T.C. SHARMA Vs. GURUKULA KANGRI VISHWAVIDYALAYA

JUDGEMENT

(1.) PETITIONER was a permanent employee of the Respondent - University. He was a lecturer. The Respondent - University is an authority within the meaning of Article 12 of the Constitution of India. Petitioner, in course of his employment, applied to the Government of India for obtaining a foreign teaching assignment. In order to make the said application effective, Petitioner was required to obtain no -objection of the Respondent - University. Petitioner obtained the no -objection of the Respondent - University and then applied. Upon being selected, the Government of Nigeria offered a teaching appointment to the Petitioner. Petitioner submitted the said appointment letter to the Respondent - University along with a letter requesting the Respondent - University to relieve him in order to enable him to join his foreign assignment. The Respondent - University did not respond to the said letter of the Petitioner. Petitioner, accordingly, applied for leave and was granted leave for 40 days from 1.07.1982. While obtaining the leave, Petitioner had indicated that the purpose of obtaining the same was to pay a foreign visit. In the application for leave, he had indicated his address of Delhi, which, it is not in dispute, is the permanent residence of the Petitioner. In terms of such grant, the leave of the Petitioner expired on 10.08.1982. Petitioner was required to join back his duties at the Respondent - University on 11.08.1982. Petitioner did not do so. He did not even apply for extension of his leave. Sometimes in September or October, 1982, the Respondent - University, by a letter addressed to the Petitioner at his Delhi address, directed the Petitioner to join back his duties on the date mentioned in the said letter with a threat that in the event Petitioner not joining the duty on receipt of the said letter on or before the said date mentioned therein, his services will be terminated. Since, by that time, Petitioner had already gone to Nigeria, he did not receive the said letter and, accordingly, did not give any reply thereto. In as much as the Petitioner had no knowledge of the contents of the said letter, he also did not join back his duties at the Respondent - University at or before expiry of the date mentioned in the said letter. The Respondent - University, accordingly, on 9.01.1983 dismissed the Petitioner from service. In 1989, Petitioner came back to India and, according to him, went to the Respondent - University to resume his duties, when he was not permitted to do so. It appears that the Petitioner, subsequent thereto, worked at Delhi. After the Petitioner reached the age of superannuation, he went to the Respondent - University and asked for payment of his dues. He claimed gratuity, pension, provident fund, arrears, including those on account of revision of salaries effective from 1983. The Respondent - University, as it appears, agreed to pay the admitted dues of the Petitioner, like the salaries not paid, arrears on account of revision, if any, applicable to the Petitioner and all other dues, but refused to pay the gratuity and pension on the ground that the Petitioner having been dismissed, is not entitled to either gratuity or pension. Petitioner held out to the Respondent - University that the dismissal of the Petitioner be treated as resignation by him, so as to enable the Respondent - University to pay to the Petitioner pro rata gratuity and pension. The Respondent - University did not agree and hence the present writ petition.

(2.) THE facts, as above, are not in dispute. It is also not in dispute that unless an employee has superannuated or has demitted his office in accordance with law, i.e., either by resignation or by obtaining voluntary retirement, pro rata pension and gratuity is not payable to such an employee. In the instant case, Petitioner has been dismissed from service on 9.01.1983. In view of the said dismissal, in accordance with the rules, Petitioner is not entitled to pro rata pension and gratuity. The one and the only question in the instant writ petition is whether the dismissal dated 9.01.1983 can be said to be a dismissal at all.

(3.) THAT being the situation and there being no dispute that the Petitioner, having crossed the age of superannuation, cannot seek to resume his duties in the Respondent - University, we declare that while the said order of dismissal dated 9.01.1983 is a nullity, the period between 11.08.1982 until the date the Petitioner reached the age of superannuation shall be treated as dies non, in as much as Petitioner during the said period did not show any genuine inclination to serve the Respondent - University. On the basis of the declaration as above, the Respondent - University is directed to pay to the Petitioner all his terminal dues, including gratuity and pension on pro rata basis, in as much as in view of the declaration as above, it shall be deemed that the Petitioner superannuated upon reaching the age of superannuation. We direct the Respondent - University to write to the Petitioner, within a period of one month from today, a letter at the address of the Petitioner as given in the cause title of the writ petition, indicating what amounts the Petitioner is entitled to be paid in view of the declaration as above, including all other dues of the Petitioner due and payable to him. In the letter, the Respondent - University shall inform the Petitioner what steps, if any, the Petitioner would be required to take to receive those payments. No sooner the Petitioner takes those steps, but not later than three months there from, all such dues and claims of the Petitioner shall be paid.