DINESHWAR JHA v. CENTRAL BANK OF INDIA

HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE JUSTICE SMT. T. MEENA KUMARI)

18. 29.01.2013 Heard the parties.

2. The appellant is an employee of Central Bank of India and working as Senior Brach Manager at Mumbai. He applied for voluntary retirement as per Regulation 19.7 of (Officers’) Service Regulation, 1979, giving three months 1 Patna High Court LPA No.1096 of 2009 (18) dt.29-01-2013 notice to the Bank on his intention to voluntary retirement on the ground of ill-health on 27.9.2008. The regional office forwarded the said application to the Zonal Office, Patna but the fact remains that the appellant did not receive any communication within the period of 3 months, hence he was allowed to continue to do work in the Bank up to 14.02.2009 till his application for voluntary retirement was approved by the Central Government on

3.02.2009 and the zonal office has been informed about such acceptance. Although on 14.2.2009 the appellant was continued to work but however the voluntary retirement benefits and other benefits have been paid to him which was accepted without any protest after period of 6 months.

3. The appellant has chosen to file the writ petition i.e. C.W.J.C. No. 8485 of 2009 challenging the order of acceptance of voluntary retirement but the learned Single Judge has dismissed the said writ application on the ground that the appellant cannot ask for recalling the application for voluntary retirement as relationship have come to an end. The learned Single Judge while disposing of the writ petition has observed that the Bank would consider enough providing financial assistance for his medical treatment which is the ground on which he has sought voluntary retirement, if it is permissible. It has been argued at length by learned counsel Mr. Santosh 2 Patna High Court LPA No.1096 of 2009 (18) dt.29-01-2013 Kumar that there is no provision under such Regulation to accept the application for voluntary retirement after three months is over and it is obligatory on the part of the Bank to continue the employee on the same position as he was working prior to his issuance of notice and in absence of any Regulation to extend the period of acceptance of the voluntary retirement, order of the Bank would be an invalid order. It has also been contended that nothing prevented to the Bank to accept the notice within a period of 3 months, the appellant itself was continued after expiry of 3 months in the month of February, 2009 when the notice has been accepted.

4. Per contra, learned counsel appearing on behalf of the petitioner has contended that once the notice has been given indicating his intention to retire voluntarily, the period fix for such issuance of the notice on the part of the employee is 3 months under Regulation 19.1 (1) and the competent authority has got power to reduce such period of 3 months, however there is no period prescribed under the Regulations to accept such notice. It is clear discretion of the Bank to accept the notice beyond the period of 3 months otherwise the Regulation under clause 1 of 19.7 would become redundant and the purpose of the Regulation under Clause A of 19.7 would be defeated.

5. We also had an occasion to go through the order 3 Patna High Court LPA No.1096 of 2009 (18) dt.29-01-2013 passed by the learned Single Judge as well as Central Bank of India (Officers’) Service Regulations, 1979 which read as follows:

19.7 RULES REGARDING VOLUNTARY RETIREMENT OF OFFICERS UNDER PROVISO TO SUB REGULATION (1) OF REGULATION 19: (a) An officer employee of the Bank may be permitted to retire voluntarily from the service of the Bank at any time if he/she has completed 30 years of service as an officer or has attained the age of 55 years, whichever happens earlier, after giving the Bank 3 months’ notice in writing. (b) The Competent Authority may reduce the period of 3 months notice or remit the requirement of notice entirely at his discretion. (c) The officer may withdraw the notice of voluntary retirement subsequently only with the prior approval of the Competent Authority, provided the request for such withdrawal is made before the expiry of the notice period. Subject to the rules laid down herein an officer employee who has served on the bank a notice of voluntary retirement shall retire on the last day of the month in which the notice period expires unless the Competent Authority issues an order to the contrary before the expiry of the period of notice.

6. It further contended official/employee who receives notice for voluntary 4 Patna High Court LPA No.1096 of 2009 (18) dt.29-01-2013 retirement shall retire on the last day of the month.

7. In this case there is no material placed either by the appellant or by the Bank which would go to shows that the employee who serves the notice of voluntary retirement on the Bank has to retire on the last day of the month. In this case there is no material available before this Court to the effect that the Competent Authority issued contrary order before expiry of the period of notice which would go to show that obligation is caused upon the employee to retire on the last day of the month in which the notice period has expired. Accordingly, the appellant has to retire on 31.11.2008 but for the reasons best known to the employee he was also working up to the period of February,

2009. It is a fact that the Competent Authority has not issued any contrary order before expiry of the period of notice, but however in absence of any Regulation to curtail the powers of Competent Authority to accept the voluntary retirement beyond the period of 3 months, it has to be construed that the Competent Authority has got ample power to accept the voluntary retirement beyond the period of 3 months.

8. Under the above circumstances, in absence of any limitation on the part of Competent Authority to accept the voluntary retirement it would go without saying that the clause (c) of 19.7 would become operative and the 5 Patna High Court LPA No.1096 of 2009 (18) dt.29-01-2013 employee has to retire on the last day of the month in which the notice period expires.

9. We are not in agreement with the argument advanced by the learned counsel for the appellant that the conduct of the Competent Authority in accepting the voluntary retirement notice beyond the period of 3 months become illegal and cannot be sustained under law. The obligation has to be fulfilled by the employee by issuing three months notice.

10. But, however, it is stated supra that in absence of any Regulation contrary to the power of Competent Authority to accept the voluntary retirement notice, we are of the opinion that the action of the Bank in accepting the notice of voluntary retirement beyond three months cannot said to be against the norms of the Bank and the action settled in such proceedings cannot be set aside in the writ petition. Moreso, as the employee has accepted the benefits of voluntary retirement without any protest, therefore, we do not want to disturb the finding of the learned Single Judge. We also made it clear that any other benefits which remain unpaid shall be paid to the employee within a period of three months from the date of receipt / production of a copy of this order. We also make it clear that if any claim of the appellant is unpaid the Bank must pay the same within a period of three months from the date 6 Patna High Court LPA No.1096 of 2009 (18) dt.29-01-2013 of receipt of such claim.

11. So as to medical benefits are concerned the same shall be extended to the appellant as per Rules directed by the learned Single Judge.

12. With the above observations, this appeal is disposed of. (T. Meena Kumari, J. ) Fahad/Pravin. ( Vikash Jain, J. ) 7