LPA No.174 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. LPA No.174 of 2009 in CWP No. 21092 of 2008 Date of decision: 19.5.2009 V.K.Aggarwal ....Appellant vs. Chairman and Managing Director, NTPC Ltd. and others ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE UMA NATH SINGH. --- Present: Mr.Jagdip Jaswal, Advocate, for the appellant. -- J.S.KHEHAR,J. (Oral) Through the instant Letters Patent Appeal the appellant- petitioner has assailed the order passed by the learned Single Judge dated 12.2.2009 disposing of CWP No.21092 of 2008. The controversy raised by the appellant in CWP No.21092 of 2008, was in respect of the acceptance of his option to seek voluntary retirement. The appellant-petitioner had made representation dated 17.6.2003 opting for voluntary retirement. The case set up by the appellant- petitioner before the learned Single Judge was that having submitted the aforesaid request for voluntary retirement he had withdrawn the same through a communication dated 22.7.2003. It is the contention of the learned counsel for the appellant-petitioner that since his request for voluntary retirement had not been accepted prior to the withdrawal thereof, the same could not be accepted after the submission of the communication LPA No.174 of 2009 2 dated 22.7.2003. Undoubtedly the aforesaid submission may have been a justifiable cause for the appellant-petitioner to assail the action of the respondents. The authorities could not accept his request for voluntary retirement after the appellant-petitioner had expressly withdrawn the same through a communication dated 22.7.2003. The first question to be determined in this behalf is whether the appellant-petitioner had actually withdrawn his request to retire voluntarily. As a matter of fact, in response to a legal notice issued by the appellant-petitioner to which the respondents responded vide letter dated 19.5.2008 (Annexure P15) he had been expressly informed that no withdrawal letter had been received by the respondents from the appellant-petitioner. The letter dated 19.5.2008, referred to hereinabove, further reveals that similar communications were earlier addressed to the appellant-petitioner, as well. Although the conflicting stand between the appellant-petitioner and the respondents raised a disputed question of fact which could appropriately have been decided by an ordinary Civil Court, yet the learned Single Judge accepted the assertion contained in the communication dated 19.5.2008, on the basis of the acknowledged position, that the appellant-petitioner had been released all his retiral benefits including the gratuity, provident fund and leave encashment, which were voluntarily accepted by the respondents in September 2003. We affirm the aforesaid conclusion rendered by the learned Single Judge as wholly justified, on account of the fact that the appellant-petitioner is an educated individual, who was holding the status of Manager with the NTPC Ltd. in case had submitted the withdrawal communication dated 22.7.2003, he would not have voluntarily accepted all LPA No.174 of 2009 3 the aforestated retiral benefits two months after the submission of the withdrawal communication. Another issue taken into consideration by the learned Single Judge was that although all the retiral benefits were released to the appellant-petitioner in September 2003 after accepting his request for voluntary retirement, the appellant-petitioner assailed the action of the respondents by approaching this Court in the year 2008 i.e., more than five years after the retiral benefits were received by him. It was therefore, sought to be inferred that the action of the appellant-petitioner was not bona-fide. We also hereby affirm the instant conclusion drawn by the learned Single Judge. The appellant-petitioner has preferred the instant appeal in spite of the aforesaid determination rendered at the hands of the learned Single Judge, and has placed reliance on a judgment rendered by the Apex Court in Ashok Kumar v. State of Bihar and others (Civil Appeal No.3243 of 2008) decided on 2.5.2008) wherein the Apex Court arrived at the conclusion that delay caused in approaching the Court on account of pendency of a review petition or representation submitted by the petitioner should have been taken into consideration before rejecting the claim of the petitioner. The factual position, as was available in the controversy pertaining to Ashok Kumar decided by the Apex Court (reference whereof was made by the learned counsel for the appellant-petitioner during the course of hearing) is inapplicable to the facts and circumstances of this case. A final decision in respect of the claim raised by the appellant-petitioner must be deemed to have been expressly taken when the appellant-petitioner was informed that no withdrawal request had been received from him, and further more when LPA No.174 of 2009 4 the appellant-petitioner was released all his retiral benefits. Subsequent representations or legal notice were inconsequential in the peculiar facts and circumstances of this case, specially when the appellant-petitioner voluntarily accepted his retiral benefits, that too five years before approaching this Court. In view of the above, we are satisfied, that the judgment relied upon by the learned counsel for the appellant is inapplicable to the facts and circumstances of this case. The second submission advanced by the learned counsel for the appellant-petitioner was that even the representation, as also the legal notice issued by the appellant-petitioner were not taken into consideration by the learned Single Judge. For the reasons recorded on the first issue, the instant issue stands automatically answered, and calls for no separate adjudication. The third contention advanced by the learned counsel for the appellant is, that a request for voluntary retirement needs to be expressly accepted and till the same is expressly accepted, no detrimental action is permissible. In this behalf, it is pointed out by the learned counsel for the appellant, that as against his option seeking voluntary retirement dated 17.6.2003, no express order had been passed by the respondents allowing the appellant-petitioner to retire voluntary. As such, the appellant-petitioner is deemed to be continuing in service. Learned counsel for the appellant- petitioner acknowledged during the course of hearing that he had furnished particulars on the basis whereof no objection was sought by him,additionally, the very fact that the appellant-petitioner accepted gratuity, provident fund and leave encashment consequent upon the submission of his request dated 17.6.2003 seeking voluntary retirement, it does not lie in his mouth any more to state that an express order was to be LPA No.174 of 2009 5 passed by the respondents. Thus viewed, we find no merit in the submission advanced by the learned counsel for the appellant-petitioner. No other submission besides those, referred to hereinabove, has been advanced by the learned counsel for the appellant. While examining the factual position pertaining to the controversy raised before the learned Single Judge, as well as, before us during the course of hearing of the present appeal, we are satisfied, that the appellant-petitioner has misused the extraordinary jurisdiction of this Court and raised frivolous pleas. The appellant cannot be excused of being ignorant of his legal right on account of the fact that he was holding the post of Manager with the NTPC Ltd. He is therefore, undisputedly an educated individual. He is blameworthy of wasting precious Court time on two occasions. We are satisfied that exemplary costs should be imposed on the appellant-petitioner. Accordingly, we dismiss the instant appeal with costs quantified at Rs.50,000/-. The costs shall be deposited by the appellant- petitioner with the Legal Services Committee of the High Court within one month from today, and the receipt thereof shall be placed on the record of this case failing which, the Registry shall re-list this case for motion hearing for recovery of costs. ( J.S.Khehar) Judge ( Uma Nath Singh ) Judge May 19, 2009 rk