Punjab-Haryana High Court
Union Of India & Another vs Nirmal Singh on 8 February, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No. 489 of 2012(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 489 of 2012(O&M)
Date of decision:08.02.2012
Union of India & another
......Appellants
Vs.
Nirmal Singh
...Respondent
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr. Ram Chander, Advocate for the appellants.
Mr. Anil Chawla, Advocate, for the caveator-respondent.
***
Tejinder Singh Dhindsa, J.
CM No.1332-C of 2012:
This is an application under Section 5 of the Limitation Act seeking condonation of 33 days delay in filing the appeal. The application is duly supported by an affidavit.
In view of the averments made in para Nos.1, 2 & 3 of the application, I find that sufficient cause has been shown for condonation of 33 days delay in filing the appeal.
Application is allowed and delay of 33 days in filing the appeal is condoned.
CM disposed of.
RSA No.489 of 2012:
The defendants/appellants are in second appeal before this Court. RSA No. 489 of 2012(O&M) -2- Briefly stated, the respondent/plaintiff instituted a suit for declaration in terms of impugning the order dated 08.09.1998 whereby, a request seeking voluntary retirement had been accepted. It was pleaded that the order dated 08.09.1998 is illegal, unconstitutional, against the principles of natural justice, without jurisdiction and inoperative qua the plaintiff. The plaintiff prayed that he be entitled to all the benefits alongwith interest. The plaintiff further prayed that upon holding the impugned order dated 08.09.1998 to be bad in law, he be deemed to be in service on the post of Commandant alongwith consequential benefits. The plaintiff joined the Indian Army on 02.08.1964 as an Emergency Commissioned Officer and fought two wars with Pakistan in the year 1965 and 1971. Thereafter, he joined the Border Security Force as Assistant Commandant on 02.03.1976.
The plaintiff had always performed his duties diligently and honestly and had been rewarded for his meritorious services. He was promoted as Deputy Commandant in May, 1986 and was transferred to Sopore in J & K and he served there for a period of about 3 years. Plaintiff pleaded that as per instructions and guidelines issued, upon having served in a hard area for a period of 2 years, he was entitled for posting in a terminal station. The plaintiff had accordingly, submitted a request to be transferred in a terminal station in Punjab, citing therein, the ill health of his wife as also his aged parents. His request was not acceded to and he was given a step motherly treatment by the authorities concerned. He accordingly, had served a notice for voluntary retirement dated 22.05.1997 and such notice was not accepted by the authorities. Suffice it to notice that such notice for voluntary retirement was considered as withdrawn and orders in regard thereto, were passed on 09.12.1997. Subsequently, the plaintiff submitted a notice RSA No. 489 of 2012(O&M) -3- seeking voluntary retirement vide application dated 01.05.1998, which was to take effect w.e.f. 31.07.1998. The plaintiff pleaded that he was relieved from service on 20.09.1998 on account of communication of an order dated 08.09.1998. Even though, prior there to he had submitted a representation on 18.09.1998, withdrawing the notice of voluntary retirement. It was against such factual background that the plaintiff had sought a declaration in respect of the order dated 08.09.1998 holding it to be non-est and accordingly, prayed for the authorities to deem him to be in service alongwith all consequential benefits.
The defendants contested the suit and filed a written statement contending that the service record of the plaintiff was not without blemish. Adverse remarks had been recorded for the year 1997-98. However, it was admitted that the plaintiff had been promoted to the rank of Deputy Commandant in the year 1986. Posting of the plaintiff in J & K area was not denied. However, it was stated that the request submitted by the plaintiff for posting, had been examined but the same could not be accepted on account of non-availability of vacancy in the Unit of BSF located in the State of Punjab. It was further stated that the application submitted by the plaintiff seeking voluntary retirement had been accepted by the Competent Authority and the formal order was issued on 08.09.1998 and in pursuance to which upon the same having been communicated, the plaintiff had relinquished the charge on 20.09.1998. On such averments, dismissal of the suit filed by the plaintiff was prayed for. Upon the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the impugned order dated 08.09.1998 is wrong, illegal, arbitrary, unconstitutional, against principles of natural RSA No. 489 of 2012(O&M) -4- justice and is void without jurisdiction? OPP.
2. Whether the plaintiff is entitled to all the benefits attached to the said post alongwith costs.
3. Whether the suit is not maintainable? OPD.
4. Whether the plaintiff is estopped by his own act and conduct from filing the suit?OPD.
5. Whether this Court has no jurisdiction to entertain the present suit? OPD.
6. Whether this Court jurisdiction is barred under Administrative Tribunal Act, 1971? OPD.
7. Whether the Civil Courts jurisdiction is barred under Section 4 of the Pension Act, 1971? OPD.
8. Relief.
Upon having heard respective counsel for the parties and having scanned the evidence brought on record, the suit filed by the plaintiff was decreed in his favour. The impugned order dated 08.09.1998 whereby, the voluntary retirement notice of the plaintiff had been accepted was held to be null and void and defendants were directed to treat the plaintiff in service for all intents and purposes till the date of his attaining the age of superannuation with all consequential benefits as also interest at the rate of 6% P.A. Aggrieved by the judgment dated 18.05.2009 passed by the trial Court, the defendants/appellants preferred a civil appeal and vide judgment dated 11.08.2011, the Additional District Judge, Amritsar has affirmed the findings recorded by the trial Court and has dismissed the appeal. Resultantly, the defendants/appellants are in second appeal before this RSA No. 489 of 2012(O&M) -5- Court.
I have heard Mr. Ram Chander, Advocate, for the appellants. Learned counsel appearing for the appellants would contend that the notice for voluntary retirement had been accepted by the Competent Authority on 08.09.1998 and as such, once a request seeking voluntary retirement having already been accepted, the same could not have been withdrawn by the plaintiff/respondent thereafter. Learned counsel would further argue that the impugned order dated 08.09.1998, was legally tenable as it has been passed strictly inconsonance with the statutory rules governing the same.
The impugned order dated 08.09.1998, Ex.P-22 was an intimation given by the Directorate General, Border Security Force (Personnel Directorate) to the Deputy Director (Accounts) BSF Pay and Accounts Division, New Delhi regarding conveying the approval of the Central Government with regard to the acceptance of the notice of retirement in respect of the plaintiff/respondent. Counsel for the appellant has produced the order dated 08.09.1998 for the perusal of this Court and the same reads in the following terms:
"No.22/18/98-Pers/BSF Government of India Ministry of Home affairs Directorate General Border Security Force (Personnel Dictorate) Block No.10, 5th floor, CGO complex, Lodhi Road, New Delhi, 03 To The Deputy Director (Accounts), Border Security Force, Pay & Accounts Division, Pushpa Bhawan, Madangir, New Delhi-62 RSA No. 489 of 2012(O&M) -6- Subject: RETIREMENT OF SHRI NIRMAL SINGH COMDT IRLA NO.23056 OF 42 BN BSF.
1. I am directed to convey the approval of the Central Govt. Regarding acceptance of the notice of retirement under Rule 40 (1) of the CCS (Pension) Rules 1972, read with Rule 102 of the BSF Rules, 1969, served by Shri Nirmal Singh, Comdt, IRLA-23056 of 42 BN BSF with effect from the date of his release.
2. Shri Nirmal Singh, Comdt, IRLA-23056 of 42 BN BSF will, thus retire from service with effect from the date of his release/relinquishment of charge as per rule 30 (b) of the BSF Rules, 1969. The Officer would be entitled to pension and other benefits may be admissible to him under Rule 40 (1) (a) of the CCS (Pension) Rules, 1972.
3. This issue with the approval of the Government of India vide Ministry of Home Affairs ID No.F.492/98.Pers-III datged 04.09.1998.
(K.K. BHARADWAJ) DEPUTY DIRECTOR (PERS-III) 08th September, 1998"
A perusal of the order dated 08.09.1998 would reveal that Sh. Nirmal Singh, Commandant i.e. plaintiff/respondent was to retire from service w.e.f. the date of his release/relinquishment of charge as per Rule 30(b) of BSF Rules, 1969 (hereinafter to be referred as 1969 Rules).
Rule 30 of the Border Security Force Rules, 1969, which deals with the date of dismissal, removal, resignation, retirement is couched in the following terms:
"The effective date of dismissal, resignation or retirement shall be,-RSA No. 489 of 2012(O&M) -7-
(a) the date mentioned in the order of dismissal or removal or order sanctioning or accepting resignation or retirement; or
(b) if no such date is mentioned, the date on which the order was signed or the date on which the person concerned is relieved from duties, whichever is later."
A conjoint reading of the impugned order dated 08.09.1998 alongwith Rule 30(b) of the 1969 Rules, would leave no doubt that the effective date of retirement in so far as the plaintiff/respondent is concerned, would be the date from which, he was relieved from his duties. The admitted case of the parties is that the plaintiff/respondent was relieved/discharged from duty on 20.09.1998 and as such fact was admitted by DW1 and also stood conclusively established from the documents, Ex.P-26 to Ex.P-28. Another finding of fact, recorded by the Courts below is that the plaintiff/respondent vide letter dated 18.09.1998 had withdrawn his notice seeking voluntary retirement and such document stood proved on record as Ex.D-1.
In the light of such concurrent finding of fact that the plaintiff/respondent had withdrawn his request for voluntary retirement prior to his release/relinquishment, I find no infirmity in the impugned judgments/decrees passed by the Courts below. It may be taken as a settled legal position that unless an employee is relieved of the duty after acceptance of an order of voluntary retirement or resignation, the jural relationship of the employee and employer does not come to an end. The plaintiff/respondent was well within his rights to have withdrawn his request of voluntary retirement prior to the same being accepted. Learned counsel for the appellant has not been able to show any misreading and RSA No. 489 of 2012(O&M) -8- misappreciation of evidence by the Courts below.
For the reasons recorded above, the present second appeal must fail as it does not raise any question of law much less substantial question of law.
Appeal dismissed.
February 08, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE Note: Whether to be reported? Yes