BALDEV KRISHAN BATRA Vs. VALLABHAI PATEL CHEST INSTITUTE

JUDGEMENT

(1.) The short issue involved in the present writ petition is whether the petitioner, who at the relevant time was working as a Stenographer in the Department of Respiratory Virology with Vallabhbhai Patel Chest Institute, which is an institute under the administrative control of University of Delhi, could be considered for pensionary benefits on seeking voluntary retirement without completing the qualifying service of 20 years. The brief facts relevant for the decision of the present case are that the petitioner was appointed as a Steno- Typist with respondent No.1 " institute with effect from 24.2.1969 and after completing successful probation period was confirmed vide confirmation letter dated 11.5.1971. The petitioner was appointed to the post of Stenographer with effect from 31.8.1973 after having cleared the shorthand test and interview. Respondent No.1-Vallabhbhai Patel Chest Institute is stated to be governed by Statute 28-A issued by the University of Delhi for the purposes of grant of retirement benefits to the employees of the institute. In the year 1976, the petitioner got an opportunity to visit Japan. The petitioner had availed extraordinary leave with effect from 24.7.1976 to 14.7.1979 for pursuing his academic qualification and to learn latest office management skills which as per the petitioner were directly connected with his job. The petitioner re-joined his duties after the expiry of the extraordinary leave and started working with respondent No.1 in the same capacity as a Stenographer. The petitioner, however, sought voluntary retirement vide his letter dated 09.9.1991 and since the entire controversy revolves around three lines letter, therefore, it would be worthwhile to reproduce the contents of the same as under:- <FRM>JUDGEMENT_443_ILRDLH16_2007Html1.htm</FRM>

(2.) The aforesaid request of seeking voluntary retirement was accepted by respondent No.1 " institute by their letter dated 11.9.1991. The contents of the said letter dated 11.9.1991 are reproduced as under:- <FRM>JUDGEMENT_443_ILRDLH16_2007Html2.htm</FRM> After accepting the said resignation, the petitioner started pursuing the respondent for release of pensionary dues but the petitioner was informed by respondent No.1 that since he had not completed the qualifying service of 20 years at the time of seeking voluntary retirement, therefore, he was not entitled for any pensionary benefits. Feeling aggrieved with such response of respondent No.1, the petitioner wrote letter dated 22.10.1991 to the Director of respondent No.1 stating that his stay at Japan for a period of about three years was quite productive in improving ability and workability in his job of stenography and no financial burden was placed on the institute and, therefore, the period of three years stay at Japan should be reckoned to grant retirement benefits and provident fund etc. In response to the said letter dated 22.10.1991, respondent No.1 replied back to the petitioner vide reply dated 30.6.1992 stating that the period of extraordinary leave from 24.7.1976 to 14.7.1979 cannot be considered for computing qualifying service for purposes of retirement benefits, as per the guidelines relating to voluntary retirement. In view of the same, respondent No.1 rejected the request of the petitioner for treating the extraordinary leave period to be counted towards qualifying service for the purposes of pension. I have heard Mr. C. Mohan Rao, counsel for the petitioner and Mr.M.K. Singh, counsel for the respondent.

(3.) The main thrust of argument of counsel for the petitioner is that the voluntary retirement which is sought vide letter dated 09.9.1991 was conditional and not absolute as the petitioner had categorically said that he wished to have voluntary retirement with all benefits according to rules with immediate effect. Counsel for the petitioner stated that once in the said offer he made it very clear that the grant of benefit was a condition precedent, therefore, acceptance made by respondent No.1 vide their memorandum dated 11.9.1991 implied in itself that the offer which was accepted by respondent No.1 was the offer inclusive of grant of benefits and not merely an offer seeking voluntary retirement. Counsel for the petitioner thus impinges the subsequent memorandum dated 30.6.1992 as an after thought exercise on the part of respondent No.1 whereby the petitioner was informed that the extraordinary leave period from 24.7.1976 to 14.7.1979 could not be counted or considered for computing the said period towards qualifying service for the purposes of retirement benefits. Counsel for the petitioner submitted that had the petitioner been made aware that the said period will not be taken into consideration for computing the qualifying service, then, certainly he would not have taken the voluntary retirement and at least would have waited to complete 20 years of service so as to avail the entire retiral benefits. Counsel for the petitioner in support of his arguments has relied upon judgment of the Supreme Court reported in JT 1988 (4) SC 201, Devi Krishan Goyal Vs. District Inspector of Schools, Ghaziabad and Ors, wherein the Hon'ble Supreme Court has held that the option of seeking voluntary retirement can be withdrawn before it is accepted. Based on the said judgment, learned counsel for the petitioner stated that the petitioner had withdrawn his request of seeking voluntary retirement vide his letter dated 27.7.1992, and, therefore, he should have been allowed to join his duties after the said withdrawal. Counsel for the petitioner has also relied upon another judgment reported in AIR 1960 SC 1110, The Manager, Bengal Nagpur Cotton Mills Ltd., Vs. J. Bastian to support his argument that while seeking voluntary retirement, the petitioner could have made it conditional subject to the grant of pensionary dues under the rules. Counsel for the petitioner has placed reliance upon another judgment reported in 1983 LAB.I.C. 1662, Nihal Singh Vs. The Director of Education and Ors. in support of his proposition that till the acceptance of the offer seeking voluntary retirement takes place in accordance with the terms and conditions of the offer, contract of employment does not come to an end. Counsel for the respondent, on the other hand, has placed reliance on Clause 15(c) of Statute 28(A) of University of Delhi which mandates qualifying service of not less than 20 years in case of employees seeking voluntary retirement for the grant of pensionary benefits. It would be relevant to reproduce Sub Clause (c)of Clause 15 of Statute 28(A) as under:-