High Court
Case Details
WP(C) 2880/2012 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN
Legal Reasoning
Heard Mr. R. De, learned counsel for the petitioner and Mr. J. I. Borbhuiya, lea rned Standing Counsel, Public Health Engineering Department, Government of Assam for the respondents.
Decision
By way of this petition under Article 226 of the Constitution of India, petition er seeks a direction to the respondents to accept his voluntary retirement from service by regularizing the period of absence. Case of the petitioner is that he was serving as Assistant Engineer in the Publi c Health Engineering Department (PHE). Because of various reasons, which may not be necessary to be gone into in detail in the present proceeding, petitioner su bmitted resignation letter before the authority i.e. the Executive Engineer on 2 2.05.2008. No decision was taken thereon. Petitioner thereafter submitted anothe r letter dated 08.03.2010 withdrawing his resignation letter dated 22.05.2008. According to the petitioner, he had withdrawn the resignation letter to enable h im to apply for voluntary retirement on completion of the qualifying service of 20 years. However, petitioner was served with a letter dated 21.06.2010 of the G overnment of Assam in the PHE Department accepting his resignation from service w.e.f. 14.06.2010. The said letter further indicated that petitioner’s subsequen t letter withdrawing his resignation was not considered by the Government. At that stage, petitioner moved this Court by filing WP(C) No. 4098/2010. In the course of hearing of the said writ petition, petitioner expressed his wil lingness to go on voluntary retirement. As a matter of fact, the Court found fro m the record that the petitioner had applied for voluntary retirement but instea d of accepting the same, resignation from service was accepted. WP(C) No. 4098/2010 was disposed of by order dated 03.03.2011 directing the resp ondents to consider the case of the petitioner for acceptance of voluntary retir ement on completion of qualifying service with the clarification that petitioner would not be entitled to any salary for the period of his absence. The entire e xercise was directed to be carried out within a period of 3 (three) months. Instead of considering the case of the petitioner as was directed by this Court, the Department sought for formal application from the petitioner seeking extrao rdinary leave for the period from 17.03.2008 to 14.06.2010 along with appropriat e medical certificate to regularize his absence for the said period. According to the petitioner, he submitted formal application on 28.06.2011 for e xtraordinary leave before the respondent No. 5. However, the authorities insiste d on furnishing medical certificates in support of the leave period. Aggrieved by the action of the respondents in not granting voluntary retirement, petitioner has filed the present writ petition seeking the relief as indicated above. Respondents have filed counter affidavit. Stand taken in the said affidavit is t hat petitioner was very irregular in his duties and displayed lack of discipline . Following the decision of this Court, the Department had processed the matter and had sent it to the office of the Accountant General. As per the Leave Rules, 1934, extraordinary leave can be granted on medical ground but the petitioner d id not submit medical documents. Petitioner was unauthorizedly absent from duty for 762 days which could not be granted as per the Leave Rules, 1934. However, D epartment had sought for the views of the Legal Remembrancer as well as the Acco untant General. In his reply affidavit, petitioner has stated that since the matter of his resig nation from service was kept pending by the Department, the petitioner could not be treated as being unauthorizedly absent for such period w.e.f. 22.05.2008 to 21.06.2010. Question of submitting medical certificates for the aforesaid period does not arise. Joint Legal Remembrancer, Government of Assam on the approval o f the Legal Remembrancer, Assam had opined that the petitioner may be allowed to go on voluntary retirement w.e.f. 19.06.2010 on completion of 20 years of quali fying service. Office of the Accountant General had also submitted leave admissi bility report which shows that petitioner had 762 days of admissible leave to hi s credit. Mr. R. De, learned counsel for the petitioner submits that in view of the judgm ent of this Court and the views expressed by the Legal Remembrancer, there can b e no justification on the part of the respondents in not granting voluntary reti rement to the petitioner by regularizing his period of absence. He, therefore, p rays for issuance of necessary direction by the Court. Mr. Borbhuiya, learned Standing Counsel on the other hand submits that though th e Department is not averse to the grant of voluntary retirement to the petitione r, the problem confronting the Department is the long absence of the petitioner which could not be covered by the Leave Rules, 1934. He, however, fairly submits that looking into the facts and circumstances of the case, Court may consider t he matter and pass appropriate order as may be deemed fit and proper. Learned Standing Counsel has also produced the relevant record for perusal of t he Court. As already noticed above, petitioner had earlier approached this Court against a cceptance of his resignation wherein question of his voluntary retirement was co nsidered. On perusal of the record, the Court found that the case of the petitio ner was processed and initiated for voluntary retirement but abruptly the order dated 21.06.2010 was passed accepting the resignation of the petitioner w.e.f. 1 4.06.2010, on which date the petitioner fell short of 5 days in completing 20 ye ars, which is the qualifying service for availing voluntary retirement. The Cour t took the view that if the petitioner had not completed 20 years of qualifying service, he could have been informed and his voluntary retirement could have bee n accepted on completion of 20 years of qualifying service w.e.f. 19.06.2010. Af ter due consideration, this Court passed the following order:- (cid:28) Apart from the above, since the very offer made by the petitioner was for volu ntary retirement and the process was also initiated for acceptance of such volun tary retirement, later on the respondents could not have converted the same as a n offer to resign from service. In the fitness of the case, it will be appropria te for the respondents to consider the case of the petitioner for acceptance of voluntary retirement on completion of qualifying service. It is made clear that the petitioner will not be entitled to any salary for the period of his absence. The matter shall now go back to the authority for reconsideration of the matter relating to offer of voluntary retirement and acceptance thereof in acco rdance with the rules. It is also made clear that the impugned order will not s tand in the way of the respondents to give the fresh consideration consistently with the observations made above. Let the entire exercise be carried out as expeditiously as possible, preferably within 3 (three) months from the date of receipt of certified copy of this order. (cid:29) Having noticed the order of this Court, the views of the Joint Legal Remembrance r as approved by the Legal Remembrancer, which has been placed on record, may no w be looked into. Relevant portion of the views of the Joint Legal Remembrancer dated 02.01.2013 is as under:- (cid:28)It appears that the petitioner was on earned leave w.e.f. 17.01.2008 to 16.03.2 008 and he had submitted his resignation letter on 22.05.2008 (Sl.44c linked fil e No. PHED 390/2010) and subsequently withdrawn his resignation on 08.03.2010 (S l. 48c linked file No. PHED 390/2010) but the authorities concerned vide letter dated 21.06.2010 accepted the resignation w.e.f. 14.06.2010 and also inform the petitioner that his letter of withdrawal of resignation was not considered by th e Govt. (at Sl. 51c linked file). The resignation tendered by the petitioner by his letter dated 22.05.2008 has be en accepted on 21.06.2010 after expiry of 2 years and 1 month. The relationship between the petitioner and the employer continued to subsist till the impugned o rder dated 21.06.2010 was passed. Since the matter was kept pending with the dep artment the petitioner is not liable to be treated as unauthorized absent w.e.f. 22.05.2008 to 21.06.2010. As such he shall be deemed to have continued in servi ce. Accordingly, in terms of the order of the Hon’ble High Court the department may allow the petitioner to go on voluntary retirement w.e.f. 19.06.2010 from the da te on completion of 20 years of qualifying service. Admittedly, from 17.03.2008 till 21.06.2010 the petitioner was absent from servi ce. The department may regularize the said period of his absence to any leave at his credit to cover up this period. (cid:29) A perusal of the record would show that the Department has also veered around th e view that the period of absence of the petitioner from service should be regul arized as per law with no financial benefit for the said period. In that view o f the matter, there is no scope for any further controversy regarding the claim of the petitioner. Question of payment of salary for the period of absence does not arise as because this Court in the previous around of litigation had made it clear that the petitioner will not be entitled to any salary for the period of his absence. From the record, it also appears that the petitioner has 762 days o f admissible leave to his credit. Therefore, in view of above, respondents are directed to grant voluntary retirem ent to the petitioner on and from 19.06.2010 by regularizing his absence from se rvice for the period from 17.03.2008 till 19.06.2010 for which period petitioner would not be entitled to salary. However, the said period would be treated as p art of the qualifying service for voluntary retirement and also for other admiss ible dues. Writ petition is allowed. There shall however be no order as to cost. Record produced by the learned Standing counsel is returned back.