Karnataka High Court
H.L. Nagaraju And Another vs The Deputy General Manager, Personnel ... on 8 January, 1999
Equivalent citations: [2000(84)FLR41], ILR1999KAR1197, 1999(3)KARLJ186
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
ORDER
1. A common question arises for consideration in these two petitions, an answer to which turns mainly on a true and correct interpretation of Regulation 29 of Vijaya Bank Employees Pension Regulations. The regulation inter alia provides that any employee who has completed 20 years of qualifying service may retire from service by giving a notice of not less than three months to the Appointing Authority. Sub-regulation (4) of Regulation 29, precludes any employee who has elected to retire and who has given a notice to that effect from withdrawing the notice except with the specific approval of the Appointing Authority. Regulation 29 to the extent the same is relevant for the present reads thus:
"Regulation 29.--(1) On or after the 1st day of November, 1993 at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the Appointing Authority retire from service:
Provided that this sub-regulation shall not apply to an employee who is on deputation or on study leave 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:
Provided further that this sub-regulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement:
Provided that this sub-regulation shall not apply to an employee who is deemed to have retired in accordance with clause (1) of Regulation 2.
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(4) An employee, who has elected to retire under this regulation and has given necessary notice to that effect to the Appointing Authority, shall be precluded from withdrawing notice except with the specific approval of such authority:
Provided that the request for such withdrawal shall be made before the intended date of his retirement".
Time now to state a few facts:
The petitioners are both working as employees of the respondent-Bank. While petitioner in W.P. No. 31881 of 1998 was working as Assistant Manager, that in Writ Petition No. 32275 of 1998 was working as a Clerk. The first of the petitioners gave a notice of her intention to voluntarily retire from the service of the Bank effective from 15th of October, 1998. Before the said date however, the petitioner expressed her desire to continue in service upto the end of 30th of May, 1999 in terms of a communication dated 16th of September, 1998. She eventually withdrew her request to retire even from the later date in terms of yet another letter dated 6th of October, 1998, produced as Annexure-E to the writ petition. The Deputy General Manager who is admittedly the competent authority, under the regulations, considered the request for withdrawal of the notice for voluntary retirement and rejected the same by his order dated 22nd of October, 1998. By the same order the request for retirement was accepted subject to the petitioner complying with the provisions of the regulations and clearing the outstanding liabilities. Aggrieved the petitioner has questioned the validity of the said order.
2. The facts leading the filing of the connected writ petitions are almost similar. In that case also a notice for retirement was issued by the petitioner on the 30th of July, 1998, proposing to retire from the Bank's service with effect from 30th of October, 1998. Before the said date the request was withdrawn in terms of letter dated 7th of September, 1998. This withdrawal was considered by the competent authority and rejected by order dated 19th of September, 1998 on the ground that the reasons supporting the same were not convincing. The request for voluntary retirement made earlier was accordingly accepted subject to the petitioner complying with the provisions of the pension regulations and clearing the outstanding liabilities if any. Aggrieved, the petitioner has questioned the validity of the said order in W.P. No. 32275 of 1998.
3. Mr. Narasimhan, Counsel appearing for the petitioners argued that the petitioners had an indefeasible right to withdraw their request for retirement before the date on which such retirement or resignation would take effect. In support he placed reliance upon the decision of the Supreme Court in Union of India v Gopal Chandra Misra and Others and a Division Bench decision of this Court in K.R. Raghuveer v General Manager, Vijaya Bank and Another. Both these decisions unequivocally recognise the right of an employee to withdraw a request for retirement or resignation from service before the date such resignation or retirement takes effect. The difficulty however arises on account of the provisions contained in Regulation 29(4) extracted earlier, according to which, any employee who has elected to retire from the service of the Bank is precluded from withdrawing the request except with the approval of the Appointing Authority. The fact that the requests for voluntary retirement made by the petitioners had been withdrawn before the date on which the retirement would become effective is not in dispute. The only question then is whether the Appointing Authority was justified in declining approval to the withdrawal sought by the petitioners. Ms. Madhuvita Bagchi, Counsel for the respondents argued that the Appointing Authority could refuse approval, in case the employee did not establish a change in circumstances that could justify the withdrawal of his request for retirement. This, argued the learned Counsel, the petitioners had failed to establish in the present case. Mr. Narasimhan on the other hand urged that the test to be applied in cases where the withdrawal has to be subject to the approval of the Appointing Authority is not whether the employee concerned has made out a good case for withdrawal. The test on the contrary is whether the Appointing Authority has good reasons for refusing the permission to the employee concerned to withdraw the request for retirement. Considerable reliance was placed by Mr. Narasimhan, upon the decision of the Supreme Court in Balram Gupta v Union of India and Another, where the rule that fell for interpretation was in pari materia with Regulation 29(4) supra. The request for withdrawal of the notice of retirement, in that case had been rejected, on the ground that there was no material change in the circumstances in which the request was made and those in which the same was sought to be withdrawn. The Court observed:
"What is important in this connection to be borne in mind is not what prompted the desire to withdrawal. What is important is what prompted the Government from withholding the withdrawal".
The Court declared that in modern age, there could be no embargo upon the employees' choice or freedom and that unless the employer established that he had made arrangements acting upon the resignation or letter of retirement submitted by the employee, on offer to retire or resign could be withdrawn. The following observations are in this regard pertinent:
"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 so quick succession that it cannot be said that any administrative set up or arrangement was affected.
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 appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complication 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".
4. In the instant case, the only reason which the respondent-Bank has indicated in the orders rejecting the petitioner's request for withdrawal of the notice for voluntary retirement is that there has been no change in the circumstances and that the reason for withdrawal was not convincing. That however is not the true test to be applied. As observed by their Lordships in Balram Gupta's case, supra, what is important is not whether there was a change in the circumstances but whether the employer had any good reason to refuse withdrawal of the letter of resignation or notice for voluntary retirement. Judged from that angle the orders passed by the respondents do not set out any reason much less an acceptable one to sustain the refusal. It is not the case of the respondents that acting upon the notices received by it, it had made arrangements which could tantamount to changing the Bank's position to its detriment. It is also not its case that any arrangement had been made for filling up posts in anticipation of the vacancies that would occur on the retirement of the petitioner. No reason is set out even in the objections filed by the respondent-Bank to justify the refusal of permission to withdraw the notice of retirement. There is no gainsaid that the power available to the Appointing Authority under Regulation 29(4) has to be exercised fairly and reasonably. Although unlike the guidelines that were noticed by the Supreme Court in Balram Gupta's case, supra, the Bank has not issued any guidelines regulating exercise of its power of granting or refusing approval to the withdrawal of request for voluntary retirement, yet, the validity of any such order refusing such permission shall have to be examined and tested on the touchstone of fairness and reasonableness. Seen thus just because the reason given by the employee for withdrawing the letter of voluntary retirement does not state a reason which can be said to be overwhelming, is not enough for the Appointing Authority to decline permission. It is on the contrary existence of reasons which would justify refusal of such permission that have to be set out by the employer. The impugned orders do not measure upto that requirement of law and are therefore not sustainable.
5. These petitions accordingly succeed and are hereby allowed. The impugned orders are quashed and the respondent-Bank directed to reinstate the petitioners in service with all consequential benefits. The parties are however left to bear their own costs.