S.B.CIVIL WRIT PETITION NO.5548/1994 Dev Kishan vs. Nathdwara Temple Board. Order dt:9/9/08 1/8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Dev Kishan vs. Nathdwara Temple Board, Nathdwara. S.B.CIVIL WRIT PETITION NO.5548/1994 DATE OF ORDER : 9th September, 2008 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.D.K.Parihar, for the petitioner. Mr.Sunil Bhandari for Mr.M.R.Singhvi, for the respondent. BY THE COURT: 1. Heard learned counsels. 2. By this writ petition, petitioner has challenged the order dated 8/10/1994 (Annex.14), whereby, the Chief Executive Officer of the Nathdwara Temple Board relieved him from the services in pursuance of the resolution of the Board dated 15/9/1994 (Annex.R/3) giving voluntary retirement to the petitioner Deo Krishna Gorva, Bhandari, Shrinathji Bhandar, Mathura. The petitioner submitted that though he filed application for seeking voluntary retirement (Annex.5) on 2/7/1994 to the employer – respondent in view of ill health of his S.B.CIVIL WRIT PETITION NO.5548/1994 Dev Kishan vs. Nathdwara Temple Board. Order dt:9/9/08 2/8 mother and, therefore, he could not remain at Mathura since his mother was living in Nathdwara, therefore, in view of force of circumstance he said that he may be given voluntary retirement. The said letter was acknowledged and his request for voluntary retirement scheme was accepted by the Chief Executive Officer vide Annex.6 dated 5/7/1994. However, by letter dated 6/7/1994 (Annex.7) the petitioner withdrew his application for voluntary retirement stating that under the distressed condition of his mother's illness he gave the said application on 2/7/1994 and, therefore, the application for voluntary retirement may be treated as revoked or withdrawn. 3. The petitioner was taken back on duty on 11/7/1994 vide Annex.8 and vide Annex.10 dated 13/8/1994 he was asked again to work at Mathura Bhandar. On 22/8/1994 he was again asked to work at Nathdwara vide Annex.12 and was also granted leave for the period 25/9/1994 to 7/10/1994 vide Annex.13 dt. 28/9/1994. However, by order dated 8/10/1994 (Annex.14) he was relieved from service in pursuance of resolution dated 15/9/1994 of the respondent Board accepting his voluntary retirement. 4. Being aggrieved of the impugned order, petitioner approached S.B.CIVIL WRIT PETITION NO.5548/1994 Dev Kishan vs. Nathdwara Temple Board. Order dt:9/9/08 3/8 this Court by way of present writ petition. 5. Learned counsel for the petitioner submits that in view of the decision of Hon'ble Supreme Court in case of Shambhu Murari Sinha vs. Project and Development India Ltd. & Anr. (AIR 2002 SC 1341) the request for voluntary retirement could be withdrawn by the petitioner before the same was accepted by the competent authority namely the Board in terms of Section 21 of the Nathdwara Temple Act, 1959. 6. Learned counsel submitted that the Chief Executive Officer of the respondent Board had no authority under the said Act to accept the voluntary retirement application on 5/7/1994 vide Annex.6 and, therefore, such acceptance was without any force and nonest in the eye of law and in view of withdrawal of voluntary retirement application and further in view of the fact that petitioner was allowed to join back his duties vide Annex.8 dated 11/7/1994 and was thereafter continued in service, the respondent Board could not approve and accept the voluntary retirement application which already stood revoked and withdrawn on 6/7/1994. He, therefore, submitted that petitioner should be deemed to be in continuous S.B.CIVIL WRIT PETITION NO.5548/1994 Dev Kishan vs. Nathdwara Temple Board. Order dt:9/9/08 4/8 service upto the date of retirement, which would have happened on 10/6/2001 upon attaining the age of 58 years. 7. Learned counsel for the petitioner further submitted that petitioner actually expired on 15/12/2003 and his legal representatives were brought on record. He, therefore, submits that consequential benefits deserve to be paid to them. 8. These submissions are opposed by the counsel for respondent Board on the ground firstly that respondent Board had accepted the voluntary retirement, which should be deemed to have taken effect from the date the application i.e. 2/7/1994 and since the Chief Executive Officer has already accepted the same on 5/7/1994 subject to approval of the respondent Board, therefore, there was no occasion for the petitioner to have withdrawn said application on 6/7/1994. He, therefore, submitted that petitioner was not entitled to any relief in the matter. 9. Relying upon the decision of Supreme Court in case of Bank of India & Ors vs. O.P.Swarnakar & others [ (2003) 2 SCC 721 ], Punjab National Bank vs. Virender Kumar Goel & Ors. [ (2004) 2 S.B.CIVIL WRIT PETITION NO.5548/1994 Dev Kishan vs. Nathdwara Temple Board. Order dt:9/9/08 5/8 SCC 193 ] and Punjab and Sind Bank & Anr. vs. S.Ranveer Singh Bawa & Anr. [ (2004) 4 SCC 484 ] learned counsel submitted that in view of the fact that petitioner accepted the payment of his retiral benefits in the form of payment of provident fund to the extent of Rs.1,14,517/-, as stated in additional submissions filed on behalf of respondent Board, petitioner should be deemed to have acquiesced in the matter and accepted the voluntary retirement and he was estopped from claiming any benefit subsequently to his being relieved on 15/4/1994. 10. I have heard learned counsels and given my thoughtful consideration to the facts and circumstances of the case and judgments cited at the bar. The position of law is well settled as far as proposition that the application for voluntary retirement can be withdrawn by the employee concerned before the same is validly accepted by the competent authority. In the present case, such competent authority is the Nathdwara Temple Board as per Section 21 of the Act of 1959. The Chief Executive Officer of the respondent Board does not have such specific power under the said Act to accept the application of voluntary retirement. No such specific delegation of power by the Board to the Chief Executive Officer has been shown S.B.CIVIL WRIT PETITION NO.5548/1994 Dev Kishan vs. Nathdwara Temple Board. Order dt:9/9/08 6/8 to this Court. The fact remains that under the circumstance in which petitioner gave his voluntary retirement application on 2/7/1994 namely illness of his mother and his desire to remain at Nathdwara and that very circumstance compelled him to revoke his application on 6/7/1994. There is no document on record to show that before 6/7/1994 the Temple Board accepted the voluntary retirement application of the petitioner. Thus, the petitioner has withdrawn his application for voluntary retirement before the same was accepted by the competent authority i.e. Temple Board. 11. The judgments relied upon by the learned counsel for the respondent to show that petitioner was estopped having accepted the payment of his retiral benefits in the form of provident fund is also of no avail to the respondent. The provident fund payment is partly the money of petitioner himself and mere acceptance of such payment by the petitioner cannot disentitle him from claiming the benefits which enured to him on account of withdrawal of voluntary retirement application. Though it is stated in the said additional submissions that payment of gratuity was also made to petitioner, however, no details thereof have been submitted in the said additional submissions. The estoppal thus raised against petitioner cannot be validly raised. In the S.B.CIVIL WRIT PETITION NO.5548/1994 Dev Kishan vs. Nathdwara Temple Board. Order dt:9/9/08 7/8 cases cited by learned counsel for the respondent, respective employees had accepted the voluntary retirement benefits under the voluntary retirement scheme floated by the Banks and under those particular schemes only the employees who accepted the benefits flowing from the said scheme were held estopped from contending back that they had not sought voluntary retirement. 12. The facts of the present case are distinguishable from the facts of those cases. Since this Court finds that application for withdrawal was given by the petitioner before the application was accepted by the competent authority namely Temple Board, the respondent Board could not thrust upon the petitioner his voluntary retirement. The approval of the Board dated 15/9/1994 was, therefore, on the basis of application which was nonest on 15/9/1994 for which the resolution Annex.R/2 dated 15/9/1994 also cannot be sustained. 13. Consequently, this writ petition is allowed. The impugned orders Annex.14 dated 8/10/1994 as well as Annex.R/2 dated 15/9/1994 are quashed and set aside. The petitioner will be entitled to consequential benefits in the form of pay and allowances w.e.f. 15/9/1994 till the date he would have attained the age of S.B.CIVIL WRIT PETITION NO.5548/1994 Dev Kishan vs. Nathdwara Temple Board. Order dt:9/9/08 8/8 superannuation i.e. 10/6/2001. The payment of salary and allowances treating him in service shall be paid within a period of three months from today. If the same are not paid within three months to his legal representatives, the said payment will bear interest @ 12% p.a. (DR.VINEET KOTHARI), J. item no.10 baweja/-