Central Administrative Tribunal - Ernakulam
K.A.Ebrahim Kunju vs Union Of India Represented By The ... on 31 October, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A.NO. 766 OF 2007 Friday, this the 31st day of October, 2008. CORAM: HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER K.A.Ebrahim Kunju Administrative Officer Grade I Office of the Director, Geological Survey of India Pandeswar, Mangalore Residing at Karuvelil House Alinaparambil Road DK Post, Kalamassery Ernakulam - 683 109 Applicant (By Advocate Mr. Shafik M.A.) vs. 1. Union of India represented by the Secretary Ministry of Mines, Sasthri Bhavan New Delhi 2. The Director General Geological Survey of India 27 JN Road, Kolkotta - 700 001 3. The Director Geological Survey of India Pandeswar, Mangalore Respondents (By Advocate Mrs. Mini R Menon, ACGSC ) The application having been heard on 22.10.2008, the Tribunal on 31.10.2008 delivered the following: O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER This is the second round of litigation. In the earlier litigation, the Bangalore Bench of this Tribunal vide order dated 04.05.07 in OA No.438/05 has considered inextensio the legal points involved in this case and passed the following order:
"Taking into account of the circumstances of the case, we direct the 2nd respondent to consider the case of the applicant for cancellation of the request for voluntary retirement made in appeal dated 04.06.2004 in accordance with law and in the light of the decision of the Supreme Court discussed herein above and to pass appropriate orders in accordance with law within a period of three months from the date of receipt of a copy of this order. In case, the request is being accepted, the applicant will be accommodated in any vacancy that may arise hereafter and the period of absence from duty has to be regularized in accordance with law."
2. In compliance with the above, the respondents have passed the impugned order dated 01.08.07 vide Annexure A-1.
3. The facts of the case as stated in Para 1 of the order of the Bangalore Bench of this Tribunal are as under :
" The applicant, while working as Administrative Officer Gr.I, under the 3rd Respondent, had applied for voluntary retirement from service under Rule 48-A of Central Civil Service (Pension) Rules, 1972, on 26.08.2003 (AnnexureA-
1). The due date for voluntary retirement after required notice was shown as 02.04.2004. The applicant, thereafter submitted another letter dated 18.02.2004 (Annexure-A-2) seeking cancellation of the earlier notice dated 26.08.2003 and sought voluntary retirement with effect from 12.07.2004. This application was accepted by the 2nd respondent as per Office Order dated 18.05.2004, wherein it is stated that the President of India has kindly accepted the notice of voluntary retirement in respect of the applicant with effect from 12.07.2004 under Rule 48(A)(1) of the said Rules. The applicant had subsequently, sent a communication dated 04.06.2004 (Annexure-A-3) seeking cancellation of the notice dated 18.02.2004 for voluntary retirement with effect from 12.07.2004. This communication was forwarded by the 3rd respondent to the 2nd respondent on 07.06.2004 (Annexure-A-4). Nothing was heard on the said request from the respondents. While so, the 3rd respondent issued a communication dated 09.08.2004 (Annexure -A-5) stating that the request of the applicant for voluntary retirement from the post of Administrative Officer Gr.I (GSI), has been accepted by the competent authority with effect from 12.07.2004, and therefore, he was directed to hand over the charge report of the post of Administrative Officer Gr.I. The applicant, being aggrieved by this communication, filed a appeal dated 09.08.2004 (Annexure-A8), through proper channel to the 2nd respondent. Since, there was no response to this appeal from the 2nd respondent, this O.A. is filed on 21.11.2005."
4. The applicant has filed this OA challenging the impugned order at Annexure A-1 on various grounds.
5. The respondents have contested the OA. In their reply they had maintained that the applicant's request for withdrawal of his application for voluntary retirement was received by the Ministry only after the date of his voluntary retirement viz., 12.07.2004 and as such, he had been allowed to retire voluntarily. In addition, they have maintained that the reason for withdrawal is not tenable. They had further stated that the case has been critically examined but the request of the applicant could not be acceded to for the reason given in the impugned order.
6. The applicant has filed his rejoinder reiterating his contentions as raised in the OA.
7. Arguments were heard and documents perused.
8. One need not have to labour a lot to spot the grave legal infirmity in the impugned order. Admittedly, the applicant applied on 26-08-2003 for voluntary retirement w.e.f. 02-04-2004 but later on deferred the date of voluntary retirement to 12-07-2004, vide his application dated 18-02-2004 addressed to Secretary, Ministry of Mines Shastri Bhavan, New Delhi, through proper channel. As of 18-02-2004 no decision was taken and before 12-07-2004, while the respondents have accepted the request for voluntary retirement w.e.f.12-07-2004 vide ordeer dated 18-05-2004, the applicant had requested that his application for voluntary retirement be treated as cancelled, vide representation dated 04-06-2004 again, addressed to Secretary, Ministry of Mines Shastri Bhavan, New Delhi, through proper channel. The said representation referred to communication dated 18-05-2004 cited above. The Marine Wing, Geological Survey of India, Mangalore, in turn, promptly forwarded the request of the applicant to the Ministry of Mines on 07th June 2008. In so far as the applicant is concerned, there has been no delay in his application. It is the case of the respondents that the said request forwarded by the Mangalore Office reached the authorities only after 12-072004. The applicant cannot be faulted with in this regard. (See Bhoop v. Matadin Bhardwaj, (1991) 2 SCC 128,) Again, the respondents cannot take advantage of their own mistake (see Rekha Mukherjee v. Ashis Kumar Das,(2005) 3 SCC 427) at the cost of the vested right of the applicant.
9. The respondents have stated that acceptance of the letter of withdrawal is only when there is a material change in the circumstances in consideration of which the notice was originally given. The reason given by the applicant at the time of his initial application for voluntary retirement is harassment by the department and ailment of his family members. Annexure A-2 refers. His request for deferment of the date of retirement to 12-07-2004, as communicated in his letter dated 18-02-2004 is school admission of his children. In his further communication dated 4th June 2004, he had stated that in view of the bad health condition, he thought it prudent not to take voluntary retirement at that stage.
10. The above reason of bad health condition would outwardly make one to think that under such a circumstance one may be inclined to take voluntary retirement and not to continue in service. But viewed from another angle, the medical facilities available during the time one is in service are certainly more than at the time when one retires. May be, where the CGHS facilities are available, there may be some comparison with reference to the facilities during and after service but where there is no CGHS facility, one has to be content only with some medical allowance given as a part of pension. The reason specified cannot, thus, be ignored. In the case of Balram Gupta v. Union of India, 1987 Supp SCC 228, the Apex Court has held as under:
"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".
The law relating to voluntary retirement and right of an employee to withdraw his request for such voluntary retirement has been congealed in the case of Srikantha S.M. v. Bharath Earth Movers Ltd.,(2005) 8 SCC 314, wherein, the Apex Court has referred to a number of cases in this regard. The Apex Court in that case as observed as under:
"13. In Union of India v. Gopal Chandra Misra (1978) 2 SCC 301 this Court held that a complete and effective act of resigning an office is one which severs the link of the resignor with his office and terminates its tenure.
14. In Balram Gupta v. Union of India 1987 Supp SCC 228 this Court reiterated the principle in Gopal Chandra Misra and ruled that though that case related to resignation by a Judge of the High Court, the general rule equally applied to government servants.
15. The learned counsel for the parties drew our attention to some of the decisions of this Court on the point. In Punjab National Bank v. P.K. Mittal 1989 Supp (2) SCC 175 an employee resigned from service of the Bank by a communication dated 21-1-1986. It was to be effective from 30-6-1986. The Deputy General Manager who was the competent authority under the Service Regulations, accepted the resignation as per the letter of resignation i.e. with effect from 30-6-1986. The employee, however, received a letter from the Bank on 7-2-1986 informing him that his resignation letter had been accepted by the competent authority with immediate effect and consequently he was being relieved from the service of the Bank with effect from that day i.e. from 7-2-1986. The employee, therefore, filed a petition challenging the validity of the purported acceptance of his resignation with effect from 7-2-1986 and for a direction to the Bank to treat him in service up to 30-6-1986 by granting all consequential benefits. The matter, however, did not end there. On 15-4-1986, the employee addressed a letter to the Bank purporting to withdraw his resignation letter dated 21-11986. The question which came up for consideration was as to whether the subsequent development could be taken into account and whether the employee continued in service in view of the withdrawal of resignation dated 15-4-1986. Accepting the contention of the employee that he continued in service, the Court held that his resignation could take effect from 30-6-1986 or on expiry of three months period provided in the Service Regulations and before that period he could withdraw the resignation. Since he had withdrawn the resignation before 30-6-1986, he continued to remain in service with the Bank.
16. It was urged on behalf of the Bank that Regulation 20(2) provided for notice to protect the interest only of the employer (Bank) and to enable it to make other arrangements in the place of the resigning employee. The proviso to clause (2) enabled the Bank to reduce the notice period to less than three months and as such it was not obligatory for the Bank to wait till the notice period would expire.
17. This Court, however, did not agree with the interpretation.
Dealing with the object underlying such provision as giving opportunity to both, the employer as well as the employee, the Court stated: (SCC pp. 179-80, para 7) "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 his 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 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 that in the present case the resignation of the employee could have become effective only on or about 21-4-1986 or on 30-6-1986 and that the bank could not have 'accepted' that resignation on any earlier date. The letter dated 72- 1986 was, therefore, without jurisdiction." (emphasis supplied)
18. In Balram Gupta referred to above, the employee withdrew his notice of voluntary retirement on account of persistent and personal requests from the staff members. But the prayer for withdrawal was not allowed by the employer on the ground that it had already been accepted by the Government. Moreover, Rule 48-A(4) of the Central Civil Services (Pension) Rules, 1972 precluded the government servant from withdrawing his notice except with specific approval of the appointing authority.
19. Deprecating the stand taken by the Government, this Court held that it was not proper for the Government not to accede to the request of the employee. "In the modern age we should not put embargo upon peoples choice or freedom", stated the Court (SCC pp. 235-36, para 12).
20. The Court added: (SCC p. 236, para 13) "In the modern and uncertain age it is very difficult to arrange ones future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardise Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways to ease out uncomfortable employees. As a model employer the Government must conduct itself with high probity and candour with its employees."
21. In Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia (1997) 4 SCC 280 a workman applied for voluntary retirement pursuant to the scheme framed by the Corporation to relieve surplus staff. The Corporation vide an order dated 20-12-1994 accepted voluntary retirement of the workman with effect from 31-12-1994 subject to certain conditions. Subsequently, however, the Corporation withdrew the scheme. It was held that the order dated 20-12-1994 was conditional and unless the employee was relieved from the duty on the fulfillment of those conditions, the order of voluntary retirement did not become effective. The employee, therefore, could not assert that the voluntary retirement was effective and claim benefits on that basis.
22. The Court said: (SCC p.282, para 7) "7. 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. Since the order accepting the voluntary retirement was a conditional one, the conditions ought to have been complied with.
Before the conditions could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective. Thereby no vested right has been created in favour of the respondent. The High Court, therefore, was not right in holding that the respondent has acquired a vested right and, therefore, the appellant has no right to withdraw the scheme subsequently." (emphasis supplied)
23. In J.N. Srivastava v. Union of India(1998) 9 SCC 559 a notice of voluntary retirement was given by an employee on 3-10-1989 which was to come into effect from 31-1-1990. The notice was accepted by the Government on 2-11-1989 but the employee withdrew the notice vide his letter dated 11-121989. It was held that withdrawal was permissible though it was accepted by the Government, since it was to be made effective from 31-1-1990 and before that date it was withdrawn.
24. In Shambhu Murari Sinha v. Project and Development India(2000) 5 SCC 621 (Shambhu Murari Sinha I) an application for voluntary retirement of an employee dated 1810- 1995 was accepted by the employer vide letter dated 307- 1997 with further intimation that "release memo along with detailed particulars will follow". The workman was actually relieved on 26-9-1997. In the meanwhile, however, by a letter dated 7-8-1997, he withdrew the application dated 18-101995, by which he sought voluntary retirement. It was held that the effective date of voluntary retirement was 26-9-1997 and before that date it was permissible for the workman to withdraw his retirement. The appellant was, therefore, held entitled to remain in service.
25. In Shambhu Murari Sinha v. Project and Development India Ltd(2002) 3 SCC 437 (Shambhu Murari Sinha II), the view taken in Shambhu Murari Sinha I was reiterated. It was held that when voluntary retirement was withdrawn by an employee, he continued to remain in service. The relationship of employer and employee did not come to an end and the employee had locus penitentiae to withdraw his proposal for voluntary retirement. He was, therefore, entitled to rejoin duty and the Corporation was bound to allow him to work.
26. On the basis of the above decisions, in our opinion, the learned counsel for the appellant is right in contending that though the respondent Company had accepted the resignation of the appellant on 4-1-1993 and was ordered to be relieved on that day, by a subsequent letter, he was granted casual leave from 5-1-1993 to 13-1-1993. Moreover, he was informed that he would be relieved after office hours on 15-1-1993. The vinculum juris, therefore, in our considered opinion, continued and the relationship of employer and employee did not come to an end on 4-1-1993. The relieving order and payment of salary also make it abundantly clear that he was continued in service of the Company up to 15-1-1993.
11. In the instant case also, though the respondents contend that the request of the applicant for voluntary retirement was accepted w.e.f. 12-07 2004, even as on 09th August, 2004 the applicant was serving. Annexure A-8 refers. The relationship of master and servant did continue even after 12-07-2004. Again, the request for withdrawal, for valid reason, of his application for voluntary retirement had been registered with the office of the respondents well in time, much before the effective date of 12-07-2004.
12. The Bangalore Bench of this Tribunal gave latitude to the respondents for consideration of the application and observed "in case the request is being accepted, the applicant will be accommodated in any vacancy that may arise hereafter and the period of absence from duty has to be regularized in accordance with law." This only means that the authority should consider the request and ascertain whether the same is a reasonable request and the respondents may refuse to accept the withdrawal letter only for valid reason of the application not being made on time or withdrawal of the request for voluntary retirement has been sought without ascribing any reason or illogical reason. None of the grounds for rejection applies in this case. Rejection by the authority is not on sound reasoning. The impugned orders at Annexure A-1, A-7 and A-9 are therefore, liable to be quashed and set aside, which is so ordered.
13. It is pertinent to note here that though according to the respondents, the applicant stood retired, no amount of terminal benefits has been either claimed by the applicant, much less paid to him. In other words, the applicant has not acted in any manner as a sequel to the so called retirement w.e.f. 12-07-2004. Even G.P. Accumulations have not been withdrawn by him.
14. Now the question is what should be the consequential relief available to the applicant. The first step is to reinstate the applicant. Next is to afford him the pay and allowances as if he has been in service without any impact of the so called retirement. He would be entitled to arrears of pay and allowances, plus annual increment as per law and also pay fixation as per the latest rules. His seniority as Accounts Officer shall be kept in tact. However, if any junior to the applicant has been promoted during the period from July, 2004 till date, the same shall not be disturbed. The case of the applicant could well be considered for promotion in the next DPC if the applicant is otherwise eligible for such a consideration.
15. Respondents shall pass suitable orders in this regard. Action for reinstatement should be completed within 2 months from the date of communication of this order and provisionally pay his pay and allowance last drawn in July-August, 2004, while action for fixation of pay taking into account the annual increment and revision in the wake of the Sixth Pay Commission Recommendation may be taken within three months thereafter and arrears arising out of the same be paid within one month from the date of fixation of his pay.
16. No cost.
Dated, the 31st October, 2008.
Dr.K.B.S.RAJAN JUDICIAL MEMBER vs