Central Administrative Tribunal - Ernakulam
K.Shaji vs Union Of India on 12 April, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.300/12
Friday this the 12th day of April 2013
C O R A M :
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
K.Shaji,
S/o.Balakrishnan,
Overseer III, Public Works Department,
Koyilandi Building Section, Calicut.
(formerly Junior Engineer (Civil), MES No.123578,
Office of the Assistant Garrison Engineer B/R(P) No.2,
Garrison Engineer (P) No.1, Ezhimala Naval Academy PO,
Kannur, Kerala - 670 310.
Residing at Shobha, Parambathuparambu,
PO Puthiyangadi, Calicut - 673 021. ...Applicant
(By Advocate Mr.R.Sreeraj)
V e r s u s
1. Union of India,
represented by its Secretary to the Govt. of India,
Ministry of Defence, New Delhi - 110 001.
2. The Secretary to the Govt. of India,
Ministry of Personnel, Public Grievances and Pension,
New Delhi - 110 001.
3. The Chief Engineer (NW),
Military Engineer Services, Kochi - 4. ...Respondents
(By Advocate Mr.Sunil Jacob Jose,SCGSC)
This application having been heard on 9th April 2013 this Tribunal
on 12th April 2013 delivered the following :-
O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER The applicant while working as Junior Engineer in the M.E.S. Organization, had tendered his resignation vide his representation dated 21-10-2011 and the same was accepted w.e.f. 25th November, 2011 and so communicated to the applicant by letter dated 21-11-2011. The applicant was also relieve of his duties. By a communication dated 12-01-2012 he had requested for withdrawal of his resignation and requested for permission to join back his duty as Junior Engineer. The respondents however, rejected the request and hence this OA seeking the following reliefs :-
1. To declare that the Annexure A-1 letter rejecting the applicant's request for withdrawing his resignation from service is illegal, arbitrary, unjust, unreasonable and irrational and that the same violates Art.14 and 16 of the Constitution of India and quash Annexure A-1.
2. To direct the respondents to accept the applicant's request for withdrawing his resignation from service without further delay and if necessary by getting relaxation of the Rules from the 2nd respondent and permit the applicant to resume his duties in the MES as Junior Engineer (Civil) with all consequential benefits as expeditiously as possible.
3. Such other relief as may be prayed for and this Tribunal may deem fit to grant.
4. Grant the cost of this Original Application.
2. Respondents have contested the OA. They have stated that the applicant in his representation had stated that he would procure appointment in the Kerala Public Works Department in his native place and that his wife is employed in Calicut University. He had not at any time earlier (save at the time of tendering his resignation) informed the organization about his having applied for the said post. It has also been stated that for retaining a lien, intimation ought to have been given.
3. The applicant has in his rejoinder contended that more than what has been indicated in the rejection letter, there cannot be any further improvement as held by the Apex Court in the case of Mohinder Singh Gill vs Chief Election Commissioner (AIR 1978 SC 851). The applicant has contended that Rule 26(4) of the CCS(Pension) Rules does not contemplate anything about lien.
4. Counsel for the applicant argued that in a number of cases, the Apex Court had held that withdrawal of application for voluntary retirement had been allowed. (See the decision in the case of Bank of India v. O.P. Swarnakar (2003) 2 SCC 721, Kishan Prakash Sharma v. Union of India (2001) 5 SCC 212, Union of India v. Wing Commander T. Parthasarathy (2001) 1 SCC 158, Punjab National Bank v. P.K. Mittal 1989 Supp (2) SCC 175, Balram Gupta v. Union of India 1987 Supp SCC 228, Union of India v. Gopal Chandra Misra (1978) 2 SCC 301). The counsel also stated that public interest would be served if the applicant was reinstated since there has always been deficiency in the complement of Junior Engineer.
5. Counsel for the respondents reiterated the contents of the reply and additional reply.
6. Arguments were heard and documents perused. First as to the contention that the reply given cannot be further improved by way of affidavit. In Mohinder Singh Gill decision, the Apex Court has held -
"8. The second equally relevant matter is 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."
7. In the instant case, the rejection order is purely based on the fact that the reasons given for withdrawal do not fall within the provisions of Rule 26 (4) and (5) of the Pension Rules. In the reply also the respondents had stuck to the same. That is the spinal reason. Others are in the nature of reply to the contentions contained in the O.A. Again, the Apex Court distinguished the decision in the case of Mohinder Singh Gill in the case of Sachidanand Pandey vs State of W.B. (1987) 2 SCC 295 stating as under:-
"the Court was dealing with a statutory order made by a statutory functionary who could not therefore, be allowed to supplement the grounds of this order by later explanations, the present is a case where neither a statutory function nor a statutory functionary is involved."
8. Thus one cannot apply the decision in the case of Mohinder Singh Gill in every case. Again, as stated earlier, the grounds or reasons alien to the spinal ground have not been emphasized by the respondents.
9. One more aspect is that in so far as the case in hand is concerned, it is a case of resignation and not voluntary retirement. Resignation is different from voluntary retirement. Other cases decided by the Apex Court invariably relate to withdrawal of application for voluntary retirement. In a recent case, where the Tribunal allowed the OA where the challenge was refusal to accept the withdrawal letter of application for voluntary retirement, the High Court had upset the same and the Supreme Court had refused to interfere even when it related to voluntary retirement.
10. In view of the above, we find no merit in the OA and, is therefore, dismissed. No cost.
(Dated this the 12th day of April 2013) Dr.K.B.S.RAJAN JUDICIAL MEMBER asp