Director General Esic
& ANR Vs. Puroshottam Malani [2008] INSC 1201 (22 July 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4611 OF 2008 (Arising
out of SLP(C) No. 1551 of 2007) Director General ESIC & Anr. ....
Appellants Versus Puroshottam Malani .... Respondent
ORDER
1.
Leave
granted.
2.
This
appeal is directed against the judgment and order dated 29.08.2006 of the High
Court of Madhya Pradesh, Bench at Indore in Writ Petition(s) No. 1028 of 2004
whereby the Division Bench of the High Court has dismissed the writ petition
filed by the appellant herein and affirmed the order dated 13.01.2004 passed by
the Central Administrative Tribunal, Jabalpur, Circuit Bench, Indore in O.A.
No. 1002/2000.
3.
Brief
facts which are necessary for the disposal of the present appeal are that the
respondent herein was working in the appellant organization as Manager. Since
he wanted to go on voluntary retirement, he tendered a three months' notice
dated 31.12.1999 for voluntary retirement to retire him with effect from
31.3.2000. The said notice of the respondent for relieving him on voluntary
retirement was accepted by the appellant corporation on 10.2.2000. However, on
22.3.2000, i.e., 10 days prior to the date of relieving him, the respondent
sought to withdraw his notice of voluntary retirement whereby the respondent
had sought voluntary retirement with effect from 31.3.2000. The request for
withdrawal of the notice for voluntary retirement was rejected by the appellant
corporation on 17.4.2000. Aggrieved against the said order of rejection dated
17.4.2000, the respondent 2 herein approached the CAT, Jabalpur, Circuit
Bench, Indore. The CAT vide its order dated 13.01.2004 quashed and set aside
the order dated 17.4.2000 of the appellant herein and directed the appellant to
treat the applicant-respondent to have continuously worked till the date of
actual superannuation and granted him all arrears of salary and other
emoluments including increments and to get his pensionary benefits refixed
accordingly.
Aggrieved against the
said order of the CAT, the appellant filed a writ petition before the High
Court of Madhya Pradesh which was dismissed by the impugned judgment and order
and the order of the Tribunal was affirmed. Hence the present appeal by special
leave.
4.
The
Division Bench of the High Court with reference to sub-Rule (2) of Rule 48 of
the Central Civil Services (Pension Rules, 1972) held that the respondent has
revoked his resignation before the last date i.e. 31.3.2000. Therefore, he
should have been permitted to withdraw the same and the acceptance of retiral
benefits including pension, gratuity, leave encashment etc. ought to have been
ignored. Placing reliance on various decisions of That is how the appellant is
before us.
5.
We
have heard learned counsel for the parties and perused the record. It is true
that the respondent herein has tendered the notice dated 31.12.1999 for seeking
voluntary retirement with effect from 31.3.2000 and his request was accepted by
the appellant on 10.2.2000. But the respondent revoked his request for
voluntary retirement by letter dated 22.3.2000, i.e., prior to 31.3.2000. In
this appeal, the question that arises for our consideration is whether after
respondent's resignation has been accepted by the appellant and the appellant
has been given marching orders and he has already withdrawn all the 3
pensionary benefits including leave encashment, gratuity, commutation on
14.9.2000, is it still open for him to agitate the matter. The respondent herein
filed an Original Application before the Tribunal on 12.11.2000. Can such
conduct of the respondent be permitted.
6.
Rule
48(2) of the Central Civil Services (Pension)Rules, 1972 reads as under :-
"(2) A Government servant, who has elected to retire under this rule and
has given the necessary intimation to that effect to the Appointing Authority,
shall be precluded from withdrawing his election subsequently except with the
specific approval of such authority :
Provided that the
request for withdrawal shall be within the intended date of his
retirement."
7.
In
the present case also, the respondent has expressed his intention for
withdrawing the notice of voluntary retirement prior to 31.3.2000 which was the
last date given by him. Normally, there is no prohibition for the incumbent to
revoke the notice of voluntary retirement before the penultimate day but that
can only be permitted to withdraw the same with the specific approval of the
appointing authority and secondly it has to be done before the penultimate day.
In this case, the authorities have refused to withdraw the notice of voluntary
retirement and the authorities observed that the respondent has not given any
reason for withdrawal of the notice seeking voluntary retirement. In the case
of Balram Gupta (supra) the appellant was working as an Accountant in the Photo
Division of the Ministry of Information and Broadcasting and by letter dated
24.12.1980 he sought voluntary retirement from service with effect from
31.3.1981. But later on by his letter dated 20.1.1981 he sought to revoke the
same on the ground that on account of persistent and personal requests from the
staff members, he had to change his mind". This reason was found to be
justified by this Court and this Court accordingly allowed the appeal of the
appellant.
8.
This
Court held that the appellant has given some plausible explanation for revoking
his notice of voluntary retirement and there is no reason why such explanation
4 does not go well with the authorities and the authorities should not resort
to short cut methods to get rid of the employees. Accordingly, this Court
allowed the appeal and granted all consequential benefits. Therefore, the case
of Balram Gupta (supra) stand distinguished from the facts of the present case.
in almost identical situation, the respondent therein had sought voluntary
retirement from service on the ground that "He was severely hit by ill
health and misfortune. As a result, he was undergoing both physical and mental
agony, since long time." However, in the case of Dr. R.R. Patil (supra)
there was no question agitated that whether the reason for withdrawal was given
in the letter for withdrawal of notice for voluntary retirement.
Therefore, this
aspect was not gone into by this Court. Hence, the said case is also distinguishable
from the facts of the case at hand.
9.
However,
in the present case, we find that the incumbent who has given the notice of
voluntary retirement on 31.12.1999 and wanted to revoke the same on 22.3.2000,
i.e., before the last date 31.3.2000, has not given any explanation whatsoever
for revoking the notice of voluntary retirement and has got all the benefits
which he was entitled to get on the basis of voluntary retirement. After having
received all the benefits of voluntary retirement, the respondent approached
the Tribunal for setting aside the order dated 17.4.2000 accepting the notice
of voluntary retirement. This conduct of the respondent also dis-entitles him
any benefit.
10.
The
government service is not contractual. It is a service which confers status and
a person who opts for voluntary retirement and later on wants to revoke the
same before the expiry of the period of notice has to satisfy the authorities
why he is seeking to revoke the notice of voluntary retirement. Rule 48(2) of
the Central Civil Services (Pension) 5 Rules, 1972 clearly states that the
incumbent can seek withdrawal of the notice of voluntary retirement but with
the specific approval of the authorities. Therefore, as per sub-Rule (2) of
Rule 48 of the CCS (Pension) Rules, 1972 specific approval of the authority is
required for withdrawal of the notice of voluntary retirement. If the incumbent
does not provide any reason or material for revoking his notice of voluntary
retirement then it is always open for the authority to decline the request for
withdrawal of notice of voluntary retirement. If such discipline is not read
into the Rule then perhaps every employee can send a notice for voluntary
retirement and revokes the same at his sweet will. This cannot be permitted.
The Rule mandates that there should be a specific approval of the appointing
authority.
Clearly, the Rule
provides that the appointing authority can certainly approve or disapprove a
request for withdrawal of notice of voluntary retirement.
11.
Therefore,
in the facts of the present case where the respondent has not provided for
reason for withdrawal of his notice for voluntary retirement and secondly that
the respondent had already received all the pensionary benefits including leave
encashment, gratuity, commutation etc. and woke up to file an application
before the Tribunal as late as November, 2000, we are of the opinion that this
appeal deserves to be allowed. Accordingly, we allow this appeal and set aside
the impugned judgment and order dated 29.8.2006 of the Division Bench of the
High Court and that of the Central Administrative Tribunal, Circuit Bench,
Indore dated 13.1.2004.
The appeal is
allowed. No order as to costs.
...........................J.
(A.K.MATHUR)
...........................J.
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