Central Administrative Tribunal - Bangalore
Nagendra vs Deptt Of Posts on 28 February, 2024
1 OA No.149/2023/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00149/2023
ORDER RESERVED : 16.02.2024
DATE OF ORDER : 28.02 .2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri Nagendra,
S/o Late Krishna Bhat,
Aged 55 years,
Working as Sub-Postmaster,
LSG, Bajegoli SO-574122,
Karkala Taluk, Udupi District,
Residing at 36/2, 'Sourabha',
Attur Church Road, Kabettu,
Karkala-574104. ... Applicant
(By Advocate, Shri A.R.Holla)
Vs.
1. The Union of India,
by Secretary,
Department of Posts,
Dak Bhavan, New Delhi -110001.
2. The Postmaster General,
South Karnataka Region,
Bengaluru -560001.
3. The Director of Postal Services,
South Karnataka Region,
Bengaluru-560001.
2 OA No.149/2023/CAT/BANGALORE BENCH
4. The Senior Superintendent of Post Offices,
Puttur (DK) Division,
Puttur -574201. ....Respondents
(By Advocate Shri H.R.Sreedhara for Respondents)
O R D E R (ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i). To quash the Order No.SK/STA/4-28/VR/PTR dated at Bengaluru-560001, the 21.03.2023, issued by the respondent No.2, Annexure-A7.
ii) Direct the respondents reinstate the applicant in service with all consequential benefits treating the intervening period as on duty and
iii) Grant such other relief deemed fit having regard to the facts and circumstances of the case."
2. The facts in brief as stated by the applicant are that he was appointed as Time Scale Postal Assistant in Channapatna Division on 22.03.1991. He was granted TBOP benefit from 30.12.2006. Further 3 OA No.149/2023/CAT/BANGALORE BENCH financial upgradation was granted in PB-2 + Grade Pay of Rs.4200/- with effect from 13.04.2011. The applicant was appointed as Accountant (LSG cadre), Karkala HO with effect from 27.05.2016 and was granted 3rd MACP benefit on completion of 30 years of service with effect from 13.04.2021. The applicant submitted a notice to Respondent No.3 on 16.11.2022 under Rule 48 of the CCS (Pension) Rules, 1972 expressing his desire to retire voluntarily. In response to the same Respondent No.2 conveyed approval of competent authority for voluntary retirement of the applicant with effect from 22.03.2023 vide order dated 22.12.2022. However, in view of the changed circumstances, the applicant submitted a representation to Respondent No.3 on 09.02.2023 seeking withdrawal of voluntary retirement and expressing his desire to continue in service. Thereafter, the applicant submitted another representation before the Respondent No.4 confirming his desire to continue in service and requested to permit him to withdraw the request for voluntary retirement. The Respondent No.2 issued an order dated 21.03.2023 stating that the request of the applicant for withdrawal of voluntary retirement notice has not been agreed to, by the competent authority. Pursuant to which, the applicant has been relieved of his duties on 22.03.2023 afternoon. Being aggrieved, the applicant has preferred this OA.
4 OA No.149/2023/CAT/BANGALORE BENCH
3. Learned Counsel Shri A.R.Holla representing the applicant submitted that the impugned order dated 21.03.2023 rejecting the request of the applicant for withdrawal of request for voluntary retirement is not in conformity with the CCS (Pension) Rules, 1972 and the law declared by the Hon'ble Apex Court in J.N.Srivastava vs. Union of India and another reported in AIR 1999 SC 1571 wherein it is categorically held that an employee can withdraw his application for voluntary retirement before it becomes effective. Hence rejection order of the request of the applicant for withdrawal of voluntary retirement notice issued by the Respondents No.2 dated 21.03.2023 (Annexure A7) deserves to be set aside, directing the respondents to reinstate the applicant into service with all consequential benefits as prayed for.
4. Learned Counsel Shri H.R.Sreedhara representing the respondents inviting the attention of the Bench to the reply statement filed on behalf of the respondents submitted that though the representation was submitted by the applicant dated 09.02.2023 for cancellation of his request for voluntary retirement and withdrawal of his notice dated 16.11.2022, the applicant again submitted one more representation dated 14.02.2023 requesting to treat his letter dated 09.02.2023, submitted for withdrawal of voluntary retirement notice as 5 OA No.149/2023/CAT/BANGALORE BENCH cancelled and expressed that he would proceed on voluntary retirement with effect from 22.03.2023 afternoon. The applicant again submitted a representation dated 13.03.2023 seeking withdrawal of his voluntary retirement notice. Thus the applicant was impetuous in his decision in the matter. Further, learned Counsel submitted that a Government servant is not entitled to demand as a right for permission to withdraw his letter of voluntary retirement, it could be given only as a matter of discretion. Further placing reliance on the judgment passed by the Hon'ble Apex Court in the case of Director General, ESIC vs. Purushotham Malani in Civil Appeal No.4611/2008, learned Counsel submitted that if the incumbent does not provide any reason for revoking his notice for voluntary retirement, then it is always open to the authority to decline the request of withdrawal of notice for voluntary retirement. In the present case, the applicant has not given any reasons for his withdrawal of voluntary retirement notice. Justifying the action of the respondents, learned Counsel sought for dismissal of the OA.
5. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
6. The undisputed facts are that the applicant submitted notice before the Respondent No.3 on 16.11.2022 under Rule 48 of CCS 6 OA No.149/2023/CAT/BANGALORE BENCH (Pension) Rules, 1972 seeking for voluntary retirement with effect from 22.03.2023. The approval of the competent authority has been conveyed to the applicant for his voluntary retirement with effect from 22.03.2023 vide communication dated 22.12.2022. In the meantime, the applicant submitted a representation before Respondent No.3 seeking withdrawal of his notice for voluntary retirement on 09.02.2023. Again the applicant submitted another representation confirming withdrawal of notice for voluntary retirement on 13.03.2023, though vide letter dated 14.02.2023 he had sought for cancellation of request for withdrawal of voluntary retirement notice dated 09.02.2023. The applicant has been informed that his request for withdrawal of voluntary retirement has not been agreed upon. Accordingly, the applicant has been relieved of his duties on 22.03.2023.
7. It is well settled that unless an employee is relieved of the duty, after acceptance of the resignation, jural relationship of the employee and the employer does not come to an end. The appointing authority is competent to accept the resignation and the communication dated 22.12.2022 issued by Respondent No.2 would indicate that the resignation submitted by the applicant was accepted. But the applicant 7 OA No.149/2023/CAT/BANGALORE BENCH was not relieved immediately though the acceptance letter was issued. Jural relationship of the employer and the employee continued after issuing the communication of acceptance of the applicant's resignation.
8. In the circumstances, the crucial question is, whether the withdrawal of the letter of resignation on 09.02.2023 before the effective date 22.03.2023 given by the Respondent No.2 to the resignation dated 16.11.2022 submitted by the applicant, is valid notwithstanding the acceptance of the resignation by the appointing authority?
9. It is beneficial to refer to the judgment of Hon'ble Apex Court in the case of Raj Kumar Vs. Union of India reported in (1968) 3 SCR 857 which has been considered in Air India Express Ltd vs. Capt Gurudarshan Kaur Sandhu reported in (2019) 17 SCC 129, rendered in the context of the State Government recommending that the resignation of the IAS officer be accepted and the Government of India had requested the Chief Secretary of the State to intimate the date on which the appellant, therein, was relieved of his duties so that a formal notification could be issued. However, before the date could be intimated and formal notification could be issued, the officer withdrew his resignation by a letter. On an order of accepting his resignation issued, subsequently a challenge was raised and it was held by the 8 OA No.149/2023/CAT/BANGALORE BENCH Hon'ble Apex Court that there was indication in the correspondence between the parties that the resignation was not to become effective until the acceptance was intimated to the appellant, therein.
10. In Shambu Murari Sinha vs. Project & Development India Ltd & Anr reported in 2002 (3) SCC 437, the Hon'ble Apex Court has observed thus:
"It was pointed out in that case that the acceptance of voluntary retirement was not unconditional and before the conditions could be complied with, the employee could withdraw from the scheme. On those facts, the above observations were made. It is not necessary to consider whether in all cases, actual relief becomes the crucial date. However, the ratio of decision in Balram Gupta's case coupled with the observations of the Constitution Bench in Gopal Chandra Misra's case could usefully applied to the present case.
Coming to the case in hand the letter of acceptance was a conditional one inasmuch as though option of the appellant for the voluntary retirement under the scheme was accepted but it was stated that the 'release memo along with detailed particulars would follow'. Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated August 07, 1997 and September 24, 1997, but there was no response from the respondent. By office memorandum dated 25th September, 1997, the appellant was 9 OA No.149/2023/CAT/BANGALORE BENCH released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i.e. 26 September, 1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and said relationship continued till 26th of September, 1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end."
Before coming to this conclusion, the Hon'ble Apex Court has referred to the judgment of Balram Gupta vs. Union of India and Anr. reported in (1987) Supp. SCC 228. In Balram Gupta supra, the principle laid down in Union of India vs. Gopal Chandra Misra reported in 1978 (2) SCC 301 has been summarised as under:
""A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates his tenure."
11. The Hon'ble Apex Court in J.N.Srivastava vs. Union of India reported in (1998) 9 SCC 559, has held as under:
10 OA No.149/2023/CAT/BANGALORE BENCH
"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."
12. In the light of the aforesaid judgments, withdrawal of resignation by the applicant on 09.02.2023 before giving effect to the resignation i.e., on 22.03.2023 cannot be held to be unjustifiable. Thus in the circumstances, the applicant had locus poenitentiae to withdraw his resignation before the relationship of employer and employee came to an end.
13. OM dated 10.06.2019 issued by the DOPT specified the conditions whereby the appointing authority may permit a person to withdraw his resignation in public interest and the same reads thus:
"2. The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely;
(a) that the resignation was tendered by the Government Servant for some compelling reasons which did not involve any reflection on his integrity , efficiency, or conduct and the request for withdrawal of the resignation has been made as a result of a 11 OA No.149/2023/CAT/BANGALORE BENCH material change in the circumstances which originally compelled him to tender the resignation;
(b) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;
(c) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
(d) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available."
14. In our view, this OM would not come to the assistance of the respondents to reject the withdrawal of resignation by the applicant. The claim of the applicant cannot be rejected on hyper technicalities. No reasons are assigned by the Respondent No.2 for rejection of the request of the applicant for withdrawal of resignation. The applicant has stated that the situation is favouring him to continue in the service. In Purushotham Malani supra, the employee after getting all the benefits 12 OA No.149/2023/CAT/BANGALORE BENCH of voluntary retirement, without giving any explanation for revoking the notice of voluntary retirement had approached the Tribunal. Hence, the said judgment is distinguishable.
15. In the recent judgment of the Hon'ble Apex Court in the case of Dr.Mrs. Suman V.Jain vs. Marwadi Sammelan through its Secretary and others reported in 2024 SCC Online SC 161, the Hon'ble Apex Court placing reliance on the law laid down by the constitution Bench in Union of India vs. Gopal Chandra Misra supra, held that the as per the law laid down by the Constitution Bench, the prospective or intending resignation would be complete and operative on arrival of the indicated future date in the absence of anything contrary in the terms and conditions of the employment or contract. The intimation sent in writing to the Competent Authority by the incumbent employee of his intention or proposal to resign from his office/post from a future specified date can be withdrawn at any time before it becomes effective. The Principle of "vinculum juris" propounded in the judgment of the Hon'ble Apex Court in Srikantha S.M. Vs. Bharath Earth Movers Limited reported in (2005) 8 SCC 314, has been referred to, wherein an action of refusal to accept the withdrawal of resignation was set aside explaining the principle of "vinculum juris", holding that the 13 OA No.149/2023/CAT/BANGALORE BENCH relationship of employer and employee did not come to an end on the date of sending an intimation of withdrawal of resignation and it would continue till the actual date of acceptance. In Captain Gurdarshan Kaur Sandhu supra, Hon'ble Apex Court reaffirming the law laid down in Gopal Chandra Misra supra and Balram Gupta supra, held that "it is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation." No defence such as the administration had made arrangements acting on the applicant's resignation to make other employee available for his job has been taken in the present case.
16. For the reasons aforesaid, we are of the considered view that the impugned order dated 21.03.2023 (Annexure A7) issued by the Respondent No.2 rejecting the withdrawal of resignation is unsustainable and is liable to be set aside. Ordered accordingly. The applicant shall be entitled to rejoin his duty. All the consequential benefits shall follow except arrears of salary for the period he did not work. 14 OA No.149/2023/CAT/BANGALORE BENCH
17. Resultantly, OA stands allowed to the extent indicated above. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.