* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7717/2007 JAGMAL SINGH YADAV ..... Petitioner Through Mr. Ravinder Yadav, Advocate. versus COMMISSIONER, MCD & ORS ..... Respondents Through Mr. Sanjeev Sabharwal, Advocate. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 12.05.2008 1. The petitioner, Mr. Jagmal Singh Yadav was appointed to the post of Lower Division Clerk in MCD on 28th August, 1969. 2. The case of the petitioner is that he had repeatedly submitted applications for grant of 60 days earned leave in October, 2005, February 2006, and April, 2006, but these applications were not accepted by the respondent-MCD. 3. On 8th May, 2006 the petitioner made an application seeking voluntary retirement. Copy of the said letter has been placed on record. It refers to the fact that the petitioner had earlier applied for earned leave for 60 days but had not received any information. Accordingly, the petitioner submitted that he should be given voluntary retirement and the said letter may be treated as giving three months notice. The petitioner has also mentioned that he was ready and willing to deposit one month’s salary or whatever amount was due. The subject matter of the letter stipulates “Application for voluntary retirement (24 hours)”. 4. By letter dated 10th July, 2006, application for voluntary retirement submitted by the petitioner was accepted but the said letter was to take effect from 7th August, 2006, i.e. the date when the voluntary retirement notice period expires under Fundamental Rule 56 K under the CCS (Pension) Rules. 5. Learned counsel for the petitioner submits that before the effective date i.e. 7th August, 2006, the petitioner withdrew his application for voluntary retirement by letter dated 2nd August, 2006. The said letter reads as under :- “Undersigned is working as Head Clerk in the Building Department of Central Zone, Municipal Corporation of Delhi. I submitted notice of my voluntary retirement on 08/05/2006 because I was refused sanctioned of leave on the grounds that until any substitute does not join, leave cannot be granted. However, my voluntary retirement was accepted which is effective from 07/08/2006. At that time I was under acute depression and ill health. In this connection, it is submitted that one Shri Thapa from Hindu Rao Hospital was transferred to the Building Department. But he has not complied with the transfer orders of the Central Establishment Department. Now one UDC Shri Rakesh Kumar has joined the Building Department w.e.f. 02/08/2006. Even if I may be granted leave now, I am ready to withdraw my voluntary retirement, which has already been accepted. Submitted for appropriate decision at the earliest.” 6. The said letter cannot be termed as an letter unconditional withdrawal of the his application for voluntary retirement. It is a conditional letter which states that if the petitioner was granted leave then he was ready to withdraw his application for voluntary retirement which had already been accepted. The petitioner, therefore, did not in clear and unequivocal terms withdraw his application for voluntary retirement before the date it was to be effective i.e. 7th August, 2006. 7. Learned counsel for the petitioner has relied upon the judgment in the case of Srivastava J.N. versus Union of India and another reported in (1998) 9 SCC 559 in support of his submission that an employee has locus poenitentiae to withdraw his proposal for voluntary retirement before the effective date. The said decision was considered by the Supreme Court along with other cases in the case of Bank of India versus O.P. Swarankar reported in (2003) 2 SCC 721. The principles of law on contract were also examined in the said case. After dealing with the entire case law, the Supreme Court in the said case observed that principles of estoppel applies in cases where an employee concerned has withdrawn part of the benefit payable on voluntary retirement. In such cases withdrawal of request of voluntary retirement was inconsequential and of no effect. The employees cannot be permitted to approbate and reprobate and resile from their conduct. Estoppel by acceptance of benefits was held to be applicable and it was held that in such cases no relief could be granted, as the employees concerned by their conduct had accepted voluntary retirement. Once an employee accepts benefit payable on voluntary retirement, he cannot be permitted and allowed to claim that he had withdrawn his application for voluntary retirement. It was also held that estoppels is based upon the acceptance and rejection by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions. As a general principle, one who knowingly accepts the benefits of a contract or conveyance, is stopped to deny the validity or binding effect on him of such contract or conveyance. 8. In the present case, it is an admitted position that the petitioner was paid terminal benefits amounting to Rs.13,88,919/- after 7th August, 2006 and is also being paid monthly pension of Rs.5069/- + D.A. The said payments have been accepted by the petitioner and withdrawn from his bank account. Principle of Estoppel by conduct is accordingly applicable in the present case and the contention of the petitioner that the offer of voluntary retirement stood withdrawn on 2nd August, 2006, cannot be accepted. Writ Petition has no merit and is accordingly dismissed. No costs. SANJIV KHANNA, J. MAY 12, 2008. P