z^ HIGH GOURT OF CHHATTISGARH AT BILASPUR RESPONDENTS WRIT PETITION (S) No. 578 of2007 Krishna Lal Dewangan, aged about 59 years, S/o Late Shri C.P.Dewangan, R/o Kumhar Para, Karbala Road, Bilaspur (C.G.) VERSUS : 1. State Bank of India, through - The Chairman, Central Office, Madama Cama Road, Mumbai (M.S.) 2. State Banl< oflndia, Through The ChiefGeneral Manager, Local Head Office, Hoshangabad Road,Bhopal (M.P.) 3. State Bank of India, Through - The Deputy Geheral Manager, Zonal Office, Bairan Bazar, Raipur (C.G.) 4. State Bank of India, Through the Assistant General Manager, Regional Office, Region- 2, Nehm Chowk, Bilaspur (C.G.) 5. State Bank of India, Through - The Chief Manager, Main Branch, Near High Coun, Bilaspur (C.G.) WRIT PETITON UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri. J. Present: Shri R.K.Kesharwani, Advocate for the petitioner. Shri Sanjay K. Agrawal, Advocate for the respondents. ORDER (Passed on .~J.H'. day ofJuly, 2008) 1. this petition, the petitioner seeks a direction to the respondent No. 5 to pay the revised salary and allowances for 25 days with effect from 1.11.2002 and further the interest thereon from 26.11.2003 till the date ofpayment. The petitioner farther challenges the validity of the order dated 28.11.2003 (Annexure P/6) whereby the salary of the petitioner for 22 days has been deducted and further compensation for mental and physical harassment. 2. The brief facts, in nutshell, are that the petitioner, while working as Deputy Mariager in State Bank oflndia, Bilaspur Branch, submitted an application ^z ^ dated 29,04.2003 (Annexure P/l) seeking voluntary retirement with effect from 31.7.2003. No order was passed on the said application and the petitioner continued in service. Thereafter, on 17.9.2003, the petitioner sent a reminder (Annexure P/3) stating that the petitioner had already made an application for voluntary retirement on 29.4.2003. The petitioner was summoned for counseling on 26.7.2003. Without passing any order, in the meantime, the petitioner was transferred on 16.8.2003 to Mungeli. The petitioner again requested to accept his application dated 29.4.2003 (Annexure P/l) and to permit him to retire on 30.09.2003 with terminal benefrts. The. petitioner received a letter dated 7.10.2003 (Annexure P/4) whereby the petitioner was informed that his earlier application dated 29.04.2003 was not considered for voluntary retirement. Since the petitioner has sent second application dated 17.09.2003 (Annexure P/3) whereby the petitioner has requested for voluntary retirement with effect from 30.09.2003, the same shall be considered within a period ofthree months. On 05.11.2003 (Annexure P/5), the petitioner received one more letter to make a fresh application for voluntary retirement if the legal statutory period of three months is not complied with, else, the salary for the remaining period may be deducted accordingly. On 28 Noyember, 2003 (Annexure P/6), the petitioner received a letter whereby the application dated 17.9.2003 (Annexure P/3) was approved and the petitioner was granted voluntary retirement with effect from the close of business hours on 25 November. 2003. It was further stated that the voluntary retirement from bank service was sought without the due notice of three months, therefore the bank would recover a part of the salary in lieu of short notice period from the petitioner. Accordingly, the salary period for 21/22 days was directed to be recovered from the petitioner. The representation of the petitioner against recovery of 21/22 days salary and allowances was rejected. The petitioner sent a detailed letter dated 24.10.2005 (Annexure P/9) and a reminder dated 2.11.2005 (Annexure P/10) to make the payment of salary of22 days. The payment of 22 days was not made. Thus, this petition. Shri Kesharwani, leamed counsel appearing for fhe petitioner would submit that the respondents have committed an error by treating the date ofreminder i.e. 17.09.2003 (Annexure P/3) as the date ofthe application The petitioner had made a request on 29.04.2003 (Annexure P/l) in terms ofRule 19(1) of the State Bank oflndia Officers Service Rules (hereinafter referred to as 'the Rules'). The petitioner was not granted pennission to take retirement with effect from 31.7.2003 after the notice period of 3 months. Thus, the reminder was sent on 17.09.2003. The limitation for period ofnotice ofthree months may be computed from the date of first application not from the date of reminder. The authorities have further committed an error in calculating the notice period and in deducting salary for the period of21 days. Shri Kesharwani would fiirther submit that the petitioner is entitled to payment for a period of 21/22 days with interest. The petitioner is also entitled to revised pay as the pay of the employees of the State Bank was revised by that time. Per contra, Shri Sanjay K. Agrawal, leamed counsel appearing for the respondents would submit that the petitioner has abandoned his first application dated 29.4.2003 (Annexure P/l) as the counseling was done on 26.7.2003 and the petitioner desired to be posted at Bilaspur and accordingly, the petitioner was transferred to Mungeli and he joined at Mungeli, Bilaspur on 16.8.2003. Looking into the conduct ofthe petitioner, the first application dated 29.4.2003 (Annexure P/l) was treated to have been abandoned. The ^^ r 8. (Annexure P/l). Therefore by any stretch of imagination, the second letter dated 17.09.2003 (Annexure P/3) cannot be treated as the application for voluntary retirement. Secondly, in the letter dated 17.09.2003 (Annexure P/3), the petitioner has sought retirement with effect from 30.09.2003 and the authorities concemed have granted permission on 28.11.2003 (Annexure P/6) with effect from 25.11.2003. The delay on the part of the authorities in considering the application dated 29.04.2003 (Annexure P/l) and granted permission with effect from 25.11.2003 on the basis of reminder dated 17.09.2003 (Annexure P/3) was notjust and proper. The petitioner continued till the permission was granted and was transferred to some other place, cannot be a ground for delay and this does not amount to abandomTient of earlier application dated 29.04.2003 (Annexure P/l). The Supreme Court, in the matter of Union of India and another v. Wing Commander T.Parthsarthy , observed as under: A request for premature retirement which required the acceptance ofthe competent or appropriate authority will not be complete till accepted by such competent authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for premature retirement was made to take effect from a future date as in this case." 9. Fourth proviso to Rule 19(1) ofthe Rules reads as under: 19.(1) An officer shall retire from service ofthe Bank on attaining the age of fifly-eight years or upon the completion of thirty years' service or thirty years' pensionable service if he is a member of the Pension Fund, whichever occurs first. XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX .XXX Provided further that an officer who has completed 20 years' service or 20 years' pensionable service, as the case may be, may be permitted by the competent authority to retire from the Bank's ' (2001) 1SCC 158 ^ ..i Rf '^ ? • ^^•' i'-'J 1n1 service, subject to his giving three months' notice in writing or pa; in lieu thereof unless this requirement is wholly or partly waivec by it." 10: On perusal ofthe statutory provisions, it appears that the permission by ths competent authority is imperative as it says "may be permitted by the government". Thus, it is for the competent authority to pass order, within notice period. Without proper order, the petitioner could not have walked oul from the office after completion of a period of 90 days i.e. 31.7.2003 as requested by the petitioner in his application dated 29.04.2003 (Annexure p/1). 11. The Hon'ble Supreme Court, while considering nature of voluntary retirement in the matter o{ State of Haryana and others v. S.K.Singhal, observed as under: "9. The employment of govemment servants is govemed by rules. These rules provide a particular age as the age of superannuation. Nonethelss, the rules confer a right on the Govemment to compulsorily retire an employee before the age of superannuation provided the employee has reached a particular age or has completed a particular number ofyears ofqualifying service in case it is found that his service has not been found to be satisfactory. The mles also provide that an employee who has completed the said number ofyears in his age or who has completed the prescribed number of years of qualifying service could give notice of, say, three months that he would'voluntarily retire . on'the expiry ofthe said period ofthree months. Some mles are couched in language which results in an automatic retirement ofthe employee upon the expiry ofthe period specified in the employee's notice. On the other hand, certain mles in some other departments are couched in language which makes it clear that even on expiry of the period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be communicated. The relationship of master and servant in the latter type of rules continues after the period specified in the notice till such acceptance is communicated; refusal of pemiission could also be communicated after 3 months and the employee continues to be in service. Cases like Dinesh Chandra Sangfna v. State of Assam, B.J.Shelat v. State ofGujarat and Union of India v. Sayed Mvzaffar Mir belong to the former categor}'' where it is held that upon the expiry of the period, the voluntary retirement takes effect automatically as no order of refusal is passed within the notice period. On the other hand H.P.Horticulture Produce (1999) 4 SCC 293 A^U^M*rfK**^S^U^'< '^3 -•y" '-" st ; ; j '^^a»»"y / c^ • • - I • -' '^?'""^ ) 't. Marketing c& Processing Corpn. Ltd. v. Suman Behari Sharma belongs to the second category where the bye-laws were interpreted as not giving an option "to retire" but only provided a limited right to "seek" retirement thereby implying the need for a consent ofthe employer even if the period of the notice has elapsed. We shall refer to these two categories in some detail. XXX XXX XXX XXX XXX XXX 14. Before referring to the second category of cases where the mles require a positive acceptance of the notice of voluntary retirement and communication thereof, it is necessary to refer to the decision of this Court in Baljit Singh (Dr') v. State ofHaryana strongly relied upon by the learned counsel for the appellants and to Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia. The former case arose under Rule 5.32(B) of the Punjab Civil Services Rules. That rule extracted earlier contains an express provision in the proviso to sub-rule (2) that the retirement takes effect automatically ifrefusal is not communicated within 3 months. In that case, when the employee gave notice for voluntary retirement on 20-9-1993, criminal cases were pending against him. After expiry of3 months,.on 25-2-1994, the competent authority declined to accept the notice. A two-Judge Bench of this Court, however, held that the voluntary retirement did not come about automatically on the expiry of the notice period but that it could take effect only upon acceptance of the notice by Government and that the acceptance must also be conununicated and till then the jural relationship of master and servant continues. This Court referred only to the decision of the two-Judge Bench in Sayed Muzaffar Mir case and stated that that case was to be confined to its own facts. The two-Judge Bench ofthis Court in eases in Baljit Singh case did not notice that there were two three-Judge Bench cases in Dinesh Chandra Sangama and Shelat taking the view under similar rules that a positive order was to be passed within the notice period withholding pennission to retire and that the said order was also to be communicated to the employee during the said period. By stating that an order ofacceptance ofthe notice was necessary and that the said acceptance must be communicated to the employee and till that was done the jural relationship continued and there was no automatic snapping thereof on the expiry of 3 months' period, the tn'o-Judge Bench, in our view, has gone contrary to the three-Judge Bench cases which were not brought to its notice. In the above circumstances, we follow the fwo three-Judge Bench cases for deciding the case before us." 12. Further, in the matter ofAshok Kumar Sahu v. Union oflndia and others3, the Supreme Court observed as under: "29. Cases ofvoluntary retirement can broadly be divided into the following three categories: (i) where voluntary retirement is automatic and comes into force on the expiry ofnotice period. ' 2006 6 SCC 704 J-^' 1 . ^\ w^,sf^: '."). ^ '^ "" .•' /; ~?~) ^' ^- (ii) when it comes into force; unless an order is passed within the notice period withholding permission to retire; and (iii) when voluntary retirement does not come into force unless permission to this effect is specifically granted by the controlling authority." 13. Applying the well settled principles ofvoluntary retirement to the facts ofthe case, it is clear from the fourth proviso of the Rules 19(1) that voluntary retirement cannot come into force unless permission to this effect is specifically granted by the competent authority. The decision ofthe Supreme Court in the matter of Tekchand v. Dile Ram , relied on by learned counsel for the respondents, may not be relevant to the facts of the case on hand as in matter ofTekchand, Rules provide for presuming acceptance on expiry ofthe period ofnotice as observed by the Hon'ble Supreme Court in para 36, which is as under: "36......In this decision effect ofRule 56(k) ofthe Fundamental Rules is also considered which answers the argument of the learned counsel for the respondent on this aspect. It may also be noticed that under Rule 48-A in the Govemment of India's decision giving instructions to regulate voluntary retirement it is stated: "Even where the notice of voluntary retirement given by a govemment servant requires acceptance by the appointing authority, the govemment servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiiy ofthe period ofnotice." 14. Looking from all angles, deduction of salary of the petitioner for 21/22 days was not legal and proper. Thus, the petitioner is entitled to 'salary for the period of 21/22 days with interest @ 6% per annum from the date it became due till the actual payment is made. The payment of revised pay cannot be considered in this petition as the petitioner has not laid down sufficient groimds and materials for grant ofrevised pay. 15. Thus, the petition is allowed to the above extent. Costs easy. (2001) 3 SCC 290 f^ ^^ ^