 11.08.2023 Copy forwarded to Sri Bhupendra Kumar Mohanty, Assistant Director (Inspection), Directorate of Export Promotion and Marketing, Odisha, Bhubaneswar for information and necessary action.
Sd/-
Additional Secretary to Government."
2.6. Seeking indulgence of this Court by quashing the Office Order dated 11.08.2023 as communicated along with Order dated 29.09.2023 of the MSME Department rejecting the grievance petition in connection with withdrawal of voluntary retirement (Annexure-6A series) and Office Order dated W.P.(C) No.31236 of 2023 Page 8 of 107 16.09.2023 of the Director, DEPM (Annexure-6), the petitioner has knocked the doors of this Court invoking extraordinary jurisdiction under Article 226/227 of the Constitution of India.
Counter affidavit of the opposite party No.1:
3. The opposite party No.1 having chosen not to file response independently to the contents and the averments of the writ petitioner, merely sought to adopt the counter affidavit filed by the opposite party No.2.
Counter affidavit of the opposite party No.2:
4. Answering the contention of the petitioner that before lapse of date of effect given in the notice for voluntary retirement, i.e., 31.10.2023, the resignation could not have been accepted, it is affirmed that Rule 42 of the Odisha Civil Services (Pension) Rules, 1992 ("Pension Rules", for convenience) does not restrict or restrain the appropriate authority of the Government from allowing voluntary retirement before expiry of three months from the date of application/notice. The Rule mandates the employee to give a notice of at least three months in their application for voluntary retirement.W.P.(C) No.31236 of 2023 Page 9 of 107
4.1. Refuting the averment of the petitioner that prior to acceptance of resignation vide Office Order dated 16.09.2023, withdrawal notice was sent via e-mail on the same day, it is asserted by the opposite party No.2 that after the order being passed to hand over the charges of Testing Laboratory, the petitioner submitted his representation for withdrawal of his application for voluntary retirement.
4.2. The voluntary retirement of the petitioner was accepted by Government in MSME Department and intimated to the Directorate of EPM on 11.08.2023, i.e., before receipt of his representation for withdrawal of application for voluntary retirement. Further, on 16.09.2023 an order was issued by Directorate to hand over the charges of the Testing Laboratory of Balasore and Berhampur to the Officers of the Directorate. Though the petitioner was well aware of acceptance of the application for voluntary retirement by the Government in MSME Department he has falsely averred that he was intimated for the first time regarding acceptance of such application for voluntary retirement on 16.09.2023.
4.3. After submission of the application for voluntary retirement the appointing authority, i.e., Government in MSME Department, has rightly accepted the W.P.(C) No.31236 of 2023 Page 10 of 107 application with effect from 30.09.2023. After submission of the application for voluntary retirement the applicant cannot claim the date of acceptance of the application for voluntary retirement. The petitioner has avoided to receive the Government order regarding acceptance of the application for voluntary retirement though he was well aware of its acceptance by the Government in MSME Department and Director has personally instructed him to submit his pension papers and receive the Government orders on 19.08.2023.
Rejoinder affidavit of the petitioner:
5. Refuting the assertions of the opposite parties, the petitioner has filed rejoinder affidavit by denying the fact that no proof has been furnished to demonstrate that they had discussed about the acceptance of voluntary retirement with the petitioner. It is on record to suggest that the Director of EPM had accepted the application for voluntary retirement only on 16.09.2023, which was communicated to the petitioner on 18.09.2023. Therefore, it is suggested that the affirmation of the opposite party No.2 that a copy of Order dated 11.08.2023 accepting voluntary retirement was being asked to the petitioner for acknowledging receipt is far from truth.W.P.(C) No.31236 of 2023 Page 11 of 107
5.1. Whereas the petitioner has specified that the retirement would take effect from 31.10.2023, the opposite parties are not vested with power to curtail such notice period. It is only after completion of 20 years of service the petitioner submitted the application for voluntary retirement on 03.07.2023 by specifying the effective date on 31.10.2023. Therefore, it is asserted by the petitioner that the opposite parties were not justified in curtailing said period unilaterally and curtailing the date of retirement cannot be treated as voluntary retirement. In the scheme of voluntary retirement, it is the employee who has the right to seek for curtailment of notice period of three months.
Hearing:
6. Since pleadings are completed and exchanged between the counsel for the respective parties, on consent this matter is taken up for final disposal at the stage of admission.
6.1. Heard Sri Sambit Rath, learned Advocate for the petitioner and Sri Shantanu Das, learned Additional Standing Counsel for the opposite parties.
6.2. Hearing being concluded, the matter was reserved for preparation and pronouncement of judgment.
Rival contentions and submissions:
W.P.(C) No.31236 of 2023 Page 12 of 1077. Sri Sambit Rath, learned Advocate appearing for the petitioner submitted that the provisions of Rule 42 of the Pension Rules does not vest power on the opposite parties to curtail the period of notice as specified by the employee. Had the Order dated 11.08.2023 by virtue of which MSME Department is stated to have accepted the application for voluntary retirement was existing on the date of withdrawal of application by the petitioner on 16.09.2023, such fact could have been communicated to him by way of recognized mode of service. Therefore, it is pleaded that such Order dated 11.08.2023 cannot be said to be an effective order having force.
7.1. Sri Sambit Rath, learned Advocate has placed reliance on K.L.E. Society Vrs. Dr. R.R. Patil, (2002) 5 SCC 278;
AIR India Express Limited Vrs. Captain Gurdashan Kaur Sandhu, (2019) 17 SCC 129; M.S.P. Dora Vrs. Odisha State Road Transport Corporation, 2006 (I) OLR 240 to buttress his argument that application for voluntary retirement could not have been accepted before lapse of three months‟ notice period as envisaged under Rule 42 of the Pension Rules, 1992.
7.2. He would submit that though the Office Order dated 16.09.2023 is stated to have been signed on 13.09.2023 by the Director, DEPM, was W.P.(C) No.31236 of 2023 Page 13 of 107 communicated via e-mail on 18.09.2023 (12:10 Hours), which is indicative of the fact that the same has been passed after receipt of application for withdrawal of voluntary retirement on 16.09.2023 sent via e-mail at 17:05 Hours. The falsity of claim of the opposite parties can be discerned on bare glance at the Office Order dated 16.09.2023 of the Director, DEPM and Office Order dated 11.08.2023 of the MSME Department, copy of which was communicated to the petitioner along with Letter dated 29.09.2023 of the MSME Department rejecting the Grievance Petition filed with regard to acceptance of application contemplating voluntary retirement.
7.3. It is strenuously argued by Sri Sambit Rath, learned Advocate that when the provisions contained in Rule 42 of the Pension Rules have prescribed safeguards to the employee seeking voluntary retirement, it cannot be construed that the Authority had the discretionary power to grant voluntary retirement by waiving off three months‟ notice period. There cannot be relaxation or waiver of the three months‟ notice period and the authorities are not vested with the power to curtail the date of effect of retirement suggested by the petitioner in the application for voluntary retirement. Such notice period is meant for the Government servant (petitioner) for "cooling off" and reflection.
W.P.(C) No.31236 of 2023 Page 14 of 107Such three months‟ period would also give opportunity to the employer to make arrangements for search out substitute. As is apparent from the Office Order dated 16.09.2023, the arrangements have been made to hand over the charge to the Joint Director and the Assistant Director who would remain in-Charge of Testing Laboratories of Balasore and Berhampur respectively. It gives sufficient indication that no authority/official has been posted. Therefore, he urged that there was no point in rejecting the grievance of the petitioner since no one else is appointed in his place.
7.4. Amplifying his argument further Sri Sambit Rath, learned Advocate with all humility submitted that whereas the petitioner has been serving the Organisation since 10.10.1991 and having been promoted to the post of Assistant Director (Inspection) from the post of Scientific Assistant on 22.10.2020, the opposite parties-authorities should have been compassionate enough by considering the plight of the petitioner who was required to discharge duties as Senior Scientific Officer in-Charge of Testing Laboratory, Berhampur (for four days in a week) and Testing Laboratory, Balasore (for two days in a week). The distance between Balasore and Berhampur is around 400 kilometres. The undue haste shown by the W.P.(C) No.31236 of 2023 Page 15 of 107 opposite parties in accepting the application for voluntary retirement before the period stipulated by the petitioner, i.e., 31.10.2023 smacks arbitrariness and such fanciful action on the part of the employer (opposite parties) resulted in adverse civil consequences. Therefore, he would submit that the opposite parties while rejecting the Grievance Petition should have extended an opportunity of hearing to explain the difficulties faced and reasons for applying for voluntary retirement.
7.5. It is fervently submitted that the impugned Orders being devoid of reasons, are liable to be set aside.
8. Sri Shantanu Das, learned Additional Standing Counsel appearing for the opposite parties placed heavy reliance on the counter affidavit and submitted that there is no restriction put upon the authority concerned to accept the application for voluntary retirement before the specified period by the petitioner. Emphasis is laid on the fact that the petitioner earlier made such application(s) in the years 2015 and 2020 on the ground of illness, which were allowed to be withdrawn before the lapse of notice period. Nonetheless, the petitioner has submitted yet another application for voluntary retirement on 03.07.2023 specifying the date of effect of retirement on W.P.(C) No.31236 of 2023 Page 16 of 107 31.10.2023. Therefore, there being no prohibition on the employer to consider and accept the application for voluntary retirement before lapse of three months as the petitioner has remained indecisive to choose between to avail "voluntary retirement" or to carry on with the assigned job. He has been inconsistent in his decision. Vehemently contesting the matter in order to justify the action of the opposite parties in accepting the application for voluntary retirement, referring to paragraph 15 of the counter affidavit filed by the opposite party No.2, Sri Shantanu Das, learned Additional Standing Counsel submitted that the petitioner has been "in a habit of requesting the authorities in the name of voluntary retirement application stating that he is physically and mentally not sound to continue in the Government services from the time and again". Therefore, he would submit that the Office Order dated 11.08.2023 depicting acceptance of application for voluntary retirement, copy of which though was offered to him for acknowledgement of receipt in a meeting held on 19.08.2023 in the Directorate of EPM, the petitioner consciously avoided to receive the same. Hence, no infirmity in acceptance of voluntary retirement application without waiting for notice period could have been attributed to the opposite parties.
W.P.(C) No.31236 of 2023 Page 17 of 107Analysis and discussions:
9. The following undisputed facts needs to be outlined for consideration of the issues raised:
(a) Application/notice dated 03.07.2023 addressed to Principal Secretary, MSME Department seeking voluntary retirement on completion of 20 years of Government service in terms of Rule 42 of the Odisha Civil Services (Pension) Rules, 1992, has been submitted by the petitioner by specifying:
"Therefore, I request you kind approval on my willingness for voluntary retirement from service to the State Government with effect from 31.10.2023 (AN) for which I shall be obliged."
(b) On 16.09.2023, before lapse of three months‟ notice period envisaged under Rule 42 of the Pension Rules, 1992, the petitioner withdrew the application/notice for voluntary retirement citing consideration of Modified Assured Career Progression by the Government on completion of 30 years of service.
(c) On the very date, Office Order No.4215--
IIEMET-15/2023/EPM, dated 16.09.2023 stated to have been signed on 13.09.2023 by the Director, DEPM, was issued.
W.P.(C) No.31236 of 2023 Page 18 of 107(d) Grievance Petition with regard to withdrawal of application/notice for voluntary retirement filed by the petitioner has come to be rejected by Letter No.6957-- MSME-FE-FE-0026-2015/ MSME, dated 29.09.2023.
10. It is perceived from the record that: though the opposite party No.1 has claimed to have passed Order dated 11.08.2023 accepting the application/notice for voluntary retirement, did not choose to file counter affidavit on merit of the matter, rather filed affidavit affirming to have adopted counter affidavit filed by the opposite party No.2. In the opinion of this Court the opposite party No.1 would have been the appropriate party to assert whether such an order has been communicated and served on the petitioner.
10.1. The assertion of the opposite party No.2 at paragraph 11 of the counter affidavit that "the petitioner has attended the meeting of the Directorate on 19.08.2023 where he was intimated regarding acceptance of his voluntary retirement application and required to receive the copy of the Government order from the Directorate. Sri Mohanty was well aware of acceptance of his voluntary retirement application and intentionally avoided to receive the copy of the Government orders of acceptance of the voluntary W.P.(C) No.31236 of 2023 Page 19 of 107 retirement" has been strongly refuted by the petitioner by way of rejoinder affidavit "the petitioner was aware about the acceptance of VRS is completely frivolous and baseless" and the same has no force in law.
10.2. It is specific stance of the petitioner as is revealed from paragraph 11 of the writ petition that "the withdrawal application for voluntary retirement has been made much prior to the Order of retirement taking effect, i.e. 30.09.2023. Even the original Order dated 11.8.2023 wherein the acceptance has been made has also not been communicated." and it is stated to have come to his knowledge when the Grievance Petition qua withdrawal of application intending voluntary retirement was rejected and communicated vide e-mail dated 29.09.2023.
10.3. This Court appreciating rival contentions and submissions observed that the record is silent about the fact with respect to service of copy of Order dated 11.08.2023 of MSME Department on the petitioner. No material is placed by the opposite parties to evince that the copy of such Order had ever been served prior to passing of Order dated 29.09.2023 rejecting the Grievance Petition.
10.4. Furthermore, the record lacks evidence to show that as to why it took more than one month from W.P.(C) No.31236 of 2023 Page 20 of 107 11.08.2023 for the opposite party No.2 to make Order dated 16.09.2023 (though stated to have been signed by the Director, DEPM on 13.09.2023). It is inquisitive enough to observe that even as the opposite party No.2 has admitted to have received "the withdrawal of voluntary retirement application of the petitioner from the Office of the Senior Scientific Officer, Testing Laboratory, Balasore" in the Office of the Directorate of EPM at 4:59 P.M. on 16.09.2023 (vide paragraph 10 of counter affidavit), there is no explanation whatsoever placed before this Court neither by way of affirmation nor submissions as to why it took around six days to communicate the signed Order dated 13.09.2023 to the petitioner via e-mail on 18.09.2023.
10.5. It seems after receipt of application for withdrawal of voluntary retirement stated to be effective from 31.10.2023 (afternoon) on 16.09.2023, the opposite party No.2 has sprung into action only to deprive the petitioner his legitimate right to withdraw his application/notice before lapse of three months from the date of its making.
10.6. Before communication of Order dated 16.09.2023 is completed by service via e-mail on 18.09.2023, the petitioner has effectively served application seeking to withdraw the application/notice for voluntary W.P.(C) No.31236 of 2023 Page 21 of 107 retirement. Such withdrawal application is also before lapse of three months from the date of its submission on 03.07.2023.
11. A glance at Office Order dated 11.08.2023 of the Additional Secretary of MSME Department (Annexure- 6A) and Office Order dated 16.09.2023 of the Director of EPM (Annexure-6) would indicate that the opposite parties have exercised power under Rule 42 of the Pension Rules, 1992 to curtail the notice period of three months.
11.1. To examine whether such a power is vested in the opposite parties, it is expedient to extract the provisions contained in Rule 42 of the Pension Rules, which stand thus:
"42. Voluntary Retirement on completion of 20 years Qualifying Service.--
(1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service.
(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the Appointing Authority.
NOTE.--
W.P.(C) No.31236 of 2023 Page 22 of 107Such 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 have launched in a Court of Law against the Government servant concerned.
If it is proposed to accept the notice of voluntary retirement in such cases, approval of the Government should be obtained:
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 that of expiry of the said period.
(3) (a) A Government servant desirous of retiring under sub-rule (1) may make a request in writing to the Appointing Authority to accept notice of voluntary retirement of less than three months giving reason therefor.W.P.(C) No.31236 of 2023 Page 23 of 107
(b) On receipt of a request under clause (a), the Appointing Authority subject to the provision of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if he is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the Appointing Authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.
(4) This rule shall not apply to a Government servant who retires from Government 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.
Explanation.--
For the purpose of the rule the expression "Appointing Authority" shall means the authority which is competent to make appointment to the service or post from which Government servant seeks voluntary retirement.
(5) The qualifying service as on the date of intended retirement of the Government servant retiring under this rule, with or without permission shall be increased by the period not exceeding five years, subject to the condition that the total W.P.(C) No.31236 of 2023 Page 24 of 107 qualifying service rendered by the Government servant does not any case exceed twenty five years and it does not take him beyond the date of superannuation with effect from 01.12.2008. (Vide Finance Department Notification No.24142/F., dated 04.09.2015).
(6) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as specified under Rule 48 and the increase not exceeding five years in his qualifying service not entitle him to any notional fixation of pay for the purposes of calculating pension and gratuity."
11.2. Meticulous reading of said provisions contained in Rule 42 of the Pension Rules would transpire that:
(a) A Government servant, having completed 20 years of service, desirous of voluntarily retire from service can make an application to the Appointing Authority;
(b) The notice of voluntary retirement does require acceptance by the Appointing Authority, which is granted generally except under certain circumstances enumerated.
(c) Such notice for voluntary retirement shall be made "not less than three months in writing". To seek curtailment such period of three months, W.P.(C) No.31236 of 2023 Page 25 of 107 scope is given to the Government servant (but not the Appointing Authority) vide Rule 42(3).
(d) Right to refuse voluntary retirement has been conferred on the Appointing Authority. As per Rule 42(3)(b), the Appointing Authority is given power to relax subject to satisfaction that the curtailment of period of notice will not cause any administrative inconvenience.
11.3. The instant case is not one of refusal of the Appointing Authority to grant voluntary retirement. Under such fact-situation, proviso to clause (b) of Note appended to sub-rule (2) of Rule 42 would have application. Under said proviso it is laid down 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.
11.4. Ergo, it is accepted as argued by Sri Sambit Rath, learned Advocate that it is at the option of the petitioner the notice period can be curtailed but not otherwise. Such curtailment can be allowed, of course, at the discretion of the Appointing Authority on consideration of request for the curtailment of the period of notice of three months on merits. If the W.P.(C) No.31236 of 2023 Page 26 of 107 Appointing Authority is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the Appointing Authority may relax the requirement of notice of three months. In other words, the Appointing Authority has no option but to wait till notice period elapses, if he does not refuse voluntary retirement. In the case at hand, as is manifest from notice dated 03.07.2023 seeking voluntary retirement (Annexure-1) that the petitioner has specified his willingness to retire voluntarily with effect from 31.10.2023. From the date of 03.07.2023 said effective date for retirement is more than three months.
11.5. Significant it is to take cognizance of the expression "give notice of not less than three months in writing to the Appointing Authority" as employed in Rule 42(1) of the Pension Rules. Acceptance of the application/ notice dated 03.07.2023 before lapse of three months or the date specified by the petitioner intending to retire voluntarily, in essence, frustrates the purport of Rule 42 or renders the avowed object of Rule 42 of the Pension Rules unworkable. It is maintained that the requirement as to "not less than three months‟ in writing" in Rule 42 is a matter of policy and safeguard for the employee. Noteworthy to state that the expressions "within three months" and "not less than W.P.(C) No.31236 of 2023 Page 27 of 107 three months" are two quite different aspects. Taking into consideration the expression as incorporated in Rule 42 of the Pension Rules, the period for the requisite notice as "not less than three months" is willed by rule-making authority and this obligation is to be construed as absolute. The span of notice is, thus, essence of the mandate. The necessity of notice and the span of notice both are integral to the scheme of the provisions contained in Rule 42. The provisions contained in the said Rule cannot, therefore, be split up into essential and non-essential components, the whole of it being mandatory.
11.6. Meaning of "not less than" has been understood as "Complete days; exclusive of named first or last days". See, Concise Law Dictionary, by P.G. Osborn, published by Sweet and Maxwell, 1927."
11.7. Where the statute provides that notice of "seven clear days" is required to be given, it would exclude the date of issue of the notice and the date of meeting. [Vide, Shanti Dei Vrs. State of Odisha, 2006 (II) OLR 470 (Ori); Paresh Nath Kuanr Vrs. State of Odisha, 2006 (II) OLR 390; Sarat Padhi Vrs. State, 1988 (I) OLR 80 (Ori) = 65 (1988) CLT 122 (Ori) (FB)].
11.8. The expression "not less than three months" can be better comprehended from the following discussion W.P.(C) No.31236 of 2023 Page 28 of 107 contained in Bharti Gupta Ramola Vrs. Commissioner of Income Tax, 2012 SCC OnLine Del 2080:
"10. We are conscious that in some decisions the expression "not less than" has been interpreted to mean a clear period, excluding the date of service (see Chambers Vrs. Smith, 67 Revised Reports 231, In re Railways Sleepers Supply Company, (1885) 29 Ch.D. 204 (3), Mcqueen Vrs. Jackson, 1903 (2) KB 163, etc.). However, the said cases were where the legislature had fixed time limit, which should not be less than the prescribed days for complying with the requirements of law or to furnish reply. In such circumstances, it has been held that in computation of time, fraction of a day should not be reckoned (see In re Hector Whalling Limited, 1935 All England Reporter, 302 (1936 Ch.
208). Even under the Income Tax Act, 1922, the stipulation not less than 30 days in Section 22(2) was interpreted in Commissioner of Income Tax Vrs. Ekbal and Company, AIR 1945 Bom 316 to mean 30 clear days. This expression was distinguished from the expression within 30 days, which means within two points of time.
Similar views have been expressed in N.V.R. Nagappa Chettiar Vrs. Madras Race Club, AIR 1951 Mad 831, Anokhmal Bhurelal Vrs. Chief Panchayat Officer Rajasthan, Jaipur, AIR 1957 Raj 388, Smt. Haradevi Vrs. State of Andhra Pradesh, AIR 1957 AP 229.
11. In T.M. Lall Vrs. Gopal Singh, AIR 1963 P&H 378, Rule 4 of the All India Bar Council (First W.P.(C) No.31236 of 2023 Page 29 of 107 Constitution) Rules, 1961 had come up for consideration. In the said rule, the expressions "not less than" and "not more than" were used. Because of the use of the said words, it was held that the provision referred to complete or entire days intervening between the two terminal days. Accordingly, fraction of day should not be taken into consideration.
12. However, in English language many words have different meanings and a word can be used in more than one sense. Every dictionary gives several meanings to each word. We cannot mechanically apply every meaning given in the dictionary and have to choose an appropriate meaning that the word may carry in the context in which it is used in the legislation. It is the context which determines the meaning of the word (See P.V. Indiresan (2) Vrs. Union of India, (2011) 8 SCC 441).
13. It is appropriate to refer to the decision of the Supreme Court in Commissioner of Income Tax Vrs. Braithwaite and Company Limited, (1993) 201 ITR 343. In the said case, the assessee had obtained a term loan of Rs.50 lacs from a bank vide agreement dated 1st August, 1964. The loan was to be paid in five installments ending on 31 st July, 1971. Question arose whether the repayment as stipulated under the agreement was during a period of "not less than" seven years as per the proviso to Rule 1(b) of the second schedule of the Companies (Profits) Surtax Tax Act, 1964. Reversing the judgment of the High Court and accepting the stand of the assessee, it was held W.P.(C) No.31236 of 2023 Page 30 of 107 that a fraction of a day would be counted to determine and decide whether the loan was for a period of "less than seven years" or "more than seven years". It was held as under:
„We are of the view that on a plain reading of the proviso to Rule 1(v), Second Schedule to the Act, it is clear that in order to claim the benefit of the said provision, the borrowed money has to be repaid during the period of more than seven years. The only interpretation which can be given to the expression "during a period of not less than seven years" is that the said period should go beyond seven years. The reasoning is simple. The period of seven years would not be complete till the last "minute" or even the last "second" of the said period are counted. In other words, till the last minute of the seven-year period is completed, the period remains less than seven years. In the present case, the agreement was entered into on August 1, 1964. The last instalment was to be paid on July 31, 1971. The seven years were to complete at 12 p.m. (between the night of July 31, 1971, and August 1, 1971). Even if the loan was paid back at 11.59 p.m. on July 31, 1971, the period would be less than seven years by one minute. It is, therefore, obvious that the period of "not less than seven years" can only mean till after the completion of seven years. We, therefore, hold that the repayment of the borrowed amount during the period of seven years does not mean repayment "during a period of not less than seven years". To claim the benefit under rule 1(v) of the W.P.(C) No.31236 of 2023 Page 31 of 107 Second Schedule to the Act the repayment of the borrowed money must be during a period which is more than seven years.
We find support in the view taken by us in the following cases. In Ramanasari Vrs. Muthusami Naik, (1906) ILR 30 Mad 248, Section 18 of the Madras Rent Recovery Act, 1865 (VIII of 1865), required that, in fixing the day of sale, not less than seven days must be allowed "from the time of the public notice and not less than 30 days from the date of distraint". The sale was held on the 13th February, but the notice was published on 6th February. It was held that "not less than"
means the same as "clear" and seven whole days must elapse between the day of the notice and the day fixed for sale. In Railway Sleepers Supply Co., In re (1885) LJ 54 Ch 720; (1885) 29 Ch 204, it was held that the expression "not less" than a given number of days means "clear days". It was held that the expression "not less" indicates "a minimum".‟
14. Bombay High Court in Ravi Vrs. Collector, Wardah, (2008) 3 Maharashtra Law Journal 758 had examined the expression within a period "not more than one month" used in Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The said words in question stipulated and envisaged that an application should be filed within a period of not more than one month "from" the date of notification of the election result. In view of the word "from", it was held that the first date had to W.P.(C) No.31236 of 2023 Page 32 of 107 be excluded in view of Section 10 of the Bombay General Clauses Act, 1904."
11.9. In M.N. Abdul Rawoof Vrs. Pichamuthu, (2000) 3 SCC 121 in the context of explaining the connotation of expression "not less than" it has been observed as follows:
"7. As we read the said proviso it appears to us that the expression "not less than Rs.1200" means that the minimum amount of rental value, if it is Rs.1200, then the person would be covered by the proviso and would not be regarded as a debtor. In Stroud‟s Judicial Dictionary, 5th Edn., at p. 1700 it is noted that:
„Where a statute prescribes a penalty for an offence of „not less‟ than a stated amount, that is the minimum penalty that justices can impose, notwithstanding that the section, prescribing the penalty, says that the offender „shall be liable‟ thereto; and the power to mitigate given by the Summary Jurisdiction Act, 1879 (C. 49) S. 4, was in such a case qualified so that mitigation could not go below such minimum (Osborn Vrs. Wood Bros., (1897) 1 QB 197 = 66 LJQB 178 = 76 LT
60)‟.
8. In Raja Kulkarni Vrs. State of Bombay, (1953) 2 SCC 552 = AIR 1954 SC 73 = 1954 SCR 384 a question arose regarding the recognition of a trade union. Section 13 of the Bombay Industrial Regulation Act, 1946 provided that a representative union should have a membership of W.P.(C) No.31236 of 2023 Page 33 of 107 "not less than 15 per cent of the total number of employees". While interpreting this provision it was observed at SCR p. 390 that:
„The statute lays down the minimum qualification of 15 per cent of membership to enable the union to be called a „representative union‟.***‟ After laying down the test of not less than 15 per cent it was perfectly reasonable "not to allow any other union such as the appellants to interpose in a dispute on behalf of the textile workers when they did not command the minimum percentage or when their membership fell below the prescribed percentage".
The view which was expressed in Raja Kulkarni case, (1953) 2 SCC 552 = AIR 1954 SC 73 = 1954 SCR 384 clearly was that when the statute uses the expression not less than a particular figure then that figure is the minimum.
9. In K.P. Varghese Vrs. ITO, (1981) 4 SCC 173 this Court was required to interpret Section 52 of the Income Tax Act, 1961 where in sub-section (2) the Income Tax Officer would get jurisdiction to acquire a capital asset if the fair market value of that asset exceeded the full value of consideration "by an amount of not less than 15 per cent of the value so declared". Analysing this provision it was held that according to sub-section (2) the difference between the fair market value and the consideration declared will have to be 15 per cent or more to enable the Income Tax Officer to exercise jurisdiction under that section. To the W.P.(C) No.31236 of 2023 Page 34 of 107 same effect is the decision of this Court in Karnail Singh Vrs. Darshan Singh, 1995 Supp(1) SCC 760. Section 4 of the Punjab Gram Panchayat Act, 1952 enables the Government to declare any village or group of contiguous villages to constitute one or more sabha area if they had a population of "not less than 500". Interpreting this provision it was held that what was required for the exercise of powers under the said Section 4 was that there should be a minimum population of 500. In other words, the expression population of not less than 500 was interpreted to mean that the minimum population should be 500.
10. The High Court has referred to the decision of this Court in Pioneer Motors (P) Ltd. Vrs. Municipal Council Nagercoil, AIR 1967 SC 684 = (1961) 3 SCR 609 where the expression was, which was being interpreted, "not being less than one month". This Court held that in order that a notice should be valid the expression not being less than one month would mean that there must be notice of 30 clear days. This would be possible only if the 1st and the last day on which the notice is issued is excluded. Rather than helping the respondent in our opinion the said decision fortifies the view which we have taken namely, that the period specified is the minimum period. Not less than one month meant that 30 clear days‟ notice had to be given and it is only in order to ensure that 30 clear days‟ notice is given that, basing on Section 9 of the General Clauses Act, it was observed that the 1st and the last dates should be excluded.
W.P.(C) No.31236 of 2023 Page 35 of 10711. Similarly, in CIT Vrs. Braithwaite & Co. Ltd., (1993) 2 SCC 262 where the Court had to consider the expression "of a period not less than 7 years"
it was held that the period cannot be even one minute less than 7 years. The ratio of this decision is not different than the decision of this Court in Karnail Singh, 1995 Supp (1) SCC 760, K.P. Varghese, (1981) 4 SCC 173 and Raja Kulkarni, (1953) 2 SCC 552 = AIR 1954 SC 73 = 1954 SCR
384. To the same effect is the decision of this Court in Saketh India Ltd. Vrs. India Securities Ltd., (1999) 3 SCC 1."
11.10. The term "month" can be couched from the following discussions contained in Rameshchandra Ambalal Joshi Vrs. State of Gujarat, (2014) 1 SCR 1112:
"15. The first question which calls for our answer is the meaning of the expression "month": whether it would mean only a period of 30 days and, consequently, whether six months would mean a period of 180 days. The word "month" has been defined under Section 3(35) of the General Clauses Act to mean a month reckoned according to the British calendar. Therefore we cannot ignore or eschew the word „British calendar‟ while construing "month" under the Act. Accordingly, we are of the opinion that the period of six months cannot be calculated on 30 days in a month basis. Therefore, both the modes of calculation suggested by Mr. Ahmadi do not deserve acceptance and are rejected accordingly.W.P.(C) No.31236 of 2023 Page 36 of 107
16. The next question which calls for our answer is the date from which six months‟ period would commence. In case of ambiguity with reference to the date of commencement, Section 9 of the General Clauses Act can be pressed into service and the same reads as follows:
„9. Commencement and termination of time.--
(1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word „from‟, and, for the purpose of including the last in a series of days or any other period of time, to use the word „to‟.
17. From the judgment of this Court in the case of Sivakumar Vrs. Natarajan 2009 (9) SCR 386 = (2009) 13 SCC 623 and as quoted in the preceding paragraph of this judgment, it is evident that this Court recorded its agreement to a limited extent that „in cases where there is an ambiguity or suspicion with reference to the date of commencement of period of limitation‟ „Section 9 of the General Clauses Act can be pressed into service.‟ We would hasten to add that this Court in Sivakumar (supra) did not give nod to the following proposition enunciated by the Kerala High Court in K.V. Muhammed Kunhi Vrs. P. Janardhanan, 1998 CRL.L.J. 4330.
„3 *** But in the instant case before me, Section 138 proviso (a) is involved which is so clear W.P.(C) No.31236 of 2023 Page 37 of 107 (as extracted above) that the date of limitation will commence only from the date found in the cheque or the instrument.‟
18. In the case of K.V. Muhammed Kunhi (supra) the cheque was dated 17.11.1994 and that was presented on 17.05.1995, and in this background the Court observed as follows:
„5 *** When on the footing of the days covered by the British calendar month the period of limitation in the case on hand is calculated, the cheque ought to have been presented in the Bani for collection on or before 16.05.1995. But in this case, as pointed out above the cheque had been presented for collection only on 17.05.1995, which is clearly barred by limitation.‟
19. In this case, six months‟ period expired a day prior to the corresponding month. In the case in hand, no such day falls in the corresponding month and therefore the last day would be last date of the immediate previous month.
***
21. Proviso (a) to Section 138 of the Act uses the expression „six months from the date on which it is drawn‟. Once the word „from‟ is used for the purpose of commencement of time, in view of Section 9 of the General Clauses Act, the day on which the cheque is drawn has to be excluded.
22. This Court, relying on several English decisions, dealt with the issue of computation of time for the W.P.(C) No.31236 of 2023 Page 38 of 107 purpose of limitation extensively in Haru Das Gupta Vrs. State of West Bengal, (1972) 1 SCC 639 wherein Paragraph 5 states as follows:
„5. These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded, (see Goldsmiths Company Vrs. The West Metropolitan Railway Co. (1904 KB 1 at 5). This rule was followed in Cartwright Vrs. Maccormack, (1963) 1 All E.R. 11, where the expression „fifteen days from the date of commencement of the policy‟ in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren Vrs. Dawson Bentley and Co. Ltd., (1961) 2 QB 135, a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the· date of the cause of action, was excluded. (See also Stewart Vrs. Chadman, (1951) 2 KB 792 and In re North, Ex parte Wasluck (1895) 2 QB 264.) Thus. as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first W.P.(C) No.31236 of 2023 Page 39 of 107 day and to include the last day. [See Halsbury‟s Laws of England (3rd ed.) Vol.37, pp.92 and 95.] There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here.‟***"
11.11. In Skoda Auto Volkswagen India Pvt. Ltd. Vrs.
Commissioner (Appeals), 2021 SCC OnLine Bom 349 the meaning of "month" has been explained as follows:
"36. As per sub-section (35) of Section 3 of the General Clauses Act, the word „month‟ has been defined to mean a month reckoned according to the British calendar.
37. In the case of In re : V.S. Metha, AIR 1970 AP 234, Andhra Pradesh High Court was considering the provisions of Section 106 of the Factories Act, 1948 as per which no court shall take cognizance of any offence punishable under the said act unless complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of the inspector. In that context, Andhra Pradesh High Court examined the meaning of the word „month‟ : whether it would mean 30 days in which case the complaint should be filed within 90 days from the date of knowledge. After referring to Section 3(35) of the General Clauses Act, it was held that the word „month‟ would mean a calendar month and by extension the term „three months‟ as appearing in section 106 of the Factories Act, W.P.(C) No.31236 of 2023 Page 40 of 107 1948 would only mean a period of three calendar months.
38. Again, in Bibi Salma Khatoon Vrs. State of Bihar, (2001) 7 SCC 197 = AIR 2001 SC 3596, Supreme Court dealt with the provisions of section 16(3) of the Bihar Land Reforms Act, 1961 which provided that benefits under the said act could be availed of if an application is made within three months of the date of registration of the documents of transfer. Posing the question as to what was meant by the word „month‟, Supreme Court held that British calendar would mean Gregorian calendar. It was held that when the period prescribed is a calendar month running from any arbitrary date, the period of one month would expire upon the day in the succeeding month corresponding to the date upon which the period starts.
39. Supreme Court in State of H.P. Vrs. Himachal Techno Engineers, 2010 AIR SCW 5088 considered the period of limitation prescribed under sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996. While Section 34 relates to application for setting aside arbitral award, sub-section (3) thereof prescribes the period of limitation for filing of such application which is three months. In that context, Supreme Court examined the meaning of the word „month‟ and held that a month does not refer to a period of 30 days but refers to the actual period of a calendar month. It was clarified that if the month is April, June, September or November, the period comprising the month will be 30 days; if the month W.P.(C) No.31236 of 2023 Page 41 of 107 is January, March, May, July, August, October or December, the month will comprise of 31 days; but if the month is February, the period will be 29 days or 28 days depending upon whether it is a leap year or not. After referring to Section 3(35) of the General Clauses Act, it was held that the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of some months being longer than the rest. Therefore, it was held that when the period prescribed is three months (as contrasted from 90 days) from a specific date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending on the months, it may mean 90 days or 91 days or 92 days or 89 days."
11.12. With the above conspectus of meaning of the term "month" and the expression "not less than", it is noticed that the opposite parties have demonstrably committed error in having regard to the expression "by giving notice of not less than three months in writing to the Appointing Authority" as employed in sub-rule (1) of Rule 42 of the Pension Rules, 1992. Moreover, reading sub-rule (3) read with sub-rule (1) ibid. would make it unambiguous that the petitioner-Government servant may seek for curtailment of the period of notice of three months and it is the satisfaction of the Appointment Authority to allow or not to allow. It does require no authority to cite that if a statute provides W.P.(C) No.31236 of 2023 Page 42 of 107 for a thing to be done in a particular manner, then it has to be done in that manner alone and in no other manner.
11.13. As a precept it may be relevant to state that whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. Reference may be had to State of Jharkhand Vrs. Ambay Cements, (2005) 1 SCC 368.
11.14. Whereas it is undisputed that the petitioner has submitted the application/notice dated 03.07.2023 intending to retire voluntarily by specifying therein the effective date as "31.10.2023" (Annexure-1) which is "not less than three months in writing", and the petitioner has not requested the Authority for curtailment of such notice period of three months, the opposite parties could not have exercised power suo motu and accepted the said notice for voluntary retirement before lapse of such period stipulated in the notice. Doing so attracted violation of provisions W.P.(C) No.31236 of 2023 Page 43 of 107 contained in sub-rule (1) read with sub-rule (3) of Rule 42 of the Pension Rules.
11.15. Further reading of sub-rule (2) of Rule 42 would make the position more clarified that the notice of voluntary retirement "given under sub-rule (1) shall require acceptance by the Appointing Authority". Appended to said sub-rule (2) is a note with proviso which unequivocally speaks that where the Appointing Authority does not refuse to grant 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.
11.16. To reiterate, the case at hand is not a case where the Government servant sought for curtailment of notice period nor is it a case of refusal to grant permission. Had the instant case been on account of consideration of curtailment of notice period at the behest of Government servant, in terms of sub-rule (3) of Rule 42 a discretion is vested in the Appointing Authority to relax such period subject to "satisfaction" that the curtailment of period of notice will not cause any administrative inconvenience. As observed in Gazi Sududdin Vrs. State of Maharashtra, (2003) 7 SCC 330 "satisfaction" of the authority can be interfered with if the satisfaction recorded is demonstratively perverse W.P.(C) No.31236 of 2023 Page 44 of 107 based on no evidence, misreading of evidence or which a reasonable man could not form or that the person concerned was not given due opportunity resulting in prejudice. To that extent, objectivity is inbuilt in the subjective satisfaction of the authority. In the case hand the opposite parties have not placed any material to show that the Government servant has made request to curtail period of notice and the opposite parties have recorded "satisfaction" as to causing "administrative inconvenience" as is required under sub-rule (3) of Rule 42.
11.17. Therefore, necessary corollary would be that when the petitioner has given notice of not less than three months in writing to the Appointing Authority intending to retire voluntarily from a specified date, i.e., 31.10.2023, there was no occasion for the opposite parties to accept the application for voluntary retirement prior to lapse of such period stipulated. Therefore, the impugned Orders in Annexure-6 and Annexure-6A run contrary to provisions of Rule 42.
12. It has been contended by the opposite parties that on earlier occasions request of the petitioner for withdrawal of application for voluntary retirement in the years 2015 and 2020 were conceded and again he has made similar request in the year 2023 having W.P.(C) No.31236 of 2023 Page 45 of 107 submitted application for voluntary retirement, which is not acceded to. Refuting such contention, it is argued by learned counsel for the petitioner that there can be no semblance of factual aspect and each context has to be judged on its own perspective. It would suffice to say that each case or each occasion is to be treated on its own merits. Therefore, the scope of consideration of factual aspect with respect to earlier occasions cannot have bearing on the present context qua application/notice dated 03.07.2023. Hence, it may be apposite to hold that when there is no request made by the petitioner to waive or curtail the three months‟ notice period, passing orders accepting the application for voluntary retirement prior to elapse of the period specified in the notice dated 03.07.2023 would be contrary to the purport of Rule 42 of the Pension Rules. As is apparent from the application for consideration of voluntary retirement with effect from 31.10.2023 that the petitioner was to discharge his duty for two days at Balasore and four days at Berhampur in a week (by travelling around 400 kilometres-- one side). As it appears the withdrawal of such notice was on account of the fact that his Modified Assured Career Progression has been under consideration by the Government. The opposite parties, therefore, should have allowed such W.P.(C) No.31236 of 2023 Page 46 of 107 withdrawal as they could not treat the applications for voluntary retirement submitted in the years 2015 and 2020 as if they are continuation of the application dated 03.07.2023.
12.1. Relevant here to take note of the decision rendered by the Hon‟ble Supreme Court of India in the context of voluntary retirement in K.L.E. Society Vrs. Dr. R.R. Patil, (2002) 5 SCC 278, wherein following is the observation:
"11. The Rule speaks of two authorities, namely, the appointing authority of the employee and the authority competent to approve the appointment of the employee concerned. No particular form of giving the notice is specified in the Rule except that it must be in writing and should be addressed to the appointing authority. As far as the period of notice is concerned, a minimum three months‟ period is specified subject to both the appointing authority and the approving authority being satisfied that the employee's case merited a lesser notice period. In other words, as far as the authorities themselves are concerned they cannot on their own curtail the notice period. Once the right is exercised by the employee, he can withdraw the notice to retire provided he:
(i) makes a request to withdraw within the "intended date of retirement"; and
(ii) is in a position to establish that there is a material change in the circumstances by W.P.(C) No.31236 of 2023 Page 47 of 107 reason of which the notice to retire voluntarily had been given in the first place.
12. If there is no such withdrawal of notice, the request for voluntary retirement can be accepted under clause (j) subject to two exceptions neither of which is relevant to this case. Finally, an order of voluntary retirement can be passed by the appointing authority subject again to the fulfillment of two preconditions under clauses (l) and (m) of the sub-rule viz. the specific prior approval of the approving authority and the verification in consultation with the Accountant- General that the employee has put in qualifying service of 20 years.
13. In answer to the first question, the learned counsel for the appellant contended that under clause (j) of sub-rule (5) of Rule 50 of the Scheme, a notice of voluntary retirement is to be generally accepted in the absence of a valid notice of withdrawal. It is contended that the withdrawal of the respondent‟s request of voluntary retirement was not in terms of clause (i) in that it did not even claim any change in the circumstances for which voluntary retirement had been sought by him.
14. To our mind irrespective of the validity of the notice of withdrawal the appellant‟s order accepting the respondent‟s request for voluntary retirement cannot be sustained primarily because the first notice given by the respondent on 02.12.1994 for voluntary retirement could not be acted upon.
W.P.(C) No.31236 of 2023 Page 48 of 10715. As noted above, Rule 50(5) provides for a minimum period of notice unless explicitly curtailed under clause (h) of Rule 50(5). The respondent had not specified an intended date of retirement in the first notice. He had asked for "permission to take voluntary retirement at the earliest" but there was no plea for curtailing the notice period. Therefore in the context of Rule 50(h), the "earliest" would have been after three months viz. 2nd March. The importance of the notice period lies in the fact that the retirement if accepted would be effective on the expiry of that period. However, no action was taken by the appellant to retire Respondent-1 then. On the other hand, after the notice period expired, Respondent-1 was not only continued in service but vested with additional obligations. Respondent-1 did not refuse nor did he protest this. He continued in service well after the expiry of the first notice period. Both the appellant and Respondent-1 by their conduct clearly treated the first notice as infructuous and inoperative. Had the appellant treated the first notice of retirement as the operative one, when the impugned order of acceptance was issued, Respondent-1 would have been treated as retired with effect from the expiry of the first notice period.
16. When Respondent-1 submitted the second notice on 05.07.1995 no reference was made to the earlier notice dated 02.12.1994. Besides there could not have been two applications for voluntary retirement. By accepting the second application on 05.07.1995 the first application must in any event W.P.(C) No.31236 of 2023 Page 49 of 107 be treated as having been superseded. Respondent-1‟s letter dated 05.07.1995 was in fact a fresh application for voluntary retirement. Here too Respondent-1 did not specify the intended date of retirement. He only requested that he may be permitted to take retirement "at the earliest". The non-specification of a date coupled with the fact that no request was made for curtailment of the notice period, meant that the date of his voluntary retirement could only be on or after 05.10.1995. During this period, Respondent-1 sent the letter dated 19.07.1995 requesting that the notice of voluntary retirement dated 05.07.1995 be kept in abeyance. This was not a letter for withdrawing the notice. It was a request that the notice may be kept in abeyance in the sense not considered immediately thus postponing the intended date of retirement. Assuming that the letter dated 19.07.1995 was a notice of withdrawal and that the appellant was right in discarding it, nevertheless the appellant was bound to allow the notice period of three months calculated from 05.07.1995 to expire before issuing an order accepting the notice. Admittedly the appellant did not do that. It issued the impugned order within 15 days.
17. The appellant purported to treat the notice dated 05.07.1995 as a continuation of the first notice dated 02.12.1994 for the purpose of calculating the notice period. It could not have done that for the reasons stated earlier. The appellant not having waited for three months from 05.07.1995, the order accepting Respondent-
W.P.(C) No.31236 of 2023 Page 50 of 1071‟s request for voluntary retirement was premature and amounted to unilateral curtailment of the notice period by the appellant contrary to the Scheme and more particularly Rule 50(5)(c) thereof. The impugned order cannot but be held to be bad."
12.2. In such view of the matter, the contention of the opposite parties that the consideration of earlier applications for voluntary retirement and withdrawal thereof has significant consequence is liable to be repelled.
13. The petitioner having made application dated 03.07.2023 for voluntary retirement specifying date of retirement as "31.10.2023" (notice period of "not less than three months" in writing to the Appointing Authority), the same is in consonance with sub-rule (1) of Rule 42. The petitioner could very well withdraw the same before lapse of such period as specified.
13.1. It has already been observed that before elapse of minimum notice period of three months, the opposite parties could not have acted upon the same and allowed the petitioner to retire with effect from 30.09.2023. Such an action is incoherent to the requirement under the provisions of Rule 42 of the Pension Rules. In the first place, Office Order dated 11.08.2023 of the MSME Department (Annexure-6A) W.P.(C) No.31236 of 2023 Page 51 of 107 could not be said to have been valid as it is apparently made without waiting for minimum period of three months‟ notice period. In the second place, no sanctity can be attached to the Office Order dated 16.09.2023 of the Director, DEPM (Annexure-6) inasmuch as the same is made prior to minimum notice period of three months. This apart, for another reason the Orders in Annexures-6 and 6A cannot be held to be legal as before the orders are stated to have been communicated on 18.09.2023 via e-mail to the petitioner (Annexure-6), he had already communicated application of withdrawal of notice dated 03.07.2023 (Annexure-3).
13.2. At this juncture, it may be apposite to refer to Air India Express Limited Vrs. Captain Gurdashan Kaur Sandhu, (2019) 17 SCC 129, wherein it has been observed as follows:
"11. The circumstances under which an employee can withdraw the resignation tendered by him and what are the limitations to the exercise of such right, have been dealt by this Court in a number of decisions.
11.1. In Jai Ram Vrs. Union of India, AIR 1954 SC 584, the Government servant concerned was to attain age of 55 years on 26.11.1946. He applied on 07.05.1945 for leave preparatory to retirement in terms of Fundamental Rule 86. The request was W.P.(C) No.31236 of 2023 Page 52 of 107 finally allowed and he was given 6 months‟ leave which was to expire on 25.05.1947. Ten days before such expiry i.e. on 16.05.1947, he sent an intimation that he would resume his duties which request was rejected. The submission that the age of retirement was 60 years was rejected by this Court. The submission that in terms of Rule 56(b)(i) of Chapter IX of the Fundamental Rules, if found efficient, he could have continued till he attained the age of 60 years, was rejected. It was observed that when a public servant himself expresses his inability to continue in service any longer and seeks permission for retirement, the required exercise in terms of said Rule 56(b)(i) to decide whether to continue him beyond the age of 55 years was rightly not undertaken and the age of retirement for him would be 55 years. In the context whether he could apply for resuming duties on 16.05.1947, it was observed by the Constitution Bench of this Court : (AIR pp. 586-87, para 7) „7. *** It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so long as he continues in service and not after it has terminated.
As we have said above, the plaintiff's service ceased on 27.11.1946; the leave, which was allowed to him subsequent to that date, was W.P.(C) No.31236 of 2023 Page 53 of 107 post-retirement leave which was granted under the special circumstances mentioned in FR 86. He could not be held to continue in service after 26.11.1946, and consequently it was no longer competent to him to apply for joining his duties on the 16.05.1947, even though the post-retirement leave had not yet run out. In our opinion, the decision [Union of India Vrs. Jai Ram, 1952 SCC OnLine P&H 52 = ILR (1952) 1 P&H 562 of the Letters Patent Bench of the High Court is right and this appeal should stand dismissed.‟ 11.2. In Raj Kumar Vrs. Union of India, (1968) 3 SCR 857 = AIR 1969 SC 180, an officer belonging to the Indian Administrative Service tendered resignation and addressed a letter to the Chief Secretary to the Government of Rajasthan on 30.08.1964 that it may be forwarded to the Government of India with remarks of the State Government. The State Government recommended that the resignation be accepted and on 31.10.1964 the Government of India requested the Chief Secretary to the State Government "to intimate the date on which the appellant was relieved of his duties so that a formal notification could be issued in that behalf".
Before the date could be intimated and formal notification could be issued, the officer withdrew his resignation by letter dated 27.11.1964. On 29.03.1965 an order accepting his resignation was issued. The challenge raised by the officer was rejected and the High Court held [Raj Kumar Vrs. Union of India, 1965 SCC OnLine P&H 187 = ILR (1966) 1 P&H 236] that the resignation W.P.(C) No.31236 of 2023 Page 54 of 107 became effective on the date the Government of India had accepted it. While dismissing the appeal, a Bench of three Judges of this Court observed : (AIR p. 182, paras 4-5) „4. The letters written by the appellant on 21.08.1964, and 30.08.1964, did not indicate that the resignation was not to become effective until acceptance thereof was intimated to the appellant. The appellant informed the authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance. On the plain terms of the letters, the resignation was to become effective as soon as it was accepted by the appointing authority. No rule has been framed under Article 309 of the Constitution which enacts that for an order accepting the resignation to be effective, it must be communicated to the person submitting his resignation.
5. Our attention was invited to a judgment of this Court in State of Punjab Vrs. Amar Singh Harika, AIR 1966 SC 1313 in which it was held that an order of dismissal passed by an authority and kept on its file without communicating it to the officer concerned or otherwise publishing it did not take effect as from the date on which the order was actually written out by the said authority; such an order could only be effective after it was communicated to the officer concerned or was otherwise published. The principle of that case has no application here.
W.P.(C) No.31236 of 2023 Page 55 of 107Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted. In the present case the resignation was accepted within a short time after it was received by the Government of India.
Apparently the State of Rajasthan did not immediately implement the order, and relieve the appellant of his duties, but the appellant cannot profit by the delay in intimating acceptance or in relieving him of his duties.‟ 11.3. In Union of India Vrs. Gopal Chandra Misra, (1978) 2 SCC 301 the issue for consideration was whether a High Court Judge, who had by letter in his own handwriting sent to the President W.P.(C) No.31236 of 2023 Page 56 of 107 intimated his intention to resign the office with effect from a future date would be competent to withdraw the resignation before the date had reached? The decisions in Jai Ram Vrs. Union of India, AIR 1954 SC 584 and Raj Kumar Vrs. Union of India, (1968) 3 SCR 857 = AIR 1969 SC 180 were considered and while dealing with the scope of clause (a) of the proviso to Article 217 of the Constitution, the Constitution Bench of this Court stated : Union of India Vrs. Gopal Chandra Misra, (1978) 2 SCC 301, SCC pp. 309-10, paras 20 &
22) „20. Here, in this case, we have to focus attention on clause (a) of the proviso. In order to terminate his tenure under this clause, the Judge must do three volitional things :
Firstly, he should execute a "writing under his hand". Secondly, the writing should be "addressed to the President". Thirdly, by that writing he should "resign his office". If any of these things is not done, or the performance of any of them is not complete, clause (a) will not operate to cut short or terminate the tenure of his office.
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22. It may be observed that the entire edifice of this reasoning is founded on the supposition that the "Judge" had completely performed everything which he was required to do under proviso (a) to Article 217(1). We have seen that to enable a Judge to terminate his term of office by his own unilateral act, he W.P.(C) No.31236 of 2023 Page 57 of 107 has to perform three things. In the instant case, there can be no dispute about the performance of the first two, namely : (i) he wrote a letter under his hand, (ii) addressed to the President. Thus, the first two pillars of the ratiocinative edifice raised by the High Court rest on sound foundations. But, is the same true about the third, which indisputably is the chief prop of that edifice?
Is it a completed act of resignation within the contemplation of proviso (a)? This is the primary question that calls for an answer. If the answer to this question is found in the affirmative, the appeals must fail. If it be in the negative, the foundation for the reasoning of the High Court will fail and the appeals succeed.‟ 11.4. The tenor and the effect of resignation were then considered in para 28 and it was held that the letter in question was merely an intimation or notice to resign the office on a future date and it was open to withdraw the resignation before the arrival of the indicated future date. The observations were : (Union of India Vrs. Gopal Chandra Misra, (1978) 2 SCC 301, SCC p. 311, para 28) „28. The substantive body of this letter (which has been extracted in full in a foregoing part of this judgment) is comprised of three sentences only. In the first sentence, it is stated:
W.P.(C) No.31236 of 2023 Page 58 of 107„I beg to resign my office as Judge, High Court of Judicature at Allahabad.‟ Had this sentence stood alone, or been the only content of this letter, it would operate as a complete resignation in praesenti, involving immediate relinquishment of the office and termination of his tenure as Judge. But this is not so. The first sentence is immediately followed by two more, which read:
„I will be on leave till 31.07.1977. My resignation shall be effective on 01.08.1977.‟ The first sentence cannot be divorced from the context of the other two sentences and construed in isolation. It has to be read along with the succeeding two which qualify it. Construed as a whole according to its tenor, the letter dated 07.05.1977, is merely an intimation or notice of the writer's intention to resign his office as Judge, on a future date viz. 01.08.1977. For the sake of convenience, we might call this communication as a prospective or potential resignation, but before the arrival of the indicated future date it was certainly not a complete and operative resignation because, by itself, it did not and could not, sever the writer from the office of the Judge, or terminate his tenure as such.‟ 11.5. The Court went on to state the principles as:
(Union of India Vrs. Gopal Chandra Misra, (1978) W.P.(C) No.31236 of 2023 Page 59 of 107 2 SCC 301, SCC pp. 314-15 & 317, paras 41 &
50) „41. The general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date can be withdrawn by him at any time before it becomes effective i.e. before it effects termination of the tenure of the office/post or the employment.
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50. It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a "prospective" resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office-tenure of the resigner. This general rule is equally applicable to government servants and constitutional functionaries. In the case of a government servant/or functionary/who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure W.P.(C) No.31236 of 2023 Page 60 of 107 terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office-tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal.‟ 11.6. As regards the applicability of the rule in Jai Ram Vrs. Union of India, AIR 1954 SC 584, it was stated: (Union of India Vrs. Gopal Chandra Misra, (1978) 2 SCC 301, SCC p. 317, para 49) „49. In our opinion, none of the aforesaid reasons given by the High Court for getting out of the ratio of Jai Ram Vrs. Union of India, AIR 1954 SC 584 is valid. Firstly, it was not a "casual" enunciation. It was necessary to dispose of effectually and completely the second point that had been canvassed on W.P.(C) No.31236 of 2023 Page 61 of 107 behalf of Jai Ram Vrs. Union of India, AIR 1954 SC 584. Moreover, the same principle was reiterated pointedly in 1968 in Raj Kumar Vrs. Union of India, (1968) 3 SCR 857 = AIR 1969 SC 180. Secondly, a proposal to retire from service/office and a tender to resign office from a future date for the purpose of the point under discussion, stand on the same footing. Thirdly, the distinction between a case where the resignation is required to be accepted and the one where no acceptance is required, makes no difference to the applicability of the rule in Jai Ram Vrs. Union of India, AIR 1954 SC
584.‟ 11.7. In Balram Gupta Vrs. Union of India, 1987 Supp SCC 228 the officer concerned was an accountant in the Photo Division of the Ministry of Information and Broadcasting. While holding that the matter was covered by the decisions of this Court in Raj Kumar Vrs. Union of India, (1968) 3 SCR 857 = AIR 1969 SC 180 and Union of India Vrs. Gopal Chandra Misra, (1978) 2 SCC 301, this Court considered the relevant guidelines and observed:
(Balram Gupta Vrs. Union of India, 1987 Supp SCC 228, SCC pp. 235-36, para 12) „12. In this case the guidelines are that ordinarily permission should not be granted unless the officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given.W.P.(C) No.31236 of 2023 Page 62 of 107
The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant‟s offer to retire and withdrawal of the same happened in such quick succession that it cannot be said that any administrative set-up or arrangement was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this the respondent is to blame and not the appellant.‟ *** 11.9. In Punjab National Bank Vrs. P.K. Mittal, 1989 Supp (2) SCC 175 a permanent officer in the bank sent a letter of resignation on 21.01.1986 in terms of Regulation 20 of PNB (Officers) Service Regulation, 1979, which was to become effective on 30.06.1986. By communication dated 07.02.1986, he was informed that his resignation was accepted with immediate effect. The W.P.(C) No.31236 of 2023 Page 63 of 107 resignation was withdrawn by the officer on 15.04.1986. The issue therefore arose in the context of said Regulation 20, whether the officer could withdraw the resignation. Regulation 20 was as under: *** 11.10. The submission that clause (2) of Regulation 20 and its proviso were intended only to safeguard the bank's interest and as such the bank could accept the resignation before the date when it was to come into effect was rejected by this Court in following terms: (Punjab National Bank Vrs. P.K. Mittal, 1989 Supp (2) SCC 175, SCC pp. 179-80, paras 7-8) „7. Dr Anand Prakash emphasises that as clause (2) and its proviso are intended only to safeguard the bank's interests they should be interpreted on the lines suggested by him.
We are of the opinion that clause (2) of the regulation and its proviso are intended not only for the protection of the bank but also for the benefit of the employee. It is common knowledge that a person proposing to resign often wavers in this decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out immediately. In most cases he would need a period of adjustment and hence like to defer the actual date of relief from duties for a few months for various personal reasons. Equally an employer may like to have time to make some alternative arrangement before relieving the resigning employee. Clause (2) is carefully worded keeping both these W.P.(C) No.31236 of 2023 Page 64 of 107 requirements in mind. It gives the employee a period of adjustment and rethinking. It also enables the bank to have some time to arrange its affairs, with the liberty, in an appropriate case, to accept the resignation of an employee even without the requisite notice if he so desires it. The proviso in our opinion should not be interpreted as enabling a bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation. We, therefore, agree with the High Court [Pradeep Kumar Mittal Vrs. Punjab National Bank, 1986 SCC OnLine Del 162] that in the present case the resignation of the employee could have become effective only on or about 21.04.1986 or on 30.06.1986 and that the bank could not have "accepted" that resignation on any earlier date. The letter dated 07.02.1986 was, therefore, without jurisdiction.
8. The result of the above interpretation is that the employee continued to be in service till 21.04.1986 or 30.06.1986, on which date his services would have come normally to an end in terms of his letter dated 21.01.1986. But, by that time, he had exercised his right to withdraw the resignation. Since the withdrawal letter was written before the resignation became effective, the resignation stands withdrawn, with the result that the respondent continues to be in the service of W.P.(C) No.31236 of 2023 Page 65 of 107 the bank. It is true that there is no specific provision in the regulations permitting the employee to withdraw the resignation. It is, however, not necessary that there should be any such specific rule. Until the resignation becomes effective on the terms of the letter read with Regulation 20, it is open to the employee, on general principles, to withdraw his letter of resignation. That is why, in some cases of public services, this right of withdrawal is also made subject to the permission of the employer. There is no such clause here. It is not necessary to labour this point further as it is well settled by the earlier decisions of this Court in Raj Kumar Vrs. Union of India, (1968) 3 SCR 857 = AIR 1969 SC 180, Union of India Vrs. Gopal Chandra Misra, (1978) 2 SCC 301 and Balram Gupta Vrs. Union of India, 1987 Supp SCC 228.‟
12. It is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. When would the resignation become effective may depend upon the governing service regulations and/or the terms and conditions of the office/post. As stated in paras 41 and 50 in Union of India Vrs. Gopal Chandra Misra, (1978) 2 SCC 301, "in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post" or "in the absence of a legal contractual or constitutional bar, a „prospective resignation‟ can be withdrawn at any time before W.P.(C) No.31236 of 2023 Page 66 of 107 it becomes effective". Further, as laid down in Balram Gupta Vrs. Union of India, 1987 Supp SCC 228, „If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter.‟ ***
15. In terms of the provisions of the CAR, the terms and conditions of appointment in the instant case specifically stated that the respondent would give six months‟ notice in case she desired to leave the services of the appellant.
16. The underlying principle and the basic idea behind stipulation of the mandatory notice period is public interest. It is not the interest of the employee which is intended to be safeguarded but the public interest which is to be subserved. It seeks to ensure that there would not be any last minute cancellation of flights causing enormous inconvenience to the travellers. It is for this reason that the pilot concerned is required to serve till the expiry of the notice period. The notice period may stand curtailed if NOC is given to the pilot concerned and the resignation is accepted even before the expiring of the notice period. It may, in a given case, be possible that the trained manpower to replace the pilot, who had tendered resignation, could be made available before the expiry of such notice period, in which case the employer is given a choice under Clause 3.7 of the CAR. Even in such eventuality, the guiding idea or parameter is public interest."
W.P.(C) No.31236 of 2023 Page 67 of 10713.3. It may deserve to have regard to the following observations of the Hon‟ble Supreme Court of India in the case of Indian Bank Vrs. Mahaveer Khariwal, (2021) 1 SCR 144:
"8. It is not in dispute that in the present case the employee submitted the voluntary retirement application on 21.01.2004. In the application itself, the employee requested for waiver of three months‟ notice and requested to deduct the salary amount of the notice period from out of the amounts payable to him by the employer on retirement. It is not in dispute and it cannot be disputed that the notice of voluntary retirement requires acceptance by the appointing authority. However, as per proviso to Sub-Regulation 2 of Regulation 29, in case 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. In the present case, on the 90th day vide communication dated 20.04.2004 the application of the employee for voluntary retirement was rejected without assigning any specific reasons and by observing that the employee is not eligible for voluntary retirement under Pension Regulations, 1995. The said communication was sent to the employee on the very date, i.e., 20.04.2004, however the same was received by the employee on 23.04.2004. The learned Single Judge dismissed the writ petition so far as challenge to the communication dated 20.04.2004 W.P.(C) No.31236 of 2023 Page 68 of 107 is concerned. However, on appeal, by the impugned judgment and order, the Division Bench has set aside the communication dated 20.04.2004 by which the request of the employee for voluntary retirement from the service of the employer came to be rejected. Therefore, the short question which is posed for the consideration before this Court is, whether the rejection of the request of the employee for voluntary retirement vide communication dated 20.04.2004 was legal and in consonance with Regulation 29 of the Pension Regulations, 1995 or not.
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10. On a fair reading of Regulation 29, it emerges that an employee is entitled to apply for voluntary retirement after he has completed 20 years of qualifying service. He can apply for voluntary retirement by giving notice of not less than three months in writing to the appointing authority (Regulation 29(1)). However, as per proviso to Sub- Regulation (1) of Regulation 29, Sub-Regulation (1) of Regulation 29 shall not apply to an employee who is on deputation or on study leave on abroad 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. The said proviso shall be dealt with and considered hereinbelow. It also appears that as per Sub-Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub- Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Subregulation (2), the appointing authority has W.P.(C) No.31236 of 2023 Page 69 of 107 to take a decision before the expiry of the period specified in the notice. It 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, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub-Regulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months‟ notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub-Regulation 3(b) provides that on receipt of a request for waiver of three months‟ notice as per Sub-Regulation 3(a), the appointing authority may, subject to the provisions of Sub-Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required W.P.(C) No.31236 of 2023 Page 70 of 107 to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months‟ notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub-Regulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub-Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated W.P.(C) No.31236 of 2023 Page 71 of 107 20.04.2004. We are in complete agreement with the view taken by the Division Bench.
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12. Now so far as the submission on behalf of the employer that the acceptance or non-acceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months‟ period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer-employee relationship."W.P.(C) No.31236 of 2023 Page 72 of 107
13.4. Observation of a Division Bench of this Court in M.S.P. Dora Vrs. Orissa State Road Transport, 2006 SCC OnLine Ori 73 = 101 (2006) CLT 281 = 2006 (I) OLR 240 may be apt to be referred to:
"7. Admittedly, Government on 21.9.2001 floated the Model Voluntary Retirement Scheme and on 10.10.2001 the petitioner submitted his offer to be included in the Scheme and take voluntary retirement from the services of the Corporation. The petitioner changed his mind and took a decision and on 20.12.2001 he submitted an application for withdrawal of option for voluntary retirement as there was no communication to him from the opposite parties within 30 days of his submission of application. On 7.3.2002 the O.P. No. 2 rejected petitioner‟s request for withdrawal of his application for voluntary retirement without assigning any reason. On 19.3.2002 the petitioner submitted representation giving all details therein and making a prayer to allow withdrawal of his voluntary retirement application, but no communication in that regard was received from the opposite parties. The petitioner was relieved from service with effect from 25.7.2002.
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14. As we have already indicated, it is not in dispute that the petitioner submitted his application for withdrawal of the voluntary retirement offer on 20.12.2001 and by that date there was no communication to the petitioner by the opposite W.P.(C) No.31236 of 2023 Page 73 of 107 parties that his application for voluntary retirement had already been accepted. Even at the time of communicating, the order of rejection of his application for withdrawal of his offer for voluntary retirement vide Annexure-4, it was not communicated that his proposal for voluntary retirement had already been accepted. In this connection, there is a clear mention in the writ petition that in Annexure-4 the rejection order, no reason whatsoever has been assigned. Be that as it may, as per the stipulation in the Clause 3.2 of the Scheme no communication had been made to the petitioner by the opposite parties regarding acceptance/rejection of his V.R. application within 30 days or even thereafter. As we find from the record, he was communicated with the order of his relief vide Annexure-7, the memo No. 19817 dated 25.7.2002 which he received on 26.7.2002. It is an admitted position that the petitioner on 20.12.2001 submitted his application for withdrawal of his voluntary retirement proposal and he had again after rejection of his aforementioned application made representation for withdrawal of his offer for voluntary retirement. It is the stand of the opposite parties 1 to 3 in their counter affidavit that the application of the petitioner dated 10.10.2001 had already been accepted on 19.10.2001 and since by the date of acceptance no application for withdrawal was pending and the same was received, later on, it was rejected. A stand has been taken in the counter affidavit and it was also urged before us that inference can be drawn that W.P.(C) No.31236 of 2023 Page 74 of 107 the petitioner had knowledge of the acceptance of his voluntary retirement proposal on the basis of his application as he was working as Accounts Officer in the Account Section of the Corporate Office and the Account Section was communicated to calculate the entitlements of the employees including the petitioner himself, individual communication to the employee concerned was not necessary. He also went to the extent of arguing that this communication for calculation of the entitlement was sufficient compliance of clause 3.2 of the Scheme which stipulates that the decision of the competent authority regarding acceptance or rejection should be communicated to the employee concerned within 30 days of the submission of the application. We fail to understand as to how such a proposition is being advanced on the face of specific stipulation in the aforesaid clause that the decision of the competent authority regarding acceptance or rejection should be communicated to the employee concerned. Learned counsel for the opposite parties, however, had to concede that there was no individual communication made to the petitioner regarding the acceptance of his voluntary retirement offer within 30 days of his making application and he was individually intimated only on 25.7.2002 that he was to be relieved on 25.7.2002/26.7.2002 on acceptance of his voluntary retirement proposal. There is no dispute over the fact that within the period from his filing of application for taking voluntary retirement on 10.10.2001 to 25.07.2002 the date of his relief, petitioner had made two W.P.(C) No.31236 of 2023 Page 75 of 107 representations to the opposite parties for withdrawal of his voluntary retirement application. It is also not in dispute that his first application dated 20.12.2001 was turned down without assigning any reason and the other application was not at all heeded to.
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16. We have perused the scheme and have extracted the relevant clauses and we do not find any condition that once an option for voluntary retirement is exercised by an employee and the same is accepted by the employer, the employee is not entitled to withdraw from voluntary retirement. Rather clause 6.1 stipulates that the application for VRS cannot be withdrawn after its acceptance is communicated to the employee concerned. We have already found that at no point of time the petitioner was communicated about the acceptance of his voluntary retirement offer, by the O.Ps. it is only on issuance of office memo at Annexure-7 dated 25.07.2002, the petitioner was intimated that he was allowed to retire from service with effect from 25.07.2002 under MVRS. It is now amply clear that prior to 25.07.2002 there was no communication to the petitioner that his voluntary retirement offer was already accepted by the authority. Even in the rejection order of his application for withdrawal it was not indicated that since his offer had already been accepted, the petition was rejected.
17. The short and only question before us to be decided now is what is the effective date in this W.P.(C) No.31236 of 2023 Page 76 of 107 case at hand, before which the applicant could have withdrawn his offer of voluntary retirement under the scheme.
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22. In the case of Nand Keshwar Prasad Vrs. Indian Farmers Fertilisers Co-operative Ltd., (1998) 5 SCC 461 = AIR 1999 SC 558, the Court reiterated that it is open to the employee concerned to withdraw letter of resignation before the date indicated in the notice of voluntary retirement. It has been observed therein--
„*** it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provision the retirement mentioned in the letter of the resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the concerned employee did not intend to retire from such earlier date.‟
23. In Power Finance Corporation Ltd. Vrs. Pramod Kumar Bhatia, (1997) 4 SCC 280 the Court observed as follows:
„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.‟ W.P.(C) No.31236 of 2023 Page 77 of 107
24. In Srikantha S.M. Vrs. Bharath Earth Movers Ltd., JT (2005) 12 SC 465 = (2005) Supp.4 SCR 156 the Court held thus:
„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.‟
25. Coming to the case in hand and looking to the factual position and the law settled by the Hon‟ble Apex Court we have absolutely no doubt that there was no communication to the petitioner about the acceptance of his voluntary retirement offer under the Scheme as has been stipulated in clause 6.1. thereof. The petitioner made representation for withdrawal from the Scheme after changing his mind and the same was rejected without assigning any reason whatsoever. Thereafter, he made a second representation which was not heeded to. He continued in the service of the opposite parties till 25.07.2002 when a communication regarding his retirement under voluntary retirement Scheme was made over to him and he made over charge of his office on the said date. In this fact situation, the jural relationship between the petitioner and the opposite parties continued up to 25.07.2002 and it is not in dispute that he was paid salary and other allowances as a regular employee of the opposite parties up to that date. In view of the legal position settled by the Hon‟ble Apex Court which we have dealt with extensively in the preceding paragraphs, the petitioner W.P.(C) No.31236 of 2023 Page 78 of 107 had every right to withdraw the application for voluntary retirement any time before the jural relationship between him and his employer got severed and the opposite parties could not have rejected his withdrawal application petitioner which we hold to be illegal.
***
27. Before we part with and proceed to pass the final order; we would like to note here that a person proposing to resign often wavers in his decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out on change of his mind as in the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardize government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the person concerned to withdraw his letter of retirement. As a model employer, Government or Government run Corporation, must conduct themselves with high probity and candour with its employees."
13.5. The Kerala High Court in consideration of voluntary retirement scheme vis-à-vis undue haste shown by the employer in the case of Faziludeen Vrs. Union of India, 2023 SCC OnLine Ker 6709 (Division Bench) held as follows:
W.P.(C) No.31236 of 2023 Page 79 of 107"11. We profitably recall that going by the applicant's claim, he tendered Annexure-A2 request seeking to withdraw Annexure-A1 application for voluntary retirement on the very next day of his application, that is to say, 08.10.2021. This, of course, was claimed to be tendered by hand, which was allegedly refused by the 3rd respondent. The applicant sent his withdrawal request by registered post on 11.10.2021, vide Annexure-A2. This was received by the 2nd respondent admittedly on 12.10.2021, besides being established from Annexures-A3 and A4 postal receipt and acknowledgment card. We notice that only five days have expired by that time, reckoned from the date of Annexure-A1 application, 07.10.2021, as against a statutory notice period of three months. True that there was a request to waive the notice period. However, it is axiomatic that the respondents/authorities have acted with undue haste, without arriving at a proper satisfaction required as per statute, to waive the notice period of three months. There is nothing on record indicating that the application for a notice period less than three months was considered on merits. Nor is there anything to show that the curtailment of the notice period will not cause any administrative inconvenience. On the top of all, if a request for withdrawal of voluntary retirement is made within five days, as enabled by the proviso to Rule 48-A(4) of the Rules, we cannot justify the refusal of such a request on any count/premise, whatsoever. We W.P.(C) No.31236 of 2023 Page 80 of 107 are fortified in our view by two pronouncements of the Apex Court in (1) J.N. Srivastava Vrs. Union of India, (1998) 9 SCC 559 and (2) Balram Gupta Vrs. Union of India [1987 Supp SCC 228.
The relevant findings in J.N. Srivastava are extracted here below:
„It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta Vrs. Union of India.‟
12. We also notice that the very purpose of affording a notice period in the statute itself is to enable the applicant to take a well considered decision about his career and reiterate his decision to take voluntary retirement, so that the same is not actuated by any extraneous feelings or emotions, at the spur of a moment. That precisely should be the reason for an enabling provision to withdraw a request for voluntary retirement, before the retirement is to take effect in accord with the statute. In the given facts, we are not in the least hesitant to observe that the purpose of notice period is frustrated. We are of the view that the respondents, being W.P.(C) No.31236 of 2023 Page 81 of 107 representatives of an entity under the Union Government, ought to have acted with all fairness, as a model employer, guided not merely by the letter of the Rules but by its spirit as well, with a topping of compassion and humane considerations, wherever it deserves."
13.6. Given the above perspective, there can be no ambiguity in mind to hold that the opposite party No.1 could not have accepted the application/notice dated 03.07.2023 prior to 31.10.2023, i.e., the date specified by the petitioner for voluntary retirement.
14. The impugned Order dated 11.08.2023 of the MSME Department (vide Annexure-6A) and the Order dated 23.09.2023 of the Director, DEPM (Annexure-6) as also rejection of Grievance Petition which is communicated vide Letter dated 29.09.2023 does not reveal the reason for the conclusion on facts nor does any justification cited for the action by exercising power conferred under Rule 42 of the Pension Rules, 1992. However, by way of counter affidavit the opposite parties have sought to fortify the action by supplying fresh reasons (though vague).
14.1. Oft-quoted dicta noticed in Mohinder Singh Gill Vrs.
Chief Election Commissioner, (1978) 1 SCC 405, as pressed into service by Sri Sambit Rath, learned Advocate arguing for the petitioner, deserves mention.
W.P.(C) No.31236 of 2023 Page 82 of 107In Sical Logistics Ltd. Vrs. Mahanadi Coalfields Ltd., 2017 (II) ILR-CUT 1035, following the ratio propounded in the said case by the Hon‟ble Supreme Court, this Court observed as follows:
"9. It is well settled principle of law laid down by the Apex Court time and again that the authority should pass reasoned order. Reasons being a necessary concomitant to passing an order, the authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference.
***
11. It is well-settled principle of law laid down by the Apex Court in Mohinder Singh Gill and another Vrs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 that:
„When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.‟ In Commissioner of Police, Bombay Vrs. Gordhandas Bhanji, AIR 1952 SC 16, the Apex Court held as follows:W.P.(C) No.31236 of 2023 Page 83 of 107
„Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.‟ Similar view has also been taken in Bhikhubhai Vithalbhai Patel and others Vrs. State of Gujarat and another, (2008) 4 SCC 144 as well as in M/s. Shree Ganesh Construction Vrs. State of Orissa, 2016 (II) OLR 237 = 2016 (II) ILR-CUT 237.
In the case of State of Punjab Vrs. Bandeep Singh, (2016) 1 SCC 724 the Apex Court held that the validity of administrative orders/decisions/ executive instructions/orders/circulars must be judged by reasons stated in decision or order itself. Subsequent explanations or reasons cannot be accepted to sustain decision or order."
14.2. In Shiv Prasad Sahu Vrs. State of Orissa, 2008 SCC OnLine Ori 266 = 106 (2008) CLT 672, a Division Bench of this Court laid down that, "To deal with the third question it is necessary to refer the grounds of appeal filed before the learned Tribunal by the Revenue. The ground of appeal which has been annexed to the petition as annexure 4 does not reveal W.P.(C) No.31236 of 2023 Page 84 of 107 that any specific ground has been taken with regard to addition of 10 per cent towards driage and wastage made by the Assessing Officer and deleted by the first Appellate Authority. By a cryptic order the Tribunal has restored the order of assessment. The order does not reveal whether any argument has been advanced by the Revenue against deletion of addition 10 per cent of purchased quantity of mohua flowers by the first Appellate Authority. Needless to say that the Tribunal is under a duty to decide all the questions of facts and law raised in the appeal before it. However, Tribunal on its own cannot make out a new case particularly when no such point was taken in ground of appeal and argued before it. It is not possible for the court, to decide an issue, not raised/agitated by the authority for the reason that other party did not have opportunity to meet it and such a course would violate the principles of natural justice. (vide New Delhi Municipal Committee Vrs. State of Punjab AIR 1997 SC 2847). Similarly, in V.K. Majotra Vrs. Union of India (2003) 8 SCC 40, the apex Court held as under:
„*** The writ courts would be well advised to decide the petitions on the points raised in the petition and if in a rare case, keeping in view the facts and circumstances of the case, any additional points are to be raised then the concerned and affected parties should be put to notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise."
14.3. Such being the requirement of quasi judicial decision making process, with the factual discussions and enunciation of law, this Court may proceed to hold that laconic Orders in Annexures-6 and 6A cannot W.P.(C) No.31236 of 2023 Page 85 of 107 withstand scrutiny in law. The Orders bereft of reason is untenable in the eye of law.
14.4. The Hon‟ble Supreme Court of India for failure of the Authority to ascribe reasons, in the matter of Steel Authority of India Limited Vrs. Sales Tax Officer, (2008) 10 SCR 655 = 2008 INSC 799 made the following observation:
"12. A bare reading of the order shows complete non-
application of mind. As rightly pointed out by learned counsel for the appellant, this is not the way a statutory appeal is to be disposed of. Various important questions of law were raised. Unfortunately, even they were not dealt by the first appellate authority.
13. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless. [See Raj Kishore Jha Vrs. State of Bihar, (2003) 11 SCC 519].
14. Even in respect of administrative orders Lord Denning, M.R. in Breen Vrs. Amalgamated Engg. Union, (1971) 1 All ER 1148, observed:
„The giving of reasons is one of the fundamentals of good administration.‟ In Alexander Machinery (Dudley) Ltd. Vrs. Crabtree 1974 ICR 120 (NIRC) it was observed:
"Failure to give reasons amounts to denial of justice." "Reasons are live links between the W.P.(C) No.31236 of 2023 Page 86 of 107 mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi judicial performance."
14.5. Where the fact finding authority has acted without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found, the Court is entitled to interfere. See, Lalchand Bhagat Ambica Ram Vrs. CIT, (1959) 37 ITR 288 (SC).
14.6. With reference to Omar Salay Mohamed Sait Vrs. CIT, (1959) 37 ITR 151 (SC) the Hon‟ble Andhra Pradesh High Court in Spectra Shares & Scrips Pvt. Ltd. Vrs.
W.P.(C) No.31236 of 2023 Page 87 of 107CIT, (2013) 354 ITR 35 (AP), has been pleased to make the observation that Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it, the Court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside by the Court.
W.P.(C) No.31236 of 2023 Page 88 of 10714.7. "Reason", being heartbeat of every decision making process, it has been restated in Nareshbhai Bhagubhai Vrs. Union of India, (2019) 15 SCC 1 as follows:
"In Kranti Associates (P) Ltd. Vrs. Masood Ahmed Khan, (2010) 9 SCC 496 this Court held that:
„12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognised a sort of demarcation between administrative orders and quasi judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak Vrs. Union of India, (1969) 2 SCC 262.
***
47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.W.P.(C) No.31236 of 2023 Page 89 of 107
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi judicial opinions these days can be as different as the Judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants‟ faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.W.P.(C) No.31236 of 2023 Page 90 of 107
(k) If a Judge or a quasi judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers.
Transparency in decision-making not only makes the Judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. [See David Shapiro in "Defence of Judicial Candor", (1987) 100 Harvard Law Review 731-37].
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision- making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija Vrs. Spain, (1994) 19 EHRR 553 and Anya Vrs. University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, „adequate and intelligent reasons must be given for judicial decisions‟.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of W.P.(C) No.31236 of 2023 Page 91 of 107 giving reasons for the decision is of the essence and is virtually a part of "due process"."
14.8. Conceding that giving reasons facilitates the detection of errors of law, this Court in Santosh Kumar Paikray Vrs. State of Odisha, 2016 (II) OLR 1131 (Ori) discussed importance of assignment of reason in the following lines:
"8. The meaning of the expression „reason‟ as stated by Franz Schubert:
„reason is nothing but analysis of belief.‟ In Black‟s Law Dictionary, 5th Edition, „reason‟ has been defined as:
„a faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts and from propositions.‟ In other words, reason means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe. The importance of giving reason, it reveals a rational nexus between facts considered and conclusions reached.W.P.(C) No.31236 of 2023 Page 92 of 107
9. In Union of India Vrs. Madal Lal Capoor, AIR 1974 SC 87 and Uma Charan Vrs. State of MP, AIR 1981 SC 1915, the Apex Court held reasons are the links between the materials on which certain conclusions are based and the actual conclusions.
They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. The fair play requires recording of germane and relevant precise reasons when an order affects the right of a citizen or a person irrespective of the fact whether it is judicial, quasi judicial or administrative. The recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record and it is vital for the purpose of showing a person that he is receiving justice."
14.9. It is stated in State Bank of India Vrs. Ajay Kumar Sood, 2022 SCC OnLine SC 1067 that individual judges can indeed have different ways of writing judgments and continue to have variations in their styles of expression. The expression of a judge is an unfolding of the recesses of the mind. However, while recesses of the mind may be inscrutable, the reasoning in judgment cannot be. While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles.
W.P.(C) No.31236 of 2023 Page 93 of 10714.10. Ascribing reasons being one of the important facets of decision-making process for arriving at the just conclusion, the opposite parties in the counter affidavit without specifying propriety of action taken under Rule 42 of the Pension Rules could not improve upon the case by supplementing fresh reasons. Mere stating exercise power under Rule 42 in the Order dated 11.08.2023 and Order dated 16.09.2023 in order to justify the decision taken for accepting application for voluntary retirement curtailing the period specified by the petitioner in the notice dated 03.07.2023 unilaterally would not render the action valid. To clarify it may be stated that in Rule 42(3) of the Pension Rules it is the Government servant seeking voluntary retirement who may request the Appointing Authority to accord permission to waive notice period. On such request if made by such Government servant who is desirous of retiring voluntarily, the Appointing Authority under such circumstance is conferred power to "consider" such request.
14.11. To appreciate the term "consider" as found mentioned in clause (b) of sub-rule (3) of Rule 42, it may be noteworthy to refer to Ram Chander Vrs. Union of India, AIR 1986 SC 1173, wherein it has been held that the word „consider‟ occurring in the Rule must W.P.(C) No.31236 of 2023 Page 94 of 107 mean the Authority shall duly apply its mind and give reasons for its decision. The duty to give reason is an incident of the judicial process and emphasized that in discharging quasi judicial functions the Authority must act in accordance with the principles of natural justice and give reasons for its decision.
14.12. "Consideration" does not mean incidental or collateral examination of a matter by the Authority in the process of assessment/adjudication/ determination. There must be something in the order to show that the Authority applied his mind to the particular subject-matter or the particular source of information with a view to arriving at its conclusion. See, Additional Commissioner of Income Tax Vrs. Gurjargravures Pvt. Ltd., AIR 1978 SC 40 = (1978) 2 SCR 169 = 1977 INSC 215.
14.13. The word „consider‟ is of great significance. Its dictionary meaning of the same is, „to think over‟, „to regard as‟, or „deem to be‟. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term „consider‟ postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory Authority should reflect intense application of mind with reference to the material on record. The order of W.P.(C) No.31236 of 2023 Page 95 of 107 the Authority should reveal such application of mind. The Authority cannot simply adopt the language employed in the document before it and proceed to affirm the same. [Vide, Chairman, LIC of India Vrs. A. Masilamani, (2013) 6 SCC 530; Nilamani Jal Vrs. Collector, 2016 (II) OLR 190 (Ori)].
14.14. Thus, cursory glance at Order dated 11.08.2023 of the MSME Department, Order dated 16.09.2023 of the Director, DEPM and Letter dated 29.09.2023 of MSME reveals that the Appointing Authority had exercised its power being conferred under Rule 42 of the Pension Rules. In the counter affidavit mere making statement that Rule 42 "does not preclude the Government from granting voluntary retirement before expiry of three months from the date of application"
would not suffice to countenance the action of the opposite parties. If such exercise of power unilaterally before elapse of three months‟ notice period is construed in favour of the opposite parties, then the scope of withdrawal of notice or making request for "curtailment of period of notice of three months on merits" as contained in Rule 42(3)(b) would get constricted. Further such a view would render "giving notice of not less than three months in writing to the Appointing Authority" would get ineffective and otiose.W.P.(C) No.31236 of 2023 Page 96 of 107
Scope of judicial review for intervention in administrative action of the Authority:
15. It would suffice to refer to observations made in a decision of the Hon‟ble Supreme Court of India in the case of State of NCT of Delhi Vrs. Sanjeev @ Bittoo, (2005) 3 SCR 151, which are to the following effect:
"One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi legislative and quasi judicial nature.
It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (See State of U.P. and Vrs. Renusagar Power Co., AIR 1988 SC 1737.
At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows.
The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must W.P.(C) No.31236 of 2023 Page 97 of 107 be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously.
These several principles can conveniently be grouped in two main categories:
(i) failure to exercise a discretion, and
(ii) excess or abuse of discretionary power.
The two classes are not, however, mutually exclusive.
Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to W.P.(C) No.31236 of 2023 Page 98 of 107 scrutinize the factual basis upon which discretionary powers have been exercised.
One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is „illegality‟, the second „irrationality‟, and the third „procedural impropriety‟. These principles were highlighted by Lord Diplock in Council of Civil Service Unions Vrs. Minister for the Civil Service, (1984) 3 All.ER. 935 (commonly known as CCSU Case). If the power has been exercised on a non-consideration or non- application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. [See Commissioner of Income-tax Vrs. Mahindra and Mahindra Ltd., AIR (1984) SC 1182].
The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book "Applications for Judicial Review; Law and Practice" thus:
„There is a general presumption against ousting the jurisdiction of the Courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of Governmental activity, national security being the paradigm, which the Courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government's claim is bona fide. In this kind of non-justiciable area judicial review is not W.P.(C) No.31236 of 2023 Page 99 of 107 entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in council of Civil Service Unions Vrs. Minister for the Civil Service this is doubtful. Lords Diplock, Scaman and Roskili appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case, national security. May prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney General‟s prerogative to decide whether to institute legal proceedings on behalf of the public interest.‟ (Also see Padfield Vrs. Minister of Agriculture, Fisheries and Food, LR (1968) AC 997.
The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
The famous case commonly known as „The Wednesbury‟s case‟·is treated as the landmark so far as laying down various basic principles relating to W.P.(C) No.31236 of 2023 Page 100 of 107 judicial review of administrative or statutory direction. Before summarizing the substance of the principles laid down therein· we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd Vrs. Wednesbury Corpn., (KB at p. 229: All ER A p. 682). It reads as follows:
„***.It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word „unreasonable‟ in a rather comprehensive sense. 1t has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting „unreasonably‟. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers the authority. ... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.‟ Lord Greene also observed (KB p.230: All ER p.683) „***.it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what W.P.(C) No.31236 of 2023 Page 101 of 107 the court considers unreasonable. .... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.‟ Therefore, to arrive at a decision on „reasonableness‟ the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.
The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows:
„***.Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call „illegality‟, the second „irrationality‟ and the third „procedural impropriety‟. That is not to say that further W.P.(C) No.31236 of 2023 Page 102 of 107 development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of „proportionality‟ which is recognized in the administrative law of several of our fellow members of the European Economic Community.‟ Lord Diplock explained „irrationality‟ as follows:
„By „irrationality‟ I mean what can by now be succinctly referred to as „Wednesbury unreasonableness‟. It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.‟ In other words, to characterize a decision of the administrator as „irrational‟ the Court has to hold, on material, that it is a decision „so outrageous‟ as to be in total defiance of logic or moral standards. Adoption of „proportionality‟ into administrative law was left for the future.
These principles have been noted in aforesaid terms in Union of India Vrs. G. Ganayutham, (1997) 7 SCC 463. In essence, the test is to see whether there is any infirmity in the decision making process and not in the decision itself. (See Indian Railway Construction Co. Ltd Vrs. Ajay Kumar, (2003) 4 SCC 579."
15.1. Viewed the present case at hand on the anvil of aforesaid legal perspective as expounded by the Hon‟ble Supreme Court of India the opposite parties have not acted in consonance with what is conferred under Rule 42 more particularly when the case does W.P.(C) No.31236 of 2023 Page 103 of 107 not fall within the ambit of sub-rule (3) of Rule 42 of the Pension Rules for curtailment of notice period of three months as required under sub-rule (1) ibid.
15.2. The opposite parties having passed Order dated 11.08.2023 of the MSME Department (Annexure-6A) and Order dated 16.09.2023 of the Director, DEPM (Annexure-6) specifying the date of retirement of the petitioner unilaterally with effect from 30.09.2023 curtailing the date of voluntary retirement desired by the petitioner in transgression authority and powers conferred under Rule 42 of the Pension Rules, said impugned Orders are vitiated. Under such circumstance of the matter, this Court is inclined to show indulgence in said Order in exercise of power of judicial review in administrative action by applying the exposition of law as enunciated by the Hon‟ble Supreme Court of India cited above.
15.3. Under the aforesaid premises, the petitioner has made out a case warranting exercise of extraordinary jurisdiction under Article 226/227 of the Constitution of India by holding that the Grievance Petition dated 18.09.2023 ought not to have been rejected without assigning any reason whatsoever as is revealed from communication vide Letter dated 29.09.2023 issued W.P.(C) No.31236 of 2023 Page 104 of 107 by the Under-Secretary to Government of Odisha in MSME Department.
15.4. No material justifying action taken against the petitioner being placed by the learned Additional Standing Counsel appearing for the opposite parties to throw light on exercise of power under Rule 42 of the Pension Rules, 1992. In absence of any material that there was a request by the petitioner to curtail the notice period, and lack of recording "satisfaction" that curtailment of such notice period would not cause any administrative inconvenience, the acceptance of voluntary retirement with effect from 30.09.2023 before lapse of three months from 03.07.2023, i.e., the date of application/notice for voluntary retirement indicates the exercise of discretion is improper and inappropriate, besides being irrational and illegal.
Therefore, the Orders under challenge in the writ petition are said to be vitiated.
Conclusion:
16. Aforesaid discussion on facts and proposition of law would boil down to demonstrate that the petitioner having submitted his application dated 03.07.2023, i.e., notice of not less than three months by specifying that he desires to retire voluntarily with effect from 31.10.2023, there is no vested power available with W.P.(C) No.31236 of 2023 Page 105 of 107 the opposite parties to suo motu spring into action by curtailing the notice period. In the present fact scenario the petitioner has never submitted any application seeking to curtail or waive such notice period.
16.1. From the narration of events it transpires that neither the opposite party No.1 could pass the Order dated 11.08.2023 much prior to elapse of three months‟ notice period in view of sub-rule (1) read with sub-rule (3) of Rule 42 nor could the opposite party No.2 pass Order dated 16.09.2023 specifying date of retirement of the petitioner on 30.09.2023 inasmuch as said date would fall prior to lapse of three months from the date of submission of notice, i.e., 03.07.2023.
16.2. For yet another reason the Orders impugned cannot be held to be tenable is this: that they are not supported by reasons. The acceptance of the retirement notice prior to the effective date specified by the petitioner would significantly prejudice his position. This could lead to adverse civil consequences, limiting the petitioner‟s ability to request for waiver/curtailment of the notice period. Furthermore, it would restrict his opportunity to consider cooling-off period, which is essential for W.P.(C) No.31236 of 2023 Page 106 of 107 contemplating the possibility of withdrawing his notice desiring voluntary retirement from a particular date.
17. For the foregoing reasons, in the considered opinion of this Court, the writ petition deserves to be allowed and is, accordingly, allowed.
17.1. The action of the opposite parties in accepting the application/notice dated 03.07.2023 desiring to retire voluntarily is held to be premature and therefore, the Order dated 11.08.2023 of the MSME Department (Annexure-6A), the Order dated 16.09.2023 of DPEM (Annexure-6) and the Letter dated 29.09.2023 (Annexure-6A) are declared illegal and unlawful being contrary to the provisions of Rule 42 of the Odisha Civil Services (Pension) Rules, 1992. It is, therefore, hereby set aside.
17.2. The opposite parties are directed to reinstate the petitioner in his service and treat him in continuous service and give him all benefits including arrears of salary.
18. The writ petition is, accordingly, allowed, with no order Signature Not as to costs.
Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) (MURAHARI SRI RAMAN) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK JUDGE Date: 06-Jan-2025 18:49:58 High Court of Orissa, Cuttack The 6th January, 2025//Aswini/MRS/Laxmikant W.P.(C) No.31236 of 2023 Page 107 of 107