CWP No.2249 of 1989(O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.2249 of 1989(O&M) Date of Decision:16.12.2011 Sat Pal Arora S/o L. Guran Ditta Mal, Assistant Engineer, Haryana State Electricity Board, resident of House No.137, Grewal Basti, Begu Road, Sirsa, Haryana. ... Petitioner Versus The Haryana State Electricity Board, Sector-6, Panchkula through its Secretary. ... Respondent CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:Mr. Rajbir Shehrawat, Advocate, for the petitioner Mr. Mohnish Sharma, Advocate for Mr. Narender Hooda, Advocate, for the respondent. ***** 1.Whether reporters of local papers may be allowed to see the judgment? NO 2.To be referred to the reporters or not? NO 3.Whether the judgment should be reported in the digest? NO K. KANNAN, J. (Oral) 1. The petitioner challenges the manner of acceptance of voluntary retirement as to be effective from an anterior date and a recovery sought against the terminal dues on the basis of an audit objection, without joining the petitioner in any form of inquiry before such recovery was done. 2. The petitioner had sought for a voluntary retirement through a communication on 09.07.1980 on the ground that on his completion of 50 years, he should be relieved from duty. The voluntary retirement had not been accepted and the petitioner had, therefore, written a further communication on 01.07.1981 CWP No.2249 of 1989(O&M) [2] stating that if his voluntary retirement was not accepted then, he could be given his usual post. The Electricity Board responded through a communication on 07.05.1982 and stated that it would be effective from 19.09.1980 from when he had not reported duty. 3. Learned counsel appearing for the petitioner would argue that voluntary retirement could be accepted only to be effective from the date of acceptance and it could not have been from an anterior date. While unauthorized absence of the petitioner could have been a ground for independent action, there is no way that the Electricity Board could have directed the acceptance of voluntary retirement to be effective from the date of absence. I would find that an acceptance of voluntary retirement could be in the manner sought for by him or could be operative from future and if an acceptance was made with a different formulation to be effective from an anterior date then, it should only be seen as a counter offer and not an unconditional acceptance to take effect from the date different from how the petitioner had sought for voluntary retirement. However, the fact remains that he had been treated as retired on that day when a letter accepting the voluntary retirement was made. I would hold that only an additional condition imposed that could be effective from the anterior date, cannot be given effect. It will be no argument in a situation like this that the respondent was taking a lenient view by allowing the petitioner the benefit of no action for his willful absence. If there was a show of of benevolence by the respondent, it has to be taken its logical end and there cannot be a half way benevolence of allowing for voluntary retirement but also allowing the Management to take action as though the petitioner was still in service, for his unauthorized absence. 4. The second limb of the challenge contained in the writ CWP No.2249 of 1989(O&M) [3] petition is the recovery sought to be made for some alleged loss caused by him during his service. The justification for the recovery of over `57,300/- was a finding in the audit report. This could have been a basis for taking appropriate action during the time when the petitioner was in service but a mere audit objection does not mean that he had been responsible for the loss. Any action that has the financial implication of recovery ought to be proceeded with such investigation as the rules provide with sufficient opportunity given to the employee to join issues of the alleged loss. The Supreme Court has held in “Bhagirathi Jena v. Board of Directors, O.S.F.C. and others, 1999(3), SCC 666” that if there was an inquiry pending and retirement had been allowed, the inquiry would lapse, in the absence of any specific provision for its continuance even after retirement. If in this case, the petitioner had been allowed to be retired then, the question of recovery itself could have been possible only if the rules had allowed for an inquiry to be continued beyond the period of retirement and when there had been a finding on such inquiry that there had been such loss, the deduction sought to be made from the retiral dues was impermissible and the second ground of attack to the impugned proceedings sought also succeed. 5. The impugned proceedings are quashed. The writ petition is allowed. DECEMBER 16, 2011 ( K. KANNAN ) Rajan JUDGE