Union of India & ANR Vs. Wing
Commander T. Parthasarathy [2000] INSC 554 (10 November 2000)
Doraiswamy
Raju, & Shivaraj V. Patil. Raju, J.
L.I.T.J
The respondent was commissioned in the Indian Air Force on 21.1.1963 as an
officer in the Accounts Branch and in due course he successively rose to the
rank of Wing Commander by virtue of promotions earned by him, on 17.1.1989.
Having regard to certain problems in the family due continued illness of his
wife and need to face other commitments and responsibilities he was constrained
to seek for pre-mature retirement. He submitted an application dated 21.7.1985
praying for pre-mature retirement from service with effect from 31.8.1986 with
6 months leave preparatory to retirement said to be due to him with the
admissible full non-effective benefits. It is a fact that as expected of him he
also furnished a certificate stating that he was aware that any request made by
him later for the cancellation of his application for pre-mature retirement
would not be accepted.
When
the matter was under process before the concerned Authorities, on 6.11.85 the
respondent seem to have moved an Eamendment to his earlier application stating
that the actual date of his release could be decided taking into account the pensionary
recommendations/requirements of the IVth Pay Commissions Report which was
expected to come in November 1985. In view of this the date of retirement
sought with effect from 31.8.86 itself, according to the respondent stood
altered before any decision was taken or communicated. On 19.2.86, the
respondent on being able to, as claimed by him surmount the health problems of
his wife and also sort out the other difficulties, submitted an application
seeking to withdraw the application earlier submitted for pre-mature retirement
from service, with a favourable recommendation thereon by the group captain -
Command Accounts Officer. While matters stood thus, the respondent was served
on 7.3.86 with a communication dated 6.3.86 that information has been received
from AIR Headquarter in their letter dated 20.2.86 that the respondent will
pre-maturely retire from service at his own request with effect from 31.8.86,
with certain other consequential directions. The request made for withdrawal of
the application for pre-mature retirement was also not accepted on the ground
that the Headquarters does not accede to requests for such cancellation after
initial approval of the same by RRM and having regard to the certificate given
by the respondent himself. The request further made on 8.7.86 to change at
least the date of retirement, did not meet with success and the same was also
turned down under a communication dated 10.7.86 mailed on 28.7.86 and served on
the respondent on 5.8.86.
Aggrieved,
the respondent filed Writ Petition No.16105 of 1986 before the Karnataka High
Court seeking to quash the order of pre- mature retirement with effect from
31.8.86 and for consequential direction to continue the respondent in service
with all consequential and attendant benefits. The Departments stand before the
High Court as is now before us was that under the existing policy there was no
scope for withdrawing the application for pre-mature retirement, once
submitted, that in the light of such policy the respondent also gave a
certificate that he was aware of the fact that his subsequent request for
withdrawal will not be accepted and that such a policy came to be adopted in
public interest in the light of the experience gained from the move of the officers
often to seek pre-mature retirement when there is a difficult duty to be
performed and attempting to seek for cancellation after tiding over/avoiding
the same and consequently, no exception could be taken to the action of the
Department.
The
learned Single Judge overruled the objection of the Department both on the
ground that in the case on hand it has not been averred or substantiated that
the petitioner offered for pre- mature retirement as a camouflage to get over
any difficult assignment of duties and the subsequent change of mind was to
gain any undue advantage as well as for the reason that when the offer of the
respondent stood withdrawn on 19.2.86, the subsequent action taken by the
competent Authority on 20.2.86 and onwards will be of no effect, having been
taken on a letter or offer which by then had no existence in the eye of law.
The impugned proceedings were quashed and consequential directions also came to
be issued by an order dated 2.11.95. An appeal filed before the Division Bench
of the High Court in W.A.
No.1146
of 1996 also did not meet with success, necessitating the appellants to come
before this Court, on further appeal.
The
learned counsel for the appellant reiterated the stand that having regard to
the policy decision of which the respondent was said to be also aware and
having given a certificate at the time of submission of the application for
pre-mature retirement that he was aware of the fact that his request for
withdrawal/cancellation made subsequently will not be accepted, the High Court
ought not to have countenanced the claim of the respondent. Strong reliance has
also been placed on the decision reported in Raj Kumar vs Union of India [1968
(3) SCR 857] to contend that the application for pre-mature retirement having been
approved on 14.1.86 by the RRM even prior to the withdrawal letter dated
19.2.86, the respondent could not be given any relief, as claimed by him in his
Writ Petition. Per contra, the learned counsel tried to justify the orders of
the High Court by placing strong reliance also on the decisions reported in Balram
Gupta vs Union of India and Another [1987 (3) SCR 1173] and Union of India vs
Sri Gopal Chandra Misra & Others [1978 (3) SCR 12].
We
have carefully considered the submissions of the learned counsel appearing on
either side. The reliance placed for the appellants on the decision reported in
Raj Kumars case (Supra) is inappropriate to the facts of this case. In that
case this Court merely emphasised the position that when a public servant has
invited by his letter of resignation determination of his employment his
service clearly stands terminated from the date on which the letter of
resignation is accepted by the appropriate Authority and in the absence of any
law or rule governing the condition of the service to the contrary, it will not
be open to the public servant to withdraw his resignation after it is accepted
by the appropriate Authority and that till the resignation is accepted by the
appropriate Authority in consonance with the rules governing the acceptance,
the public servant concerned had Locus Penitentiae but not thereafter. This
judgment was the subject matter of consideration alongside the other relevant
case law on the subject by a Constitution Bench of this Court in the decision
reported in Union of India Etc. vs Gopal Chandra Misra and Others (AIR 1978 SC
694). A request for pre-mature retirement which required the acceptance of the
competent or appropriate Authority will not be complete till accepted by such
competent Authority and the request could definitely be withdrawn before it
became so complete. It is all the more so in a case where the request for
pre-mature retirement was made to take effect from a future date as in this
case. The majority of the Constitution Bench analysed and declared the position
of law to be as hereunder:
51. It
will bear repetition that the general principle is that in the absence of a
legal, contractual or constitutional bar, a prospective resignation can be
withdrawn at any time before it becomes effective, and it becomes effective
when it operates to terminate the employment or the office-tenure of the resignor.
This general rule is equally applicable to Government servants and
constitutional functionaries. In the case of a Government servant or functionary
who cannot, under the conditions of his service/or office, by his own
unilateral act of tendering resignation, give up his service/or office,
normally, the tender of resignation becomes effective and his service/or
office-tenure terminated, when it is accepted by the competent authority. In
the case of a Judge of a High Court, who is a constitutional functionary and
under Proviso (a) to Article 217 (1) has a unilateral right or privilege to
resign his office, his resignation becomes effective and tenure terminated on
the date from which he, of his own volition, chooses to quit office. If in
terms of the writing under his hand addressed to the President, he resigns in praesenti
the resignation terminates his office-tenure forthwith, and cannot therefore,
be withdrawn or revoked thereafter. But, if he by such writing, chooses to
resign from a future date, the act of resigning office is not complete because
it does not terminate his tenure before such date and the Judge can at any time
before the arrival of that prospective date on which it was intended to be
effective withdraw it, because the Constitution does not bar such withdrawal.
[Emphasis
supplied] This Court had again an occasion to consider the question as to the
principle of law to be applied to a case of resignation made to become
effective on the expiry of a particular period or from a future date as desired
by the employee in Punjab National Bank vs P.K. Mittal (AIR 1989 SC 1083). It
was held therein that resignation being a voluntary act of employee, he may
choose to resign with immediate effect or with a notice of less than 3 months
if the employer agrees to the same or he may also resign at a future date on
the expiry or beyond the period of 3 months as envisaged under the governing
regulation in that case, even though there is no such consent from the
employer, and that, it was always open to the employee to withdraw the same
before the date on which the resignation could have become effective.
So far
as the case in hand is concerned, nothing in the form of any statutory rules or
any provision of any Act has been brought to our notice which could be said to
impede or deny this right of the appellants. On the other hand, not only the
acceptance of the request by the Headquarters, the appropriate Authority was
said to have been made only on 20.2.86, a day after the respondent withdrew his
request for pre-mature retirement but even such acceptance in this case was to
be effective from a future date namely 31.8.86.
Consequently,
it could not be legitimately contended by the appellants that there was any
cessation of the relationship of master and servant between the Department and
the respondent at any rate before 31.8.86. While that be the position
inevitably the respondent had a right and was entitled to withdraw or revoke
his request earlier made before it ever really and effectively became
effective.
The
reliance placed upon the so-called policy decision which obligated the
respondent to furnish a certificate to the extent that he was fully aware of
the fact that he cannot later seek for cancellation of the application once
made for pre-mature retirement cannot, in our view, be destructive of the right
of the respondent, in law, to withdraw his request for pre-mature retirement
before it ever became operative and effective and effected termination of his
status and relation with the Department. When the legal position is that much
clear it would be futile for the appellants to base their rights on some policy
decision of the Department or a mere certificate of the respondent being aware
of a particular position which has no sanctity or basis in law to destroy such
rights which otherwise inhered in him and available in law. No such deprivation
of a substantive right of a person can be denied except on the basis of any
statutory provision or rule or regulation.
There
being none brought to our notice in this case, the claim of the appellants
cannot be countenanced in our hands.
Even
that apart, the reasoning of the High Court that the case of the respondent
will not be covered by the type or nature of the mischief sought to be curbed
by the so-called policy decision also cannot be said to suffer any conformity
in law, to warrant our interference.
For
all the reasons stated above, the appeal fails and shall stand dismissed. The
time limit stipulated by the learned Single Judge to settle the claims and
consequential benefits due to respondent shall commence and be computed from
this date, for compliance.
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