IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 MFA.No. 40 of 2009(D) -------------------------------- O.P(ELECTION).NO.143/2005 OF DISTRICT COURT, ALAPPUZHA. .................... APPELLANT/ RESPONDENT: ----------------------------------------- SASI CHELAPPAN @ M.C. SASI, AGED ABOUT 53, MUNDUCHIRA VEEDU, NADUVILEMURI, THALAVADY P.O., KUTTANADU TALUK, ALAPPUZHA DIST. BY ADV. MR.T.G.RAJENDRAN. RESPONDENT: ---------------------- RAJU KUNJU KUNJU @ K.K. RAJU, AGED 47 YEARS, S/O. KUNJU KUNJU,KAITHAVANAPARAMBIL, THALAVADY P.O., KUTTANADU TALUK, ALAPPUZHA DISTRICT. BY ADVS. MR.C.V.MANUVILSAN, SMT.K.VIDYA, MR.P.G.SURESH, MR. M.R.VIBIN, MR.OOMMEN M.MATHEW. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009,ALONG WITH M.F.A. NO. 160/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C. R. K.M.JOSEPH & M.L.JOSEPH FRANCIS JJ. -------------------------------------------------------------- MFA NO. 40 OF 2009 & MFA NO. 160 OF 2009 ------------------------------------------------------------------ DATED THIS THE 11TH DAY OF AUGUST 2009 JUDGMENT K.M. JOSEPH, J. Since both these Appeals are connected, they are heard and disposed of by this common judgment. 2. The impugned order is passed by the learned District Court, Alappuzha allowing the petition filed under the Kerala Panchayat Raj Act seeking to set aside the election. Though in the petition there is also a prayer to declare the petitioner “elected” the District Judge has declined to grant the said prayer. It is accordingly that both the petitioner and respondent have filed these appeals. MFA 160 of 2009 is filed by the petitioner in the Election Petition while MFA 40 of 2009 is filed by the respondent in the Election Petition. We are referring to the parties as petitioner and respondent in the Appeals also. MFA.NOS.40/09D & 160/09B 2 3. The case of the petitioner, in brief, is as follows: The petitioner and the respondent were the only candidates of Division No.4 viz. Naduvilemuri Division of Champakkulam Block Panchayat in the election held on 24-9-2005. The said Division is reserved [Scheduled Caste]. In the election the petitioner got 3045 votes and respondent got 3398 votes out of 6593 total votes and 150 votes were invalid. According to the petitioner the respondent was working as Conductor in the KSRTC at the time of submitting his nomination and thereby he was disqualified for contesting election under Section 30 of the Kerala Panchayat Raj Act. 4. The respondent filed objections inter alia stating that he was elected by a margin of 339 votes and that, he was not a Conductor in the KSRTC on the date of filing of nomination. According to him he retired from the service w.e.f 31-8-2005 under the voluntary retirement scheme. The scrutiny of the nomination paper was done by the returning officer in the presence of those who filed the nomination and at that time the MFA.NOS.40/09D & 160/09B 3 petitioner has not raised any objection to it. Further it was contended that the respondent did not receive any salary or any emoluments from KSRTC on or after 1-9-2005. 5. The evidence consists of A1 to A3 which are copy of the application for VRS, copy of the application for VRS in the printed form, and the sanction order respectively. Apart from the documentary evidence petitioner was examined as PW1. The respondent produced B1 and B2. B1 is the proceedings sanctioning pension and DCRG to him dated 4-7-2006 and B2 is the copy of intimation slip of pension payment order dated 6-7- 2006. RW1 to RW4 were examined on the side of respondent. Exts.X1 To X3 are the series of court exhibits. 6. The court below found that under Rule 56 of Kerala Service Rules, Part III, an employee, who is desirous of retiring from the service voluntarily must submit a notice in writing of his intention to retire at least three months before the date on which he wishes to retire. It was found that the respondent has not complied with the said provision. Ext.A1 shows that he MFA.NOS.40/09D & 160/09B 4 submitted a written application dated 1-9-2005 for voluntary retirement. Ext.A2 shows that he filed another application dated 3-9-2005 in the printed form for the same purpose and the same was recommended by the A.T.O on 5-9-2005. There is nothing mentioned how the intervening two days would be dealt with. The court below found that if at all voluntary retirement can be granted on the basis of the application, it can be only after completing 3 months time. It was found that as per the order dated 9-5-2006 the petitioner was granted voluntary retirement with effect from 31-8-2005. The court relied on the judgment in Selvaraj Francis v. Returning Officer (2004(3) KLT 889) wherein this Court took the view that voluntary retirement cannot be accepted with retrospective effect. Thereafter the court also proceeded to deal with the contention of the respondent based on Sitaram Jivyabhai Gavali v. Ramjibhai Potiyabhai Mahala & Others (AIR 1987 SC 1293) and distinguished the said decision and took the view that it cannot be applied to the facts of this case. Thereafter dealing with the MFA.NOS.40/09D & 160/09B 5 question whether the petitioner could be declared as elected, the court noted that there are only two grounds mentioned in Section 103 of the Act. It was found that neither ground is satisfied and on the said reasoning the court rejected the said prayer. We heard the learned Counsel appearing on behalf of the petitioner and the respondent. 7. Learned Counsel for the petitioner Shri. Manu Vilsan submitted that having regard to the fact that only the petitioner and respondent were the candidates, having found that the election of the respondent cannot be sustained, there was no reason why the learned Judge should have refused the relief for declaring the petitioner as elected. He would contend that his case can be rested under the provisions of Clause (b) of Sec.103 of the Act. SECTION 103: “If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Court is of opinion- (a)that in fact the petitioner or such other MFA.NOS.40/09D & 160/09B 6 candidate received a majority of the valid votes; or (b)that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes. The Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected”. He also referred to Section 120(8) and contended that the said provision is attracted to the facts of the case and relief can be granted. Shri. T.G. Rajendran, learned Counsel appearing for the respondent would contend that the respondent had stopped his work in KSRTC on 31-8-2005. He had made an application dated 3-9-2005 for retirement. In the application he had requested that he may be permitted to retire from 3-9-2005. The authority has not rejected his application, on the contrary after the delay of more than one year the authority has passed an order granting sanction for voluntary retirement with effect from 31-5-2005. He has received the pension from 1-9-2005. MFA.NOS.40/09D & 160/09B 7 He would further take us through the Rule 56 of the Part III of KSR. He would in particular emphasis that he is entitled to the benefit of the proviso to Sub Rule 4 of Section 56. Since Rule 56 is the crucial provision that falls for consideration, we extract the relevant portion of the same. “ Rule 56 of Part III of KSR: A retiring pension is granted to an employee who retires voluntarily after 20 years of qualifying service subject to the following conditions:- (i) He shall give notice in writing to the appointing authority or the person sanctioning authority of his intention to retire at least three months before the date on which he wishes to retire: Provided that the employee may make a request in writing to the appointing authority to accept notice of less than three months giving reasons therefor. On receipt of such request the appointing authority may consider it 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 MFA.NOS.40/09D & 160/09B 8 three months on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. (ii) If the retirement of the employee takes place while on leave not due, the retirement shall be effective from the date of commencement of leave and the leave salary paid, if any, shall be recovered either from the Death-cum-Retirement Gratuity payable to him or otherwise; (iii) The person retiring voluntarily should make sure before applying for retirement that he has put in 20 years' of qualifying service. The rounding of qualifying service prescribed in rule 57 is not permissible at this stage; (iv) Voluntary retirement of an employee shall become effective on the grant of permission to retire by the authority competent to make appointment to the post: Provided that where the authority competent to make appointment to the post does not refuse to grant permission for retirement before the date on which the employee wishes to retire specified in the notice under clause (i), the retirement shall become MFA.NOS.40/09D & 160/09B 9 effective from the date specified in the notice;” According to him in so far as he made a request that he may be permitted to retire with effect from 3-9-2005 and no decision refusing his request was taken in the matter, it must be treated that he retired on 3-9-2005. 8. In this context he sought to enlist the decision of the Apex Court in State of Haryana And Others v. S.K. Singhal (1999(4)SCC 293) and Ashok Kumar Sahu v. Union of India & Ors. (JT 2006(7)SC 274). The first question to be considered is whether the decision of the learned District Judge setting aside the election of respondent is legal or not. We have already extracted Rule 56. There is no dispute that Rule 56 would govern the issue. Admittedly the respondent was working as Conductor in the KSRTC as on 31-8-2005. He made an application seeking voluntary retirement proposing to retire under the voluntary scheme. Application is Exhibit A1. It is dated 1-9-2005. Ext.A1 was not in the printed form. He sought voluntary retirement. He made an application in the printed MFA.NOS.40/09D & 160/09B 10 form seeking voluntary retirement on 3-9-2005 vide A2. In the application it is stated the date of superannuation of the respondent is on 30-1-2007. He sought voluntary retirement from 3-9-2005. It is stated that the last day of duty performed is 31-8-2005. Application apparently was submitted to the Assistant Transport Officer. The said officer would appear to have certified and recommended the application on 5-9-2005. Column No.17 deals with remarks if any. It is necessary to refer to the Note at the end of page 2 of Ext.A2. It reads as follows: “In the case of voluntary retirement three months notice is required before the date on which he wishes to retire. If less than three months reasons should be furnished in colum 17.” There is no dispute that there are no reasons mentioned in column 17. No doubt the reason for purpose of retirement in another column is shown as on medical ground. On this application the order that is passed is Ext.A3. It reads as follows: “Sri.M.C.Sasi, Conductor, Thiruvalla MFA.NOS.40/09D & 160/09B 11 (Edathuva) P.S.C Advise list No.SR.II(3)/ 429/79/CW. dt.9-1-84, Sl.No.296, due to retire from the service of the Corporation on the A/N of 30-10- 2007 (Date of Birth is 6-10-1952) had applied for Voluntary retirement with effect from F/N of 3-9- 2005. He has got more than 20 years of service in K.S.R.T.C Corporation. The last date of duty performed by him is 31-8-2005. Having considered his request in all aspects sanction is accorded to Sri. M.C.Sasi, Conductor, Thiruvalla (Edathuva) to retire voluntarily from the service of the Corporation with effect from A/N of 31-8-2005 vide rule 57 Part III KSR. His name is also removed from the rolls of the Corporation with effect from A/N of 31-8-2005”. It is not in dispute that the date of filing of nomination is 6-9-2005. The date of the election was 24-9-2005 and the date of declaration of election was 27-9-2005. Therefore the question which falls for our consideration is whether as on the date of filing of the nomination the respondent was an employee of KSRTC attracting the disqualification mentioned in Section 30 of the Panchayat Raj Act or whether he had legally retired by MFA.NOS.40/09D & 160/09B 12 way of voluntary retirement prior to that date. Section 30 of the Act reads as follows: “30(1): No officers or employee in the service of the State or Central Government or of a local authority or a corporation controlled by the State or Central Government or of a local authority or any company in which the State or Central Government or a local authority [not less than fifty one percent share] or of a Statutory Board or of any University in the State shall be qualified for election or for holding office as a member of a Panchayat at any level”. 9. A similar question arose before this court in the decision in Selvaraj Francis v. Returning Officer (2004(3)KLT 889). Therein the party concerned was working as a Checking Inspector in the KSRTC. He sought voluntary retirement. Sanction was given by formal order dated 28-9-2000. But retirement was sanctioned with effect from 31-8-2000. The date of nomination was 1-9-2000. The declaration of the result took place on 27-9-2000. On these facts and dealing with the contention that the elected candidate had been voluntarily MFA.NOS.40/09D & 160/09B 13 retired from a date prior to the date of nomination this Court held as follows: “6. The further contention of the appellant is that the second respondent continued to hold the office of profit, even on the date of declaration of the result. The basic proof of acceptance of voluntary retirement is the order dated 28-9-2000 passed by RW.2. In that order; RW.2 has not mentioned about his alleged earlier order dated 31- 8-2000. In such circumstances, whatever stated in amplification of the order dated 28-9-2000 is only a camouflage to hide the manipulations alleged. Thus, until 28-9-2000 he continued to be holding the office of profit as a Checking Inspector.” 7. Further, Ext.X4 discloses that the second respondent had put in an application for voluntary retirement on 30-8-2000 to the Managing Director of K.S.R.T.C. Ext.X4(b), is much relied on by the second respondent as the sanction of voluntary retirement. It is only an undertaking in which; he clearly prayed that he may be exempted from the usual formalities as a special case consequent on voluntary retirement. In the margin of this undertaking, the Personnel Officer had approved it MFA.NOS.40/09D & 160/09B 14 as a special case. The approval is thus only an exemption from the usual formalities and not a sanction of waiver of the notice nor a sanction of voluntary retirement. 8. Sanction of voluntary retirement comes only by the order PLA-03/7750/00 dated 28-9-2000 passed by the Assistant Personnel Officer in charge of the Personnel Manager, RW.2. The order dated 28-9-2000 says that the voluntary retirement has been sanctioned with effect from 31-8-2000. It does not refer to his earlier order, if any, allowing such retirement. Thus the voluntary retirement was sanctioned on23-9-2000. There is no provision in law to allow a retirement with retrospective effect. Even if it is retrospective, that will not enable the second respondent, using an order dated 28-9-2000, to file a nomination paper for an election on 1-9- 2000. The declaration of the result took place on 27-9-2000 prior to the issuance of the order of retirement. That means not only at the time of nomination, but also on the date of declaration of results, the second respondent was not qualified to contest the election, as he was thus holding an office of profit as an employee of a Public Sector MFA.NOS.40/09D & 160/09B 15 undertaking”. 10. It is this Division Bench decision which is followed by the learned District Judge. Confronted with the situation, the learned Counsel for the respondent would seek to derive support from the provisions of Sub Rule 4 of Rule 56 which we have already referred above. The question as to whether the respondent has retired must be decided with reference to the statutory rules which bear on the issue. Under the Rule it is open to a person having 20 years qualifying service to seek to retire provided he satisfies the conditions which have been mentioned, which we have already extracted. He has to give a notice in writing to the competent authority or pension sanctioning authority of his intention to retire at least 3 months before he seeks to retire. This is contained in Clause 1. No doubt an employee may make a request in writing to the appointing authority to accept notice of less than 3 months giving reason thereof. It is open to the competent authority to consider such request for the curtailment of the period of notice MFA.NOS.40/09D & 160/09B 16 of 3 months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience he may relax the requirement of notice of 3 months on condition that the employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of 3 months. Clause 4 specifically indicates that voluntary retirement can become effective only when permission is granted by the competent authority. No doubt the proviso to the said provision contemplates the deemed grant of permission. The question that falls for consideration is whether it will apply to a case like the present. According to the respondent he made an application within the meaning of proviso seeking to retire on 3-9-2005 relaxing the 3 months period. We are of the opinion that there is no merit in the contention of the respondent based on the proviso. In the first place as found by the learned District Judge also the respondent has not given any reason within the meaning of proviso to Rule 1 as to why he may be permitted to retire relaxing the period of MFA.NOS.40/09D & 160/09B 17 3 months mentioned in Clause 1. This is reinforced on a perusal of Ext.A2. Still further we notice that the respondent filed A2 application itself only on 3-9-2005. The application is recommended only on 5-9-2005 by the Assistant Transport Officer. Apparently the application has to be transmitted to the competent authority. We notice that Ext.A3 is issued by the Executive Director who appears to be the appointing authority. Still further we notice that under the scheme of Rule 56 voluntary retirement is not automatic as it requires an order granting sanction to retire by the authority competent to make appointment. The notice which is referred to in the proviso can only be the notice mentioned in clause 1 wherein the employee gives a notice in writing of his intention to retire with 3 months notice. In fact Clause 5 appears to indicate that permission to retire is the rule and exceptions are pending disciplinary proceedings for a major penalty and other circumstances mentioned in the same. Therefore the rule contemplates that the authority will grant permission as a rule normally. Any delay on MFA.NOS.40/09D & 160/09B 18 the part of the officer after the expiry of the period of the notice which means notice issued under Rule 1 where the date mentioned should be after a period of 3 months cannot be accepted. In other words deemed grant of permission is only after the period of 3 months is over. It is also rational to not penalise the employee who is otherwise entitled to voluntary retirement to deprive him of the benefit of the rule by reason of mere administrative delay in passing a formal order. But that is not the contention of the respondent as the respondent's contention is that under Ext.A2 application made on 3-9-2005, he should be treated as retired on 3-9-2005 itself. In the first place as already noted the proviso does not warrant any such submission. We also think that the right to a deemed permission under proviso to Clause IV can be invoked only in a case where a notice is indicating a date, provided at least 3 months notice is given. In such circumstances we do not see any merit in the contention of respondent. It may be true that he derived pension from 1-9-2005. MFA.NOS.40/09D & 160/09B 19 11. We also do not think that what we have indicated is contrary to the decisions of the Apex Court. In the decision of the Apex Court in State of Haryana And Others v. S.K. Singhal (1999 (4) SCC 293), the question arose under the provisions of Panchayat Civil Service Rules. The respondent joined as a Medical Officer on 16-8-1995 and on the same day he issued a notice seeking voluntary retirement. After expiry of 3 months, telegram was sent asking him to join duty. The relevant rule was 5.32 B(2): “ the notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority subject to Rule 2.2 of the Punjab Civil Services Rules Vol. II: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in sub-rule(1) the retirement shall become effective from the date of expiry of the said period” The Court held as follows: “ In the case before us sub-rule (1) of Rule 5.32(B) contemplates a “notice to retire” and not a MFA.NOS.40/09D & 160/09B 20 request seeking permission to retire. The further “request” contemplated by the sub-rule is only for seeking exemption from the 3 months' period. The proviso to sub-rule(2) makes a positive provision that “where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in sub-rule(1), the retirement shall become effective from the date of expiry of the said period. The case before us stands on a stronger footing than Dinesh Chandra Sangma case so far as the employee is concerned. As already stated Rule 2.2 of the Punjab Civil Services Rules Vol. II only deals with a situation of withholding or withdrawing pension to a person who has already retire”. In Asok Kumar Sahu v. Union of India & Ors. ( JT 2006 (7) SC 274), the appellant was a member of Indian Police Service. He was placed under suspension on 4-6-1997. Disciplinary proceedings were taken against him. He expressed desire to retire on 1-7-2000 from the service of All India Service on completion of 20 years with effect from 1-8-1997. With effect from 1-8-1997 sanction was granted by the Government MFA.NOS.40/09D & 160/09B 21 accepting the request with effect from 1-8-1997 without prejudice to the on going disciplinary proceedings. The appellant challenged the same before the High Court. According to him the offer to retire voluntarily could have been accepted only prior to 1-8-1997. He had withdrawn his offer in 1999. The court referred to the decision of the Apex Court in State of Haryana And Others v. S.K. Singhal (1999(4)SCC 293). The Court held, inter alia, as follows: “Rule 5.32(B)(1), in the present case, contemplates “notice to retire” and not a request seeking permission to retire. The “request” mentioned in this rule is only for waiving period of notice. The proviso on the other hand makes a positive provision that retirement shall become effective on expiry