P. Lal
Vs. Union of India & Ors [2003] Insc 53 (5 February 2003)
Syed
Shah Mohammed Quadri & S. N. Variava.
[Arising
out of SLP (C) Nos. 20963-20964 of 2001] S. N. VARIAVA, J.
Leave
granted.
These
Appeals are against a Judgment dated 4th July, 2001.
Briefly
stated the facts are as follows:
Respondent
No. 3 worked in the Research and Analysis Wing (RAW) of the Government of India
from 1982 to September 1990.
With
effect from October 1990 Respondent No. 3 was repatriated to the State of Punjab. He did not join duty till 30th September, 1991.
On 24th October 1991, i.e. 23 days later, Respondent No.
3 applies for Ex-India leave. Even before the leave could be sanctioned
Respondent No. 3 leaves India and goes to England. From England he again applies for further leave.
Leave is sanctioned till 10th
January, 1992.
Respondent No. 3 is informed that no further extension would be granted even on
medical grounds. Respondent No. 3 still does not join duty. He then sends in,
on 30th June, 1992, an application for voluntary
retirement. However, on 19th
July, 1992, he sends a
telegram withdrawing his application for voluntary retirement. As Respondent
No. 3 continues to remain absent he was charge-sheeted on 14th January, 1993. On 12th April, 1993 he reports for duty in the Office of the D.G.P., Punjab.
On 5th May, 1993 he again applies for voluntary
retirement with immediate effect. He deposits Rs. 30,870/- in lieu of three
months' advance notice. Respondent No. 3 does not even wait for his application
to be accepted. He again goes away abroad. As Respondent No. 3 had applied for
voluntary retirement DGP, Punjab
recommends that the charge-sheet against him be withdrawn. On 27th September, 1993 the Government of India rejects the
request for voluntary retirement on the ground that three months' notice period
had not been given. The Government of Punjab by its representations dated 29th September, 1993 and 8th July, 1994 requests the Government of India to accept the application
for voluntary retirement. This request is again turned down by the Government
of India on 13th
September, 1994. As
Respondent No. 3 was not even in India and was not reporting for duty the
Government of Punjab, on 29th November, 1994, points out to the Government of
India that Respondent No. 3 has not been attending office since 5th May, 1993
and that his three months' notice period may be considered from the date of
application i.e. 5th May, 1993 and he may be allowed to voluntary retirement.
On 2nd March, 1995 the Government of India permits Respondent
No. 3 to retire from service with effect from May, 1993. It may be mentioned
that in the meantime, on the recommendation of the D.G.P., Punjab, the charge-sheet had been dropped
against Respondent No. 3. This was done in view of the fact that he was
retiring voluntarily.
In his
application for voluntary retirement, Respondent No. 3 had given his contact
address as follows:
"Sh.
R. K. Sharma, R-862, New Rajinder Nagar, New Delhi - 110 060." The order of the Government of India dated 2nd March, 1995 permitting Respondent No. 3 to
retire from service was forwarded to Respondent No. 3 at the above mentioned
address. It was however received back undelivered from the postal authorities
with the remarks "despite repeated visits, could not be delivered to
addressee as he was not available". The D.G.P., Punjab therefore deputes a Constable to
deliver the Order to Respondent No. 3. When the Constable goes to the above
address the father-in-law of Respondent No. 3 states that no officer by name R.
K. Sharma stays in this house. The father-in- law further states that he knows
nothing about R. K. Sharma.
On 18th April, 1995 Respondent No. 3 withdraws his
request for voluntary retirement. Significantly, the address given in his
letter is the above mentioned address. This shows that Respondent No. 3 was
purposely evading receipt of Government Order dated 2nd March, 1995. On 20th
June, 1995 the
Government of India rejects his request for withdrawal of voluntary retirement
on the ground that the period within which such request could be made had
already expired.
By his
letters dated 20th
July, 1995 and 4th March, 1996 Respondent No. 3 again requests the
Government of India to allow him to withdraw his application for voluntary
retirement. Surprisingly, on 14th August, 1997,
the Government of India accepts the request of Respondent No. 3 for withdrawal
of voluntary retirement.
At
this stage it must be mentioned that documents brought on record show that
between the period 15th March, 1996 and 12th August, 1997 Respondent No. 3 took
up employment with a foreign firm by name M/s. California Designs and
Constructions Inc. and represented the firm, as its director, before various
departments of the Government of Punjab and the Government of Haryana. It is
being assumed that Respondent No. 3 concealed this fact from the Government of
India and that the Government of India accepted his request for withdrawal of
voluntary retirement in ignorance of this fact.
The
Appellant therefore approached the Central Administrative Tribunal against
re-induction of Respondent No. 3 into service. The Appellant claims that by
such re-induction his seniority in the cadre gets affected. The Government and
Respondent No. 3 contested the application. Before the Central Administrative
Tribunal it was urged that the Appellant had no locus to challenge the action
of the Government in permitting Respondent No. 3 to withdraw his application
for voluntary retirement. It was also urged that the Central Administrative
Tribunal had no jurisdiction. The Central Administrative Tribunal negatived
both these contentions. The Central Administration Tribunal holds that
Respondent No. 3 having left without waiting for his application to be
sanctioned and Respondent No. 3 having taken up employment with a foreign
company amounted to severance of the relationship of master and servant. It was
held that as the severance had attained finality the Government of India had no
jurisdiction to pass the impugned order dated 14th August, 1997. It was held that the effect of the Order was to give
lateral entry into service which was not permissible. It was held that
Respondent No. 3, by his conduct, having severed the relationship of master and
servant could not now be allowed to come back into service. By its Order dated 3rd February, 1998 the Central Administrative Tribunal
quashes the Order dated 14th
August, 1997 allowing
Respondent No. 3 to withdraw his voluntary retirement.
Respondent
No. 3 as well as the Government of India file Writ Petitions in the Punjab
& Haryana High Court challenging the order dated 3rd February, 1998 passed by the Central
Administrative Tribunal. On 10th September, 1998 these Writ Petitions were taken up for admission. At that stage a
statement is made on behalf of Respondent No. 3 (herein) that he will not claim
seniority over the Appellant (herein).
During
the pendency of the Writ Petitions, the Government of India produces an
affidavit of one Malkait Singh Sidhu who claimed that he was President of M/s.
California Designs and Construction Inc.
In the
affidavit it was claimed that Respondent No. 3 was not a Director in this
Company. It was claimed before the High Court that Respondent No. 3 had not
taken employment with this firm. That this was a false stand came to light
after arguments in the two Writ Petitions were over. The High Court has, in the
impugned judgment, set out what happened. The relevant portion reads as
follows:
"Before
proceeding further, we deem it proper to mention that after conclusion of the
arguments, Shri P. Lal filed C. M. 27489-50 of 2000 in C.W.P. No. 6196 of 1998
for placing on record additional affidavit dated 18.11.2000 along with Annexure
R1/26 to R1/29 to show that between 1995 and 1997, Shri R. K. Sharma had
actively represented M/s. California Design and Construction INC for the
purpose of award of contract for construction, erected and commission of ten
sewage treatment plants under Yamuna Action Plan. He also filed C.M. No.
27491-92 of 2000 in C.W.P. No. 6461 of 1998 for placing on record additional
affidavit dated 18.11.2000 and documents Annexure R3/26 to R3/29, C. M. No.
28355-56 of 2000 was also filed on behalf of Shri R. K. Sharma for placing on
record his affidavit dated 27.11.2000 and documents Annexures P35 to P40 to
show that he was no longer Director of M/s. California Designs and
Constructions India Ltd.
We may
also mention that while hearing C.W.P. No 14542 of 2000 filed by M/s California
Design and Construction India Ltd. for quashing the action taken by the
Income-tax authorities to recover tax from the payment made to it by the
Government of Haryana, counsel representing the petitioner in that case had
produced a copy of the agreement entered into between his client and the State
of Haryana which was signed by Shri R.K. Sharma on behalf of the petitioner-company
as its director and he had represented to the Government of Haryana that he was
the Managing Director of the said company. After taking note of this, we had
directed the listing of these petitions for further consideration. On
20.11.2000, counsel appearing for Union of India in C.W.P. No. 6461 of 1998
sought adjournment to place on record an affidavit on behalf of Government of
India explaining its position on the issue of employment of Shri R. K. Sharma.
Thereafter,
Shri R. K. Mitra, Deputy Secretary, Ministry of Home Affairs, New Delhi filed
an affidavit dated 25.11.2000 stating therein that the Government of India
never made a statement that Shri R. K. Sharma had not taken employment with a
foreign company. At the same time, he averred that it is for the State
Government to take appropriate action in the matter." This shows that
Respondent No. 3 had attempted to mislead the High Court of Punjab and Haryana.
He obviously had also mislead the Government of India by getting them to file,
before the High Court of Punjab and Haryana, the affidavit of Malkait Singh. In
any event now the Government of India and the Government of Punjab know that
Respondent No. 3 had not just absented himself from duty but had in fact taken
up employment with a foreign firm and represented it with various departments
of the State Government. Their conduct in continuing to side with Respondent
No. 3 is to say the least surprising.
The
High Court, after considering the submissions of the parties, negatives the
contentions that the Appellant did not have locus. It is held that the Central
Administrative Tribunal had jurisdiction. The High Court has adversely
commented upon the conduct of Respondent No. 3 in going abroad without prior
permission; in remaining absent for such a long time, in taking up employment
with a foreign company.
The
High Court then holds that as the order of the Government of India dated 2nd March, 1995 was not communicated to Respondent
No. 3 the relationship of master and servant continued. It is held that
Respondent No. 3 was therefore entitled to treat himself as continuing in
service and was not even required to submit an application for withdrawal of
his request for voluntary retirement. The High Court holds that the decision of
the Government of India to allow Respondent No. 3 to withdraw the request for
voluntary retirement cannot be termed as illegal or vitiated due to want of
jurisdiction. The Writ Petitions were accordingly allowed. The High Court
however directed that disciplinary proceedings be held against Respondent No.
3. Even though, on 10th
September, 1998 a
statement had been made that Respondent No. 3 would not claim seniority over
the Appellant, the High Court in the impugned Order has held as follows:
"In
the result, the writ petitions are allowed. Order dated 3.2.1998 passed by the
Tribunal is set aside. This shall be subject to the direction that Shri R. K.
Sharma shall not be assigned seniority over Shri P. Lal and other officers, who
had been promoted during his absence from duty till the government takes a
comprehensive decision on the allegations of his absence from duty, going
abroad without prior permission, taking up employment with a foreign company
and joining the Board of Directors of a company registered in India and he is
exonerated in the departmental enquiry, if any, held in these matters."
Thus now the High Court has left it open for Respondent No. 3 to claim
seniority if he is exonerated in the departmental enquiry or if the
departmental enquiry is dropped. As is being set out hereinafter there is
already a proposal to drop the departmental enquiry.
At
this stage it is appropriate to mention that after notice was issued on these SLPs
Respondent No. 3 filed an affidavit in this Court in which he inter alia states
as follows:
"Due
to the malicious and selfish conduct of the Petitioner and the State, the
answering respondent was left with no other option but to believe that his
request for withdrawal of voluntary retirement has been rejected and,
therefore, the petitioner took up an employment in a private firm in an
honorary capacity, from 28.3.1996 to 12.8.1997.
xxx xxx
xxx V. The allegation that the answering respondent immediately on submitting
his application for voluntary retirement worked with M/s. California Design and
Construction Inc. U.S.A. as Managing Director is not
admitted and hence denied. It is further submitted that the answering
respondent did not take any employment in India in any company, concern or firm till 28.3.1996. It is however submitted
that on recovery from his ill-health and in absence of any response to his
application for voluntary retirement, the answering respondent filed an
application dated 18.4.1995 to withdraw the request for voluntary retirement
and the same was rejected by Union of India on 20.6.95. The answering
respondent herein was left with no option but to take a job in a private firm
in India in honorary capacity to keep himself occupied. The said employment was
only for a short period from 28.3.1996 to 12.8.1997.
xxx xxx
xxx It is submitted that the answering respondent took an employment in a
private firm in India in an honorary capacity on 28.3.1996, as he neither
received any reply to various representations made by him for withdrawal of
request for voluntary retirement nor was given any posting order till 18.8.98.
It is submitted that Union of India erroneously passed the order dated
20.6.1995 due to lack of correct and true information furnished by the State
Government. The State Government illegally, erroneously and unilaterally
severed the master servant relationship.
The
State Government's following actions, made the answering respondent come to the
conclusion that his services are no more required by the authorities :-
i) No
posting order given to the answering respondent pursuant to his joining report
dated 18.4.1995.
ii)
For all administrative and practical purposes, the State Government struck off
the name of the answering respondent from the Punjab IPS Cadres Gradation List.
iii)
No salary given to answering respondent during the period 5.5.1993 to
18.8.1998.
iv)
Eight letters issued from 26.6.1995 to 4.4.1997 by State Government declaring
answering respondent has retired from service.
(emphasis
supplied) It is further submitted that the answering respondent on the basis of
sequence of events and conduct of parties was compelled to believe that his
employment in a private organization would not violate any rules as he had been
retired by the State Government. Accordingly, the State Government or for that
matter the petitioner cannot have any grievance on that account and are estopped
from making such reckless allegations." The Appellant has now produced a
letter dated 15th
March, 1996 addressed
by Respondent No. 3 as a Director of M/s. California Design and Construction
INC. to the Superintendent Engineer to the Public Health Circle, Faridabad. This shows that even on 15th March, 1996 Respondent No. 3 was a director of
this foreign firm. His statement of oath before this Court that he took
employment with effect from 28th March, 1996
is shown to be patently false. It is clear that he was employed with the
foreign firm even prior to 28th March, 1986.
Before
we consider the arguments it is important to set out certain other facts.
Respondent No. 3 had also filed a Special Leave Petition before this Court
challenging that portion of the impugned judgment which held that the Appellant
had locus; that the Central Administrative Tribunal had jurisdiction and the
directions to hold a disciplinary enquiry against him. The Special Leave
Petition was dismissed by an Order dated 10th December, 2001. This Court however clarified that
the enquiry must be conducted without being influenced by any observations made
by the High Court. Thus so far as Respondent No. 3 is concerned the findings in
the impugned judgment, that the Appellant had locus and that the Central
Administrative Tribunal had jurisdiction, have become final.
In
these Special Leave Petitions by Order dated 11th January 2002, this Court
stayed the impugned Judgment. This necessarily meant that the Judgment of the
Central Administrative Tribunal became effective again. The effect of the order
of the Central Administrative Tribunal is that Respondent No. 3 ceased to be in
service. In view of the above position the Principal Secretary to the
Government of Punjab, by an Order dated 23rd January, 2002, held that
Respondent No. 3 ceased to be in service with immediate effect in view of the
order of this Court. Surprisingly another Principal Secretary, one Mr. S. K. Singh,
by an Order dated 31st March, 2002 withdraws the earlier order dated 23rd
January, 2002. Respondent No. 3 immediately assumes charge as Inspector General
of Police on 31st March, 2002. By an Order dated 18th April, 2002 he is posted
against the vacant post of ADGP / Internal Vigilance Cell to look after the
Litigation Wing and Internal Vigilance Cell. On 10th May, 2002 these facts are
then brought to the notice of this Court. This Court therefore directs the
Principal Secretary to state on affidavit as to how the Order dated 31st March,
2002 came to be passed in violation of the order passed by this Court on 11th
January, 2002. The Principal Secretary has filed an affidavit dated 13th June,
2002 stating that the earlier Order of 23rd June, 2002 had been passed by the
Principal Secretary to the Government of Punjab, but that on a representation
submitted by Respondent No. 3 it was found that the power to relieve an officer
from service rests with the Government of India and not with the Government of
Punjab. It was stated that it was found that the Order dated 23rd January, 2002
was without jurisdiction and deserved to be withdrawn and was therefore
withdrawn. It was stated that the subsequent order was passed after obtaining
legal advice. The reasoning given is entirely untenable. The effect of the
order of the Central Administrative Tribunal was that Respondent No. 3 ceased
to be in service. Respondent No. 3 was not being relieved by Order dated 23rd
January, 2002. The Order dated 23rd January, 2002 merely informed Respondent
No. 3 that he had ceased to be in service. In any event, in view of the stay
order, Respondent No. 3 could not have been given a posting order. By an Order
dated 24th May, 2002, the posting order of R. K. Sharma has been held in abeyance
pending decision in these Appeals. But Respondent No. 3 is still allowed to
continue in service in breach of an interim order of this Court and in
violation of the order of the Central Administrative Tribunal.
One
last fact which requires to be mentioned is that as per the direction of the
High Court a charge-sheet has been issued against Respondent No. 3 on 27th
September, 2001. As has now become common for Respondent No. 3, he again
applies for voluntary retirement on 10th October, 2001. The D.G.P. again
recommends that the charge sheet be dropped as he has applied for voluntary
retirement. Following the recommendation for dropping of the charge sheet
Respondent No. 3 has, on 26th November, 2001, again withdrawn his request for
voluntary retirement.
The
submissions of the parties have to be considered in the light of the above
facts.
Mr. Jethmalani
submitted that Respondent No. 3 is from the 1967 Batch of I.P.S. Officer,
whereas the Appellant is from the 1969 Batch, i.e. two years junior to him. He
submitted that it is for the Government to decide whether or not to accept the
request of Respondent No. 3 for withdrawal of voluntary retirement. He
submitted that the Appellant had no locus to challenge the action of the
Government in accepting the request for withdrawal of voluntary retirement. He
submitted that the Central Administrative Tribunal had no jurisdiction to
entertain the Petition filed by the Appellant. He submitted that under Section
14 of the Administrative Tribunals Act, 1985, the Tribunal exercises such
jurisdiction as was exercised by the Courts earlier. He submitted that it is
settled legal position that the Court only protect legal rights. He submitted
that mere expectations or accidental windfalls do not give any right and Courts
would not protect claims based on expectations or accidental windfalls. He
submitted that Section 19 of the Administrative Tribunal Act provides that it
is only a "person aggrieved" who can file an application before the
Tribunal. In support of his submission he relied upon the cases of Thammanna v.
K. Veera Reddy reported in (1980) 4 SCC 62 and Bar Council of Maharashtra v. M.
V. Dabholkar reported in (1975) 2 SCC 702, wherein it has been held that a
person aggrieved must be a man who has suffered a legal grievance i.e. a man
who has been wrongfully deprived of something or to whom something has been
refused wrongfully. He also relied upon the case of Mohd. Shujat Ali v. Union
of India reported in (1975) 3 SCC 76, wherein it has been held that the right
to promotion is not the same thing as a mere chance to promotion. He submitted
that the Appellant is basing his expectations on an accidental windfall by
hoping that Respondent No. 3 would not be in service. Mr. Jethmalani submitted
that the Appellant is not a person aggrieved in as much as he has no real right
to claim seniority over Respondent No. 3. He submitted that the Appellant has
not been deprived of anything. He submitted that in any event the Appellant's
complaint that his seniority would be affected, has been protected and,
therefore, the Appellant can no longer have any complaint regarding seniority.
We are
unable to accept the submissions of Mr. Jethmalani. As has been pointed out
hereinabove, against the portion of the impugned judgment which held that the
Appellant had locus and that the Central Administrative Tribunal had
jurisdiction, Respondent No. 3 had filed a Special Leave Petition. That has
been dismissed by this Court on 10th December, 2000. It is therefore not open
to Respondent No. 3 to again raise these contentions. These findings in the
impugned judgment have become final as against Respondent No. 3.
Even
otherwise, we see no substance in these submissions.
Section
3(q) of the Administrative Tribunals Act defines "service matters" as
follows:
"(q)
"service matters", in relation to a person, means all matters
relating to the conditions of his service in connection with the affairs of the
Union or of any State or of any local or other authority within the territory
of India or under the control of the Government of India, or, as the case may
be, of any corporation or society owned or controlled by the Government, as
respects –
(i) remuneration
(including allowances), pension and other retirement benefits;
(ii) tenure
including confirmation, seniority, promotion, reversion, premature retirement
and superannuation;
(iii) leave
of any kind;
(iv) disciplinary
matters; or
(v) any
other matter whatsoever."
Thus,
amongst other things, the question of seniority is a matter which is a service
matter. Section 14 vests in the Tribunal the jurisdiction, power and authority
earlier exercised by Courts, amongst others, in respect of service matters. As
admitted by Mr. Jethmalani if Respondent No. 3 is allowed to remain in service
he would be senior to the Appellant. The Appellant's seniority would be
affected. If in fact Respondent No. 3 has ceased to be in service the question
of seniority between Appellant and Respondent No. 3 would not arise. Thus
Appellant can legitimately point out that Respondent No. 3 has ceased to be in
service. Thus Appellant's claim is not based on mere expectations or accidental
windfall. The Appellant is a person aggrieved and has locus. Even otherwise, as
has been explained in great detail, both by the Tribunal as well as the High
Court, the Tribunal had jurisdiction to entertain the application filed by the
Appellant. Merely because Respondent No. 3 made a statement before the High
Court that he would not claim seniority would not be a ground for holding that
the Tribunal had no jurisdiction. A statement made in a Writ Petition before
the High Court would not deprive the Appellant of locus and/or the Tribunal of
jurisdiction.
Mr. Jethmalani
next submitted that a public servant has a right to withdraw his request for
voluntary retirement at any time until the retirement becomes effective. He
submitted that the relationship of master and servant does not come to an end
until the same is terminated. He submitted that the relationship of master and
servant does not get severed or ruptured merely because the employee conducts
himself in a manner which gives to the employer a right to bring about a
severance. He submitted that unless and until the employer takes some positive
action and severes the relationship of master and servant the same would
continue. He further submitted that an IPC Officer is appointed by the
President of India. He submitted that the appointment is notified in the
official Gazette and thus the removal can only be accomplished in a similar
manner i.e. by a Presidential Order duly notified in the Official Gazette. He
submitted that mere notings in the official files or mere administrative orders
do not have the effect of severing the relationship of master and servant.
Mr. Jethmalani
submitted that even if it is held that acceptance of a voluntary retirement
need not be by a Presidential Order duly notified in the Gazette, even then the
relationship of master and servant would not come to an end unless and until
there is effective communication of the order accepting the request for
voluntary retirement. He submits that a termination would take place
automatically on the happening of a particular situation, for example absence
from office, abundant of service etc. only if there is a specific rule which so
provides. He submitted that in the absence of such a rule termination of
service does not take place automatically. He relied upon sub-rules (2) and
(2A) of Rule 16 of the All India Services (Death-cum-Retirement) Rules, 1958
which read as follows:
"16.
Superannuation gratuity or pension.- (1) A member of the Service shall be
required compulsorily to retire from the service with effect from the afternoon
of the last day of the month in which he attains the age of 58 years:
Provided
that he may be retained in service after the last day of the month in which he
attains the age of 58 years on public grounds which, shall be recorded in
writing-
(a) for
an aggregate period not exceeding six months by the State Government; and
(b) for
any period beyond six months, with the sanction of the Central Government;
Provided
further that a member of the Service shall not be retained in service beyond
the age of 60 years except in very special circumstances.
(2) A
member of the service may, after giving at least three months' previous notice
in writing, to the State Government concerned, retire from service on the date
on which such member completes thirty years of qualifying service or attains
fifty years of age or on any date thereafter to be specified in the notice:
Provided
that no member of the Service under suspension shall retire from service except
with the specific approval of the Central Government.
(2A) A
member of the service may, after giving three months' previous notice in
writing to the State Government concerned retire from service on the date on
which he completes 20 years of qualifying service or any date thereafter to be
specified in the notice:
Provided
that a notice of retirement given by a member of the service shall require
acceptance by the Central Government if the date of retirement on the expiry of
the period of notice would be earlier than the date on which the member of the
service could have retired from service under sub-rule (2):
Provided
further that a member of the Service, who is on deputation to a corporation or
company wholly or substantially owned or controlled by the Government or to a
body controlled or financed by the Government, shall not be eligible to retire
from service under this rule for getting himself permanently absorbed in such
corporation, company or body.
He
submitted that at the relevant time Respondent No. 3 had not completed 30 years
of service or attained 50 years of age and therefore sub-rule (2) would not
have been applicable. He submitted that under sub-rule (2A) the notice for
voluntary retirement would not take effect until it was accepted by the Central
Government. He submitted that acceptance could only take place if there was
effective communication of the acceptance.
Mr. Jethmalani
relied upon the case of Shambhu Murari Sinha v.Project & Development India
reported in (2000) 5 SCC 621. In this case the question was whether it is open
to a person having exercised the option of voluntary retirement to withdraw his
application before it is made effective. Relying upon earlier Judgments of this
Court, it was held that the voluntary retirement, in spite of its acceptance,
can be withdrawn before the effective date. Mr. Jethmalani also relied upon the
case of Bank of India v. O. P. Swarnakar reported in (2002) 9 SCALE 519 wherein
also it is held that a request for voluntary retirement can be withdrawn before
it becomes effective. He submitted that the Government's Order dated 2nd March, 1995, accepting the request for
voluntary retirement, had not been communicated to Respondent No. 3. He
submitted that Respondent No. 3 was therefore entitled to withdraw his request
for voluntary retirement. He submitted that the application of Respondent No. 3
dated 18th April, 1995 (withdrawing his request for voluntary retirement) was prior
to the retirement becoming effective as till that date the Government's order
had not been communicated to him. He submitted that the High Court was right in
holding that the relationship of master and servant had continued. Mr. Jethmalani
relied upon the affidavit filed by the Union of India in this Court on 21st March, 2002, wherein it has been averred that
the order accepting voluntary retirement had not become effective as the same
had not been served on Respondent No. 3 before he withdrew his request for
voluntary retirement. Mr. Jethmalani pointed out that even according to the
Government of India the relationship of master and servant had not been
terminated. He pointed out that by an Order dated 27th February, 1997 leave has
been sanctioned to Respondent No. 3. Mr. Jethmalani also relied upon an
affidavit dated 2nd
April, 2002 filed by
the State of Punjab, wherein it has been stated that
gazette notification of a retirement order is mandatory. Mr. Jethmalani
submitted that it was an admitted position that in this case there was no
gazette notification. At this stage itself it must be pointed out that this
stand taken by the State of Punjab, on
oath, is contrary to the stand taken by them, on oath, in an affidavit filed by
them before the Punjab & Haryana High Court on 13th November, 1998. In that Affidavit it is inter alia stated as
follows:
"No
grounds are available to the petitioner to challenge order passed by the CAT :-
a) The
order passed by the Central Administrative Tribunal is proper valid and depict
the correct interpretation of law. The petitioner himself wanted his voluntary
retirement to be effective with immediate effect vide notice/application dated
5.5.93. Intention of petitioner was clear when he deposited 3 months salary in
lieu of notice. His voluntary retirement was accepted by Government of India
and order issued to this effect were intimated through the answering respondent
and Director General of Police, Punjab at his last notified address. The orders were also published in the
News- papers.
b) The
order of the acceptance of voluntary retirement was twice sent to the last
notified address of the petitioner where he was not found available. It appears
that the petitioner intentionally had given wrong address. The acquittance of
voluntary retirement was duly published in the news-papers. There is no
requirement/practice to get the order of retirement published in the official
Gazette." (emphasis supplied) Mr. Jethmalani submitted that it was for the
Government of India to decide whether or not to condone absence from duty. He
submitted that Respondent No. 3 was a very good officer who had had an
unblemished record. He submitted that there was nothing wrong in the Government
of India condoning minor lapses on the part of such a good officer and
retaining him in service. Mr. Jethmalani submitted that as the Government of
India desired to retain the services of such a good officer and as Respondent
No. 3 now had only 2 more years of service left, this Court should not pass any
adverse order. Mr. Jethmalani also suggested that Respondent No. 3's stay
abroad and work with the foreign firm were part of an assignment given to him.
He
suggested that it is for this reason that the Government of India was bound to regularise
leave and retain Respondent No. 3 in service.
As
against this Mr. Gupta submitted that the conduct of Respondent No. 3 in
leaving India without waiting for the Government
to accept his request for voluntary retirement and thereafter taking an
employment with foreign firm indicates that Respondent No. 3 had abandoned the
service. He submitted that by his own conduct there was severance of
relationship of master and servant. He submitted that in any event withdrawal
of request for voluntary retirement can only be within the notice period. He
submitted that the notice period was only for 3 months. He submitted that the
effective date within which the request for voluntary retirement could be
withdrawn was only 3 months. He submitted that in any event by Order dated 2nd March, 1995, the Government of India had
accepted the request of Respondent No. 3 and permitted him to retire from
service. He submitted that on such acceptance the relationship of master and
servant came to an end. He submitted that thereafter Respondent No. 3 could not
be permitted to withdraw his request for voluntary retirement. He submitted
that the case that Respondent No. 3 had been sent abroad and/or asked to work
for a foreign firm cannot be believed.
We
have considered the submissions of both the parties. As has been set out, in Shambhu
Murari's case and Bank of India's case, an employee can withdraw his
application for voluntary retirement before the effective date. The effective
date would necessarily be the date on which the retirement takes effect. The
request, which Respondent No. 3 had made by his letter dated 5th May, 1993, was to be allowed to retire
voluntarily with immediate effect. He had also deposited Rs. 30,870/- in lieu
of three months' notice. Thus so far as Respondent No. 3 was concerned the
effective date was 5th
May, 1993. Of course
Rule 16(2A) of the All India Services (Death-cum-Retirement) Rules, 1958
provides that a notice of retirement had to be accepted by the Government of
India. In this case, the Government of India accepted the request on 2nd March, 1995 and permitted Respondent No. 3 to
retire with effect from May 1993. The moment Government of India accepted the
notice the retirement became effective. The relationship of master and servant
came to an end. We are unable to accept the submission that the relationship of
master and servant did not terminate till the acceptance was communicated to
Respondent No. 3.
It
must be remembered that Rules 16(2) and 16(2A) enable a member to retire from
service on giving the required notice. Once such a notice is given it merely
has to be accepted by the Government of India. The moment it is accepted the
retirement would become effective. If any other view is taken it would lead to
absurd results.
Such a
view would mean that even though a member had given a notice for voluntary
retirement stopped attending office and/or gone away abroad and/or taken up
some other employment after a number of years of absence the member could claim
to come back into service because the Government, for some unforeseen reasons,
had not communicated its acceptance. Taken to its absurd length such a member
could after superannuation claim that, as the services were not terminated, he
was entitled to pension and gratuity on the basis that he had continued in service.
The requirement of communication of acceptance would only arise in cases where,
even after giving of a notice of voluntary retirement the member continues to
work/perform his duties. In such cases the member would need to know from what
date he can stop attending office. In cases where the member has by his own
conduct abandoned service the severance of the relationship of master and
servant takes place immediately on acceptance of notice. We are unable to
accept the submission that the severance of relationship of master and servant
cannot take effect until there is an Order by the President of India and the
same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set out
hereinabove. All that it requires is acceptance by the Government of India and
not by the President of India. Admittedly the request for voluntary retirement
has been accepted by the Government of India on 2nd March, 1995.
No
provision or rule could be shown which requires such acceptance to be gazetted.
On the contrary, as has been set out hereinabove, in its affidavit before the
Punjab & Haryana High Court, the Government of Punjab had categorically
stated that there was no provision for gazetting such an order.
That
the relationship of master and servant had been severed is clear from the
affidavit filed by Respondent No. 3 in this Court. The relevant portion has
been reproduced hereinabove. Even according to Respondent No. 3 no posting
order had been issued to him.
According
to Respondent No. 3 the Government of India had struck off, his name from the
Gradation list, no salary was paid to him and 8 letters have been issued
declaring that he has retired from service.
We are
unable to accept Mr. Jethmalani's submission that, Respondent No. 3 had been
sent abroad and asked to take up employment with a foreign firm by the
Government. There is no proof of such a case. Neither the Government of India
nor the Governments of Punjab/Haryana state that this was so. This appears to
us to be an argument in desperation.
In
view of the above it is held that the High Court erred in coming to the
conclusion that the relationship of master and servant had not been terminated.
As has been set out hereinabove, the relationship of master and servant had
been terminated before Respondent No. 3 sought to withdraw his request for
voluntary retirement on 18th
April, 1995. Once
relationship of master and servant had been severed and/or terminated, by this
back door method, Respondent No. 3 could not get back to service. The Order of
the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the
Central Administrative Tribunal. In this view of the matter the impugned
Judgment requires to be and is hereby set aside. The Order of the Central
Administrative Tribunal dated 3rd February, 1998 is restored.
Mr.
Gupta had raised various other submissions. In the view that we have taken it
is not necessary to set out or deal with those submissions.
Accordingly
the Appeals are allowed with costs.
In
view of what has happened in the past it needs to be clarified that Respondent
No. 3 has ceased to be in Government service with effect from May 1993 in the
rank/position that he then held. There is now no necessity of issuing an order
terminating his service. All that is required is correction of official record
if they purport to show that Respondent No. 3 has continued in service. So far
as Respondent No. 3 is concerned, this Judgment and Order of Central
Administrative Tribunal are notice to him that his request for voluntary
retirement dated 5th May, 1993 has taken effect from May, 1993. It goes without
saying that with effect from May 1993 Respondent No. 3 would not be entitled to
any pay or any other consequential benefits. It is expected that if any pay
and/or benefits have been given to him the same would be returned/reimbursed by
him so that the concerned Government is not forced to recover the same.
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