VINAY CHAUHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this batch of writ petitions the Petitioners are aggrieved with the failure/refusal of the Respondents to accept their requests for revocation of the withdrawal of their respective pleas for premature retirement or discharge from the Army. This legal conundrum has arisen before the Court on several occasions. A Division Bench of this Court had opined in Union of India vs Harendralal Bhattacharya, 1984 (1) SLR 1, a quarter century ago, that a notice for voluntary retirement can be withdrawn unilaterally so long as the employee remains in service, but cannot be allowed after termination of his service. In other words, a notice for voluntary retirement can be withdrawn at any time before it becomes effective. In Balram Gupta vs Union of India, 1987 Supp SCC 228 the Apex Court was seized of a situation where voluntary retirement from service had been submitted in terms of letter dated 24.12.1980. This request, however, was withdrawn by letter dated 31.1.1981 but nevertheless the employee was relieved from service by an Order dated 31.3.1981, which also recorded that the withdrawal of the application for voluntary retirement ?has also been considered and found not suitable?. The Court held that there was no valid reason for withholding the Petitioner's request for revocation or withdrawal of the request for voluntary retirement. More recently, this very question, once again, came up for consideration before the Supreme Court of India in Srikantha S.M. vs Bharath Earth Movers Ltd.,(2005) 8 SCC 314. In that case, the employee had submitted his resignation on 4.1.1993 and it was accepted on that very date. However, Casual Leave was granted from 4.1.1993 to 13.1.1993. The Management informed the employee that he would be relieved after office hours on 15.1.1993. The employee withdrew his resignation on 8.1.1993. Their Lordships referred to Power Finance Corporation Ltd. vs Pramod Kumar Bhatia,: (1997) 4 SCC 280 Shambhu Murari Sinha vs Project and Development India(I), : (2000) 5 SCC 621 and Shambhu Murari Sinha vs Project and Development India(II), : AIR 2002 SC 1341. Since Srikantha had been granted Casual Leave upto 15.1.1993, their Lordships held that vinculum juris continued till that date and the request for withdrawal of voluntary retirement prior to that date perforce had to be accepted. This proposition of law is, therefore, very well -entrenched in our service jurisprudence. The question that remains to be determined by us is whether the request for withdrawal of the application for voluntary or premature retirement had been made prior to its becoming effective, since acceptance thereof would not act as a jural severance of the engagement or contract of personal services.

(2.) THE Petitioner (Vinay Chauhan) in WP(C) 4519/2007 has filed an application for premature discharge on compassionate grounds, citing family problems, on 15.11.2006, which was ?accepted /approved? on 12.1.2007. The Petitioner was informed by the OIC Records that his discharge would be carried out under Item -1(I) (b) and III(iv) of the Table annexed to the Rule 13(3) of the Army Rules, 1954 ( for short 'Army Rules'). The Petitioner, Vinay Chauhan, alongwith two Applicants, were ordered to report to PRTC (Depot Coy) for Discharge Drill? on 10.6.2007 for being Struck off Strength(SoS) from the Army with effect from 30.6.2007. We had sought an explanation from the Respondents as to why a passage of six months was found necessary for the Petitioner to be declared SoS. It has been explained to us that after an application for Discharge had been accepted by the Commanding Officer (CO) it has thereafter still to receive the sanction or approval from the CO under Rule 13(3). One of the factors that are kept in mind at the second stage is whether the discharge will adversely or severely affect the strength of the Army. The consequence is that the date on which a resignation or request for discharge becomes effective is not the date on which it receives the sanction or approval from the OC under Rule 13(3), but the date on which the person concerned is struck of the Strength of the Army, that is, SoS. We hold so. The situation is identical to that which had occurred in Srikantha.

(3.) UJJAGAR Singh submitted an application dated 3.4.1986 requesting from discharge from service at the earliest. According to the Respondents the request was finally approved by the Senior Record Officer, the Grenadiers on 26.4.1986. Thereafter, by letter dated 30.4.1986 the Petitioner, alongwith 27 other persons, was discharged/transferred to Pension Establishment on compassionate grounds. We have perused this letter and the original documents contained in the Petitioner's Dossiers. Learned counsel for the Petitioner had strenuously contended that the discharge of the Petitioner had yet to be sanctioned by the OC Unit on that date. Keeping in view the original documents dated 3.4.1986 we accept the contention of learned counsel for the Petitioner that the failure to score out the symbols in the letter dated 30.4.1986 was by oversight. Mr. Kapur, learned counsel for the Petitioner, contends that before the Petitioner's request for discharge had become legally effective it stood withdrawn by letter dated 22.7.1986. He has also relied on an earlier letter the receipt of which has been denied. The letter purportedly reads as follows: