SURINDER SINGH Vs. VIDESH SANCHAR NIGAM LIMITED

JUDGEMENT

(1.) Petitioner Surinder Singh was working as Class-IV employee with the Overseas Communication Services, Ministry of Communication, Government of India. He joined the said organisation in 1963. On 1st April, 1986 he was sent on deputation to Videsh Sanchar Nigam Limited (in short VSNL). Petitioner's services were regularised with the VSNL on 2nd January, 1990. On 6th June, 1990 petitioner gave three months notice to the respondent and sought voluntary retirement. His offer of voluntary retirement was accepted by the respondent w.e.f. 5th September, 1990. This was so communicated to the petitioner by respondents vide letter dated 31st July, 1990. However, instead of paying the voluntary retirement benefits to the petitioner, the respondent on 2nd February, 1992 intimated to him that acceptance of his voluntary retirement stood withdrawn by the respondent-VSNL. That he was not eligible for pensionary benefits because he being an employee of respondent which is an autonomous Government enterprises cannot take advantage of the pensionary benefits. On receipt of this letter petitioner informed the respondent on 3rd March, 1992 that if the acceptance of voluntary retirement has been withdrawn then he should be allowed to join his duties. Subsequent thereto he made various representations requesting the respondents to take him back in service but with no results. However, vide letter dated 22nd September, 1994 the respondent informed him that he could apply for voluntary retirement w.e.f. 1st January, 1990. Request of the petitioner to allow him to resume duties was declined on 25th October, 1994. Respondent insisted on the petitioner to seek voluntary retirement w.e.f. 1st January, 1990 which he refused hence this petition.

(2.) Respondent raised the plea that since the petitioner was absorbed as regular employee by the VSNL w.e.f. 2nd January, 1990 hence the continuity of his past service rendered with the erstwhile employer could not be made applicable for the purpose of grant of pensionary benefit on his voluntary retirement. The Chief Controller of Finance of the respondent raised this objection. According to him since the petitioner had not completed 30 years of qualifying service nor completed 55 years of age with the respondent hence benefit of Rule 48(A) of the CCS (Pension) Rules was not applicable to him. The only course open to the petitioner was to seek voluntary retirement w.e.f. 1st January, 1990 i.e. before he was absorbed with respondent No. 1, because after 2nd January, 1990 he got absorbed with the VSNL and thus not entitled to avail the benefit of voluntary retirement which was wrongly agreed earlier.

(3.) I have heard counsel for the parties and perused the record. So far as the facts are concerned there is no dispute that petitioner's request for voluntary retirement was accepted vide letter dated 31st July, 1990. It was to take effect from 6th September, 1990 (FN). Vide letter dated 31st July, 1990 the competent authority accepted the request of voluntary retirement. After having accepted his voluntary retirement request on 31st July, 1990 and after having communicated the same, the respondent kept silent till February, 1992 i.e. almost two years. No reason was assigned in this letter while withdrawing the acceptance of voluntary retirement except asking him to resign from the service of VSNL w.e.f. 5th September, 1990 and avail terminal benefits w.e.f. 1st January, 1990. Contention of Mr.Shyam Babu, counsel for the respondent that this Court cannot give declaration under Article 226 of the Constitution nor can declare that the petitioner be deemed to be in continuous service. There is no quarrel with this proposition that the High Court under Article 226 of the Constitution cannot give declaration but at the same time this Court is empowered to set aside an order which violates the right of the petitioner or is against the principle of natural justice. Reliance by Mr.Shyam Babu on the decision of Supreme Court in the case of Executive Committee of Vaish Degree College, Shamli & ors. Vs. Lakshmi Narain & ors., AIR 1976 SC 888 is of no help to him. In fact what the petitioner is asking in this petition is not the declaration but the order of the respondent not permitting him to resume duties to be bad in law. After having withdrawn the order of voluntary retirement in 1992 the petitioner withdrew his request of voluntary requirement and wanted to join duty. Hence, the proper course for the respondent was to take him back in service. Petitioner sought voluntary retirement which was accepted by the respondent. He asked for the pro-rata pension. It was almost two years after that the objection was raised by the respondent that he was not entitled for pension. Once the acceptance of voluntary retirement was withdrawn the petitioner could not be debarred from service. In fact after the cancellation order was passed by the respondent, the petitioner withdrew his letter of voluntary retirement and requested to join the duty. Naturally when the acceptance of voluntary retirement was withdrawn by the respondent the only course open for the petitioner to either seek resignation or join the duty. He opted for the later. Respondent now cannot turn around and say that his asking to allow him to resume the duty cannot be enforced because once he applied for voluntary retirement he cannot be allowed to withdraw the same. The respondent cannot force him to resign. Therefore, what the petitioner is asking that action of the respondent not permitting him to join the duty being bad, particularly when there is no resignation nor any other impediment in resuming his job and once there is no voluntary retirement the petitioner has to be treated in service and naturally continues to be so. Since the petitioner did not perform any work he will not be paid salary for that period. But his joining the duty respondent cannot deprive him. He shall deem to be in continuous service for all other purpose and benefits except for wages.