M SANTHANAKRISHNAN Vs. CORPN OF MADRAS

JUDGEMENT

(1.) THE petitioner challenges a communication sent by the first respondent to the petitioner instructing him to issue notice to the Government for orders on his request for voluntary retirement since the earlier notice sent by the petitioner was not a notice sent by the petitioner was not a notice in terms of Fundamental Rule 56 (3) (a ).

(2.) THE facts relating to the filing of the writ petition are : The petitioner was appointed as Lower Division Clerk on February 16, 1957 by the first respondent-Corporation. He was promoted as Upper Division Clerk/licence Inspector on August 13, 1959, as Assessor on January 4, 1967 and as Assistant Revenue Officer on May 30, 1979, as Additional Revenue Officer on October 5, 1989 and as Circle Officer on February 1, 1990. The petitioner was promoted as Revenue Officer on June 1, 1990. The normal date of superannuation for the petitioner will be November 2, 1992 since he was born on November 2, 1934. However, the petitioner is entitled to hold office till November 30, 1992 in terms of existing rules. It seems due to deterioration of his health the petitioner issued a notice of voluntary retirement on January 31, 1992 addressed to the first respondent-Commissioner and requested that he may be permitted to retire voluntarily on May 1, 1992. The first respondent in turn informed the petitioner on March 18, 1992 that the three month's period will expire on June 1, 1992. However, it seems the first respondent by letter dated May 13, 1992 intimated the petitioner that his request for voluntary retirement cannot be forwarded to the State Government as revision of property tax for under-assessment of commercial properties has been entrusted to him, that he has to attend to the revision of profession tax and that a suitable decision will be taken on completion of reassessment of tax for commercial properties and revision of profession tax. It seems the petitioner made representations to the second respondent on June 2, 1992 as against the communication received from the first respondent while pointing out the action of the first respondent is contrary to the statutory provision of F. R. 56 as the petitioner could be deemed to have retired on June 1, 1992 A. N. It is stated that the petitioner requested the third respondent to issue suitable directions for settlement of his terminal benefits. It is stated in the affidavit that the petitioner has already been informed that he is deemed to have retired from June 1, 1992 A. N. in terms of F. R. 56 and factually from June 2, 1992 he stopped attending office and requested the first respondent to settle his terminal benefits. While the matter stood thus, the impugned memorandum dated July 6, 1992 was issued to the petitioner. It is alleged in the affidavit that in terms of F. R. and statutory rules which govern the Madras City Municipal Corporation Employees, he is deemed to have been retired on June 1, 1992 as no communication has been sent by any of the respondents before June 1, 1992 rejecting his request or for any other reason as provided in the Fundamental Rules. The petitioner alleges that as he is having health problem apart from family problems submitted his resignation and sought for voluntary retirement by issuing three months' notice in terms of Fundamental Rules and in the absence if any communication, the petitioner is deemed to have retired on June 1, 1992 A. N. It is stated that the impugned communication dated July 2, 1992 of the second respondent has not been furnished to the petitioner and it has been addressed to the first respondent. As such the petitioner is challenging the communication dated July 6, 1992.

(3.) THE petitioner alleges in the affidavit that the impugned proceedings of the respondents is illegal and arbitrary. It is also alleged that the first respondent had received the notice under F. R. 56 (d) (i) intimating the petitioner that the notice period is to be reckoned from March 2, 1992 and accepted that the notice issued by the petitioner is in conformity with Rule 56 (d) (i) and also forwarded the same to the second respondent. It is alleged that the second respondent kept the application pending till July 2, 1992 and hence the respondent are estopped from passing the impugned orders when, in terms of F. R. 56 (d) (i) on the expiry of 3 months' period, it is not open after the expiry of 3 months to raise untenable objection. It is alleged that the actions of the respondents are arbitrary and vitiated by legal malice. It is also alleged that the petitioner was appointed by the orders of the Commissioner, in the cadre of Revenue Officer, Class IA post and which appointment has been ratified by the second respondent on a later date and as such the Commissioner, Corporation of Madras, is the appropriate authority with respect to the petitioner as well as to be appointed to the post of Revenue Officer to whom the notice under F. R. 56 has to be sent. It is also alleged that the entire Corporation establishment including Class 1a officers is under the control of the Commissioner and merely because the State Government is the confirming authority, it cannot be assumed that the State Government is the appointing authority in respect of Class 1a posts. As such the petitioner alleges that the notice of voluntary retirement has been duly given by the petitioner addressed to the appropriate authority in terms of F. R. 56 (d) (i) on giving three months' notice in writing to the appropriate authority, the respondents have no authority to deny or stop the voluntary retirement except in cases which fall under Explanation to F. R. 56 (d) (i) for which specific permission of the appropriate authority (sic) may withhold the permission sought for. It is alleged that the impugned proceedings are vitiated by legal malice and it offends Art. 14 of the Constitution. At any rate, it is alleged, after the expiry of the notice period on or before June 2, 1992 the petitioner ceased to be Revenue Officer of Madras Corporation and the respondents 1 and 2 have neither the authority nor the jurisdiction to pass the impugned order as the notice of voluntary retirement has taken effect from June 1, 1992 and the petitioner ceased to attend office on June 2, 1992. The petitioner alleges that in view of the impugned proceedings, the respondents have not taken any action to settle the terminal benefits to the petitioner.