IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 518 of 2003 (S/B) Dr. T.C. Sharma ….…... Petitioner Versus Gurukula Kangri Vishwavidyalaya ………. Respondent Mr. Sarvesh Bisaria, Advocate for the petitioner. Mr. Arvind Vashisth, Advocate for the respondent. Date of Judgment: 25.11.2010 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Nirmal Yadav, J. BARIN GHOSH, C.J. (ORAL) Petitioner was a permanent employee of the respondent – University. He was a lecturer. The respondent – University is an authority within the meaning of Article 12 of the Constitution of India. Petitioner, in course of his employment, applied to the Government of India for obtaining a foreign teaching assignment. In order to make the said application effective, petitioner was required to obtain no-objection of the respondent – University. Petitioner obtained the no-objection of the respondent – University and then applied. Upon being selected, the Government of Nigeria offered a teaching appointment to the petitioner. Petitioner submitted the said appointment letter to the respondent – University along with a letter requesting the respondent – University to relieve him in order to enable him to join his foreign assignment. The respondent – University did not respond to the said letter of the petitioner. Petitioner, accordingly, applied for leave and was granted leave for 40 days from 1st July 1982. While obtaining the leave, petitioner had indicated that the purpose of obtaining the same was to pay a foreign visit. In the application for leave, he had indicated his address of Delhi, which, it is not in dispute, is the permanent residence of the petitioner. In terms of such grant, the leave of the petitioner expired on 10th August 1982. Petitioner was required to join back his duties at the respondent – University on 11th August 1982. Petitioner did not do so. He did not even apply for extension of his leave. Sometimes in September or October, 2 1982, the respondent – University, by a letter addressed to the petitioner at his Delhi address, directed the petitioner to join back his duties on the date mentioned in the said letter with a threat that in the event petitioner not joining the duty on receipt of the said letter on or before the said date mentioned therein, his services will be terminated. Since, by that time, petitioner had already gone to Nigeria, he did not receive the said letter and, accordingly, did not give any reply thereto. In as much as the petitioner had no knowledge of the contents of the said letter, he also did not join back his duties at the respondent – University at or before expiry of the date mentioned in the said letter. The respondent – University, accordingly, on 9th January 1983 dismissed the petitioner from service. In 1989, petitioner came back to India and, according to him, went to the respondent – University to resume his duties, when he was not permitted to do so. It appears that the petitioner, subsequent thereto, worked at Delhi. After the petitioner reached the age of superannuation, he went to the respondent – University and asked for payment of his dues. He claimed gratuity, pension, provident fund, arrears, including those on account of revision of salaries effective from 1983. The respondent – University, as it appears, agreed to pay the admitted dues of the petitioner, like the salaries not paid, arrears on account of revision, if any, applicable to the petitioner and all other dues, but refused to pay the gratuity and pension on the ground that the petitioner having been dismissed, is not entitled to either gratuity or pension. Petitioner held out to the respondent – University that the dismissal of the petitioner be treated as resignation by him, so as to enable the respondent – University to pay to the petitioner pro rata gratuity and pension. The respondent – University did not agree and hence the present writ petition. 2. The facts, as above, are not in dispute. It is also not in dispute that unless an employee has superannuated or has demitted his office in accordance with law, i.e., either by resignation or by obtaining voluntary retirement, pro rata pension and gratuity is not payable to such an employee. In the instant case, petitioner has been dismissed from service on 9th January 1983. In view of the said dismissal, in accordance with the 3 rules, petitioner is not entitled to pro rata pension and gratuity. The one and the only question in the instant writ petition is whether the dismissal dated 9th January 1983 can be said to be a dismissal at all. 3. It is not the contention of the respondent – University that in accordance with the rules governing the service conditions of the petitioner, non-resumption of duty after expiry of the leave, authorized the respondent – University to put to an end the services of the petitioner by issuing an order of dismissal. On the other hand, the rules, governing the service conditions of the petitioner, made it absolutely clear that the petitioner could only be dismissed from service by concluding a disciplinary proceeding. The rules further made it clear that such disciplinary proceeding can only be initiated by issuing a charge sheet, denoting therein the misconduct on the part of the petitioner. Rules further made it clear that one of the contemplated misconduct is unauthorized absence from duty. In the circumstances, for the unauthorized absence of the petitioner, after expiry of the leave, petitioner in accordance with rules governing his service conditions, could be dismissed from service on the ground that the petitioner has committed a misconduct of unauthorized absence, but before such dismissal could be effected, the selfsame rules required that the petitioner should have been told that he committed such misconduct. That having not been done, the one and the only conclusion would be that the order of dismissal dated 9th January 1983 is in violation of the rules. Those rules having been made by an authority within the meaning of Article 12 of the Constitution of India for its own employees, the same were equally binding on the respondent – University as a force of Law, as the things prescribed therein could only be done in terms thereof and not otherwise. It is settled, anything done contrary to law is void ab initio. It is also settled that something which is void ab initio, does not partake, nor does spring into life at any point of time. It is also settled that it is not necessary to take legal recourse to declare a nullity as a nullity and that a nullity can be projected as a defence to any contention at any point of time. In the instant case, on the basis of the said nullity, it was being held out by the 4 respondent – University that the petitioner is not entitled to pension or gratuity. As against that contention, it was open to the petitioner to contend, at all times, that the same being a nullity cannot be looked at, at all. 4. That being the situation and there being no dispute that the petitioner, having crossed the age of superannuation, cannot seek to resume his duties in the respondent – University, we declare that while the said order of dismissal dated 9th January 1983 is a nullity, the period between 11th August 1982 until the date the petitioner reached the age of superannuation shall be treated as dies non, in as much as petitioner during the said period did not show any genuine inclination to serve the respondent – University. On the basis of the declaration as above, the respondent – University is directed to pay to the petitioner all his terminal dues, including gratuity and pension on pro rata basis, in as much as in view of the declaration as above, it shall be deemed that the petitioner superannuated upon reaching the age of superannuation. We direct the respondent – University to write to the petitioner, within a period of one month from today, a letter at the address of the petitioner as given in the cause title of the writ petition, indicating what amounts the petitioner is entitled to be paid in view of the declaration as above, including all other dues of the petitioner due and payable to him. In the letter, the respondent – University shall inform the petitioner what steps, if any, the petitioner would be required to take to receive those payments. No sooner the petitioner takes those steps, but not later than three months therefrom, all such dues and claims of the petitioner shall be paid. 5. This disposes of the writ petition. (Nirmal Yadav, J.) (Barin Ghosh, C.J.) 25.11.2010 25.11.2010 Amit