1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR S.B.Civil Writ Petition No.1312/2001 Suraj Narayan Vs. State of Rajasthan & Anr. Date of Order :- 20.08.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.S.P. Sharma, for the petitioner. Mr.Shashi Shekhawet for Mr.R.P. Singh, AAG for the State. REPORTABLE Per Court Aggrieved by the order dated 29.01.2001 whereby the petitioner's application for withdrawal of his application for voluntary retirement has been rejected, aggrieved by the order dated 31.01.2001 whereby the petitioner has been retired from his service, and aggrieved by the charge-sheet dated 31.01.2001, the petitioner has approached this Court. In short the petitioner's case is that he was appointed as IV-Class employee on 22.12.1964. Subsequently, he was promoted to the post of Jamadar on 30.06.1987. Having put in more than thirty-five years of service, on 10.10.2000, the petitioner submitted an application seeking voluntary retirement from his services w.e.f. 01.02.2001. However, much before February 01, 2001 on 05.12.2000 after changing his mind, the petitioner submitted an application withdrawing his application seeking voluntary retirement ('the withdrawal 2 application', for short). However, vide order dated 29.01.2001, the petitioner's withdrawal application was rejected ostensibly on the ground that “it was found to be unacceptable”. Subsequently, vide order dated 31.01.2001, the petitioner was retired from his service. Since the petitioner was hopeful that his withdrawal application would be accepted, the petitioner protested the order dated 31.01.2001. In order to teach a lesson to the petitioner, a charge-sheet was issued to him on 31.01.2001 itself. Since the petitioner is aggrieved by the said orders mentioned above, he has filed the present writ petition before this Court. Mr. S.P. Sharma, the learned counsel for the petitioner, has raised the following contentions before this Court : firstly, that prior to the date of voluntary retirement specified in the application, the employee has a right to withdraw the application seeking voluntary retirement. Secondly, the employer does not have the power to reject the same. For, the rejection of such an application would tantamount to termination of service or forceful removal from service. Thirdly, the order dated 29.01.2001 is a non-speaking order as the order merely states that “the withdrawal application was found to be unacceptable”. But the said order does not give any reason as to why the said withdrawal application was found “to be unacceptable”. Thus, the concerning authority does not reveal his mind. Therefore, the 3 said order suffers from the virus of being a non-speaking order. Fourthly, before the withdrawal application could be rejected, an opportunity of hearing should have been given to the petitioner. However, in the present case no such opportunity was given. In order to buttress his contentions, he has relied upon the cases of Balram Gupta Vs. Union of India & Anr.[1987 Supp SCC 228], Ram Kali Devi (Smt) Vs. Manager, Punjab National Bank, Shamshabad & Ors. [(1998) 9 SCC 558], Shambhu Murari Sinha Vs. Project & Development India Ltd. & Anr. [(2002) 3 SCC 437], Bank of India & Ors. Vs. O.P. Swarnakar & Ors. [(2003) 2 SCC 721] and Board of Secondary Education, Ajmer & Ors. Vs. Smt. Sharda Pareek [2006 WLC (UC) 1]. On the other hand, Mr. Shashi Shekhawet appearing on behalf of Mr. R.P. Singh, AAG for the State, has vehemently contended that Rule 50 (4) of the Rajasthan Pension Rules, 1996 ('the Rules', for short) clearly states that an employee shall be precluded from withdrawing his notice except with the specific approval of the appointing authority. Therefore, the employee cannot claim that he has a right to withdraw his notice. He has merely a right of consideration. Until and unless his notice is accepted by the employer, the employee cannot claim that he has a right that his notice should be accepted. Secondly, according to the Government of Rajasthan's Decision, the employee is duty bound to show 4 material change in the circumstances in consideration of which the notice was originally given. In the present case, the petitioner has not revealed the existence of any material change. Therefore, the appropriate authority was justified in rejecting his withdrawal application. Thus, he has supported the impugned order. Mr. S.P. Sharma has frankly conceded that although a charge-sheet was issued on 31.01.2001, subsequently a warning was given to the petitioner. Therefore, he no longer wants to challenge the issuance of the charge-sheet. Heard the learned counsel for the parties and perused the impugned orders and considered the case law cited at the Bar. This case has raised many interesting legal issues : firstly, whether an employee has an absolute right to withdraw his notice for voluntary retirement or not ? Secondly, whether the right is limited only to a right of consideration and does not extend to a right of acceptance ? Thirdly, whether the employer is duty bound to give an opportunity of hearing prior to rejecting the withdrawal application ? Fourthly, whether the employee is duty bound to reveal material changes in the circumstances or not ? Fifthly, whether the employer is duty bound to state reasons for rejecting the withdrawal application or not ? 5 Rule 50 of the Pension Rules is as under :- REGULATION OF AMOUNTS OF PENSIONS A-(i) PREMATURE RETIREMENT 50. Retirement on completion of 15 years' qualifying Service :- (1) At any time after a Government servant has completed fifteen years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. (2) The notice of voluntary retirement given under sub- rule (1) shall require acceptance by the appointing authority : Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall automatically become effective from the date of expiry of the said period. (3) (a) A Government servant referred to in sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor; (b) On receipt of a request under clause (a), the appointing authority subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months. (4) A Government servant, who has elected to retire 6 under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority : Provided that the request for withdrawal shall be made before the intended date of his retirement. (5) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as defined under rule 45 of Rajasthan Civil Services (Pension) Rules, 1996, which the Government servant was receiving immediately before the date of retirement, and the increase not exceeding five years in his qualifying service under rule 51 shall not entitle him to any national fixation of pay for purposes of calculating pension and gratuity. (6) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. The relevant Government of Rajasthan's Decision is as under :- GOVERNMENT OF RAJASTHAN'S DECISION Withdrawal of notice of retirement not ordinarily permissible :- A question has been raised whether a Government servant who has given to the appropriate authority, notice of retirement has any right subsequently (but 7 during the currency of the notice) to withdraw the same and return to duty. The question has been considered carefully and the conclusion reached is that the Government servant has no such rights. There would, however, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case, to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. It is a settled position of law that the relationship between an employer and an employee continues to exist till the said relationship is severed either by removal or by termination from the service, or by death of an employee, or by superannuation of the employee. Therefore, during the tenure of his service, an employee has a right under Rule 50 of the Rules to seek voluntary retirement from his service. The issue before this Court is whether he has a right to withdraw his notice for voluntary retirement prior to the date mentioned by him in his application for voluntary retirement or not ? This issue is no longer res integra as it was answered by the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Gopal Chandra Misra & Ors. [(1978) 2 SCC 301]. Their lordships of the Hon'ble Supreme Court were of the opinion that “in the absence of anything to the contrary in the provisions governing 8 the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date, can be Withdrawn by him at any time before it becomes effective, i.e. before it effects termination of the tenure of the office/post or the employment.” Thus, an employee does have a right to submit an application withdrawing his notice for voluntary retirement provided he does so prior to the date of retirement as mentioned by him in his application seeking voluntary retirement. A bare perusal of Rule 50 (4) of the Rules and the proviso thereto clearly reveals that an employee does have the right to seek withdrawal of his application for voluntary retirement, however, the right is subject to the approval of the Government. Therefore, the petitioner is unjustified in claiming that he has an absolute right of acceptance of his withdrawal application. The right, in fact, is merely a right of consideration that an employee enjoys. The right of consideration inherently contains the right of an “objective” assessment of the situation by the employer. The right of consideration also contains the right of an hearing before the employer can decide the said application. A bare perusal of the Government's decision, mentioned above, also reflects the need for giving an opportunity of hearing to the 9 employee. For, the decision contains the following sentence, “ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given.” (Emphasis added). In case the employee does not reveal the material change in the circumstances in his withdrawal application, the employer should give him an opportunity of hearing so as to discover if any material change in the circumstances has occurred or not. A combined reading of Rule 50(4) of the Rules with the Government's decision further reveals that the rejection of the withdrawal is not the rule, but is an exception. Since the acceptance or rejection of the withdrawal application would, indeed, adversely affect the civil rights of an employee, since the order rejecting the withdrawal application is subject to a challenge before Court of law, in compliance of the principles of natural justice, it is imperative that the said order must reflect the mind of the competent authority. Therefore, the competent authority is required to give cogent reasons for rejecting the withdrawal application. In the case of Balram Gupta (supra), the Hon'ble Supreme Court had observed that “the approval of the authority under Rule 48-A(4) is, however, not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally. What prompted the Government to 10 withhold the withdrawal is important and not what prompted the government servant to seeking withdrawal.” Thus, it is essential that the Government must reveal the reasons which prompted it to withhold the withdrawal. A bare perusal of the order dated 29.01.2001 clearly reveals that the only reason given by the Government for rejecting the withdrawal application is that “the said application was found to be unacceptable.” The Government nowhere states the reasons as to why “the said application was found to be unacceptable.” Thus, the Government states its conclusion without revealing the reasons which lay behind the conclusion. Hence, the order dated 29.01.2001 is a non- speaking order. Thus, it is unsustainable. Of course Mr. Shashi Shekhawat has contended that the withdrawal application was rejected on the ground that the petitioner had not revealed the reasons for changing his mind. However, the said contention is not reflected in the order dated 29.01.2001. Therefore, the defence taken by the respondents is merely an afterthought. Hence, the said defence is unacceptable. Moreover, in case an opportunity of hearing were given to the petitioner, the petitioner would have had a chance to explain the reasons as to why he has changed his mind. However, as no such opportunity was given to the petitioner, the petitioner could not put forth his reasons for changing his 11 mind. Since the respondents are nothing but a facet of the State, it is expected of them to be sensitive to the need of their employees. The State, being a welfare one, is not expected to act as a despot or as a tyrannt. Under a constitutional democracy, the State is supposed to be act with a sense of benevolence and generosity. After all, the first and foremost duty of the State is to protect and promote the interest of its people. Since the State acts as an ideal employer, the respondents were duty bound to give ample opportunity of hearing to the petitioner before rejecting his withdrawal application in a highly mechanical manner. Since the order dated 31.01.2001 is based on the order dated 29.01.2001 and since latter order is unsustainable, the former order is also untenable. The short question now before this Court is the benefit to which the petitioner is entitled too. A similar question had arisen before the Apex Court in the case of J.N. Srivastava Vs. Union of India [(1998) 9 SCC 559]. The Hon'ble Supreme Court was of the opinion that “the employee should be treated to be in service till the date of his superannuation. The employer is duty bound to make good to the employee all monetary benefits by treating him to have continuously worked till the date of his actual superannuation. Therefore, it would entitle the employee to get all arrears of salary and other 12 emoluments including increments and to get his pensionary benefits refixed accordingly. However, it would be subject to adjustment of any pension amount and other retirel benefits already paid to the employee in the meantime up to the date of his actual superannuation.” Since the petitioner was willing to work till the date of his actual superannuation, the doctrine of “no work no pay” would be inapplicable in the present case. Applying the same principle as annunciated by the Apex Court, this Court directs the respondents to give the benefits of all monetary benefits to the petitioner treating him to continue in service till 31.03.2002, i.e. the date of his actual superannuation. The petitioner shall also be entitled to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. However, the same shall be subject to any adjustment of payment and other retiral benefits which may have been granted to him during this interim period. For the reasons stated above, the order dated 29.01.2001 and the order dated 31.01.2001 are, hereby, quashed and set aside. The respondents are directed to comply with the judgment within a period of two months from the date of receipt of its certified copy. (R.S.CHAUHAN)J. Manoj Solanki