Judgment:
P.R. Borkar, J.
1. This is a petition filed under Articles 226 and 227 of the Constitution of India by an employee of Judicial Department working in Nanded District whose application dated 5-9-2000 for withdrawal of notice for voluntary retirement with effect from 5-11-2000 was rejected by the learned District Judge, Nanded by the order dated 30-10-2000.
2. It is no more disputed that the petitioner was working on a ministerial staff of newly established Court at Loha as Assistant Superintendent. On 17-7-2000 the petitioner after rendering 21 years service gave notice for voluntary retirement under Rule 66(1) of the Maharashtra Civil Services (Pension) Rules, 1982 [hereinafter referred to as, 'the M.C.S. (Pension) Rules'] intending to retire with effect from 5-11-2000. The learned District Judge, Nanded accepted the notice on 20-7-2000 and directed submission of pension papers. Thereafter the petitioner gave an application for permission to withdraw his notice for voluntary retirement vide Outward No. 862/2000 dated 5-9-2000, however, the same came to be refused by order dated 30-10-2000.
2A. By this writ petition, the petitioner prayed that the order of the learned District Judge, Nanded bearing No. 14535/2000 dated 2-11-2000 by which order dated 30-10-2000 passed by the learned District Judge, Nanded was communicated to the petitioner may be set aside, and the petitioner may be allowed to continue in the service with all consequential benefits.
3. The respondents filed their rejoinder affidavit and stated that the order passed by the learned District Judge is legal and proper. The petitioner has not pursued the remedy of administrative appeal. The petitioner has directly filed the writ petition without availing alternate efficacious remedy of filing an administrative appeal. The petitioner never urged personal hearing in the context of his request for withdrawal of the notice for voluntary retirement. Elaborate administrative order is passed giving reasons for refusal to reject the prayer for withdrawal. So, for valid reasons, the application for withdrawal of notice for voluntary retirement was rejected and as such there is no merit in the writ petition. It is also alleged that the petitioner was habitually availing leave and had strained relations with the members of the staff, the advocates and the police. The learned District Judge has scanned the entire service record of the incumbent in order to assess his utility to the Department for invoking discretion in his favour under Rule 66(5) of the M.C.S. (Pension) Rules. A special report from the Presiding Officer, Civil Court, Loha was also called for. So, the discretion was properly and legally used and, therefore, the writ petition deserves to be dismissed.
4. Both sides cited several authorities and it is desirable to consider them at the outset.
The first case is Balram Gupta v. Union of India : (1987)IILLJ541SC . It is laid down in para 8:.The appropriate rule Sub-rule (4) of Rule 48-A of the Pension Rules as set out hereinbefore enjoins that a Government servant shall be precluded from withdrawing his notice except with the specific approval of such authority. The proviso stipulates that the request for withdrawal shall be made before the intended date of his retirement....
In the present case, Section 66(5) of the M.C.S. Pension Rules is pari materia and it runs as follows:
66. Retirement on completion of 20 years qualifying service
(5) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority:Provided that the request for withdrawal shall be made before the intended date of his retirement.
In para 9 in the case of Balram Gupta (supra) it is observed as follows:.What is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the Government from withholding the withdrawal. In this ' respect the Government affidavit certainly lacks candour. In appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state those reasons. There may be hundred and one situations where a situation or opportunity like this may be used by the Government to ease out a disgruntled or reluctant or troublesome employee....
In para 10 of the abovesaid case, it is laid down that:.It was further reiterated that in the absence of a legal, contractual or constitutional bar, as intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective i.e. before it effects termination of the tenure of the office/post, or employment. This general rule equally applies to Government servants and constitutional functionaries....
In the case of Balram Gupta (supra) in para 11 it is further laid down that there should not be arbitrariness and hostile discrimination in Government's approach to its employees. It is also observed that the approving authority who is the statutory authority must act reasonably and rationally. In the case before Their Lordships, the appellant had stated that on the persistence and personal requests of the staff members the appellant had dropped the idea of seeking voluntary retirement and it was observed that it can be accepted as a good and valid reason. It is further observed that in the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements to make other employee available for his job, that would be another matter. At the end of para 13 the Court observed that the Court cannot but condemn circuitous ways 'to ease out' uncomfortable employees. As a model employer the Government must conduct itself with high probity and candour with its employees.
5. In the case of Shambhu Murari Sinha v. Project and Development India Ltd. and Anr. : (2002)IILLJ430SC , the employee had applied for voluntary retirement which was accepted by the management, but before the employee was actually relieved from service, he withdrew his option for voluntary retirement by two letters. It is observed that in absence of a legal, contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resigner.
6. In the case of J.N. Srivastava v. Union of India and Anr. : (1999)ILLJ546SC , the request for cancellation of voluntary retirement was rejected by the authority concerned and as such the retirement came into effect on 31-1-1990 and the appellant had no choice but to give up the charge of the post to avoid unnecessary complications. It was held that he was entitled to be reinstated with all incidental benefits.
7. The other cases cited, in which some principles are laid down, are:
(1) Punjab and Sind Bank and Ors. v. Mohinder Pal Singh and Ors. : (2006)ILLJ340SC . (2) Tulshiram Natthuji Salmakhe v. General Manager, Maharashtra State Co-operative Agriculture and Rural Development Bank Ltd., Mumbai : (2004)IILLJ218Bom .
8. On the other hand, the respondents wanted to rely on Arun s/o Shankarrao Deshpande v. The District and Sessions Judge, Akola and Anr. : (1993)95BOMLR909 . In that case, after referring to the case of Balram Gupta (supra) and other cases, following observations are made in para 10:
It is true that normally when a period of notice is provided for tendering resignation or for voluntary retirement, there is no necessity of its acceptance by the appointing authority. Similarly, there is no restriction normally upon the right of the Government servant or any employee to withdraw his resignation or notice of voluntary retirement before it becomes effective. However, looking to its object, the nature of its object, the nature of the benefit which is sought to be conferred under Rule 66 of the Pension Rules, and with a view to prevent its improper use or abuse by sometimes putting the Government into difficulty and inconvenient situation by withdrawal of the notice of retirement at one's sweet will such as when acting on the notice of voluntary retirement some other administrative arrangement is made by the Government, Rule 66(5) is enacted which is thus in fact a salutary rule which would further the object of conferring the benefit of retirement in genuine cases of Government servants who want to lay down their office after long service of 20 years. The said Rule 66(5) cannot thus be said to be arbitrary, discriminatory and violative of Article 14 of the Constitution.
In the case before Their Lordships, as para 18 shows, the petitioner was working as a Stenographer in the office of the District Government Pleader. He was not ready to work in the Court where he was transferred on the ground of his prolonged illness and had made applications for leave on the ground of prolonged illness several times. According to him, in his leave application he had stated that he was a patient of Hypertension and that he was not able to cope up with the work of stenography for which reason he had claimed posting on a clerical table. The learned District Judge was of the view that it was not possible to give posting to the petitioner on clerical table by giving him higher pay of stenographer. It was pointed out that his suggestion to the petitioner to voluntarily accept demotion to the clerical post was not acceptable to him. In these circumstances, there was refusal to allow withdrawal of notice for voluntary retirement. The reason was proper. The petitioner on his own application was incapable of doing duties due to his ill-health.
9. As we have referred to earlier, the Supreme Court in the case of Balram Gupta (supra) has laid down that there may be many circumstances where a situation or opportunity like this may be used by the Government to ease out a disgruntled or troublesome employee. It has condemned such circuitous ways to ease out uncomfortable employees. Reference to this is also made in para 13 in the case of Arun Deshpande (supra).
10. In the present case, the order dated 30-10-2000 passed by the learned District Judge, Nanded, whereby the permission to withdraw the notice was refused is produced as Annexure 'D' to the reply affidavit filed on behalf of the respondent Nos. 1 and 2. In para 7 of the order, it is observed that the petitioner has stated that he had to discharge some family responsibilities and, therefore, he wanted to withdraw the notice. But it is observed that vague reasons were quoted in the application and family responsibilities were not explained. Consequently, in para 8, it is observed by the learned District Judge that the incumbent being law graduate judicial employee, had hopes of being allowed to appear for the competitive examination to be held in the recruitment for the posts of Civil Judge, Junior Division and Judicial Magistrate, First Class. It is observed that even by permitting withdrawal of the notice of voluntary retirement the petitioner would not be in a position to derive benefits on the ground of availing opportunity to appear for competitive test for the post of Civil Judge, Junior Division and Judicial Magistrate, First Class. There is no concrete proof of incorporation of amendment as alleged by the incumbent in the recruitment rules.
In para 9 of the order dated 30-10-2000 passed by the learned District Judge, Nanded, following circumstances were stated as reasons for refusal.
A) Shri C.B. Phatale has a tendency of availing frequent leave.
B) He has strained relations with the members of Bar and Litigants. His relations with the members of staff are also non-co-operative. His behaviour is arrogant. The police also have complained orally that Shri C.B. Phatale is not co-operative.
C) Shri C.B. Phatale was previously sidetracked, for a period of six months for the purpose of promotion as per order of the then District Judge, Nanded dated 7-11-1989.
D) Shri C.B. Phatale never worked for a period of five years continuously on one establishment, except exceptional circumstance, he was transferred generally in the interest of administration.
E) Shri C.B. Phatale has a habit of making complaints with useless allegations on administration and Presiding Officer. The Honourable High Court was pleased to caution him for submission of complaints directly to the High Court.
F) He was also warned for avoidance of work and insubordination in the year 1982.
G) On the basis of unanimous complaint, during the course of enquiry it was prima facie established that Shri C.B. Phatale had tried to gain medical reimbursement wrongfully by adding items in the list after the counter-signature of Civil Surgeon in the year 1997. Despite of report from the Civil Surgeon, the then District Judge was pleased to close the matter without taking any action on humanitarian ground after tendering unconditional apology by Shri C.B. Phatale.
H) Annual Confidential Reports of Shri C.B. Phatale are also not so satisfactory consistently.
It is further observed by the learned District Judge, Nanded that the petitioner has no utility to the department on the ground that he is a troublesome employee having tendency to cause inconvenience to the administration. He does not have good image in the eyes of members of the Bar, the Staff and the Litigants. In order to avoid further complications, an additional hand was provided to Loha Court by keeping him away from the contact with the members of Bar and public litigants. It is further observed in para 11 that by allowing such troublesome, uncomfortable person to withdraw his notice of voluntary retirement will be nothing but an invitation to the administrative inconvenience, in not only smooth functioning of the office but installation of discipline among ministerial staff, (sic)
11. It is vehemently argued that in this case the discretion is used by the learned District Judge for easing out troublesome or uncomfortable employee. The Supreme Court has held in the case of Balram Gupta that the Court cannot but condemn circuitous ways to ease out uncomfortable employees. So, considerations for compulsory retirement would not be relevant, unless it is a case in which an employee who was under active consideration for compulsory retirement, had offered to voluntarily retire; or that the employee was likely to be put under suspension or any departmental inquiry for serious misconduct was about to start or already started against such employee and the employee had given notice for voluntary retirement and on that ground proposed action was dropped.
12. In the case before Their Lordships in Arun Deshpande (supra), the employee was unable to perform his duties due to his ill-health and Hypertension and that ground on which he wanted the retirement had not changed.
13. In the present case, the report of the Civil Judge, Loha produced as Annexure 'B' to the reply affidavit does show that for short periods of 3 days, 2 days or even one day in the year 2000 the applicant had proceeded on leave on about 8 to 9 times. There was also one occasion of availing earned leave for 5 days and summer vacation was availed during the year 2000 which is relevant for us. Similarly, he had proceeded on one half days casual leave in the year 2000 on 12 times. He had availed one day leave twice. So, there is tendency to avail frequent leave. It is also stated that his relations with the members of the Bar and the Litigants and even other members of the Staff were not good. The police also complained against him for not being co-operative. The instances of the years 1989 or 1982 can be ignored as they were far away in time. So far as habit of making complaints with useless allegations on the administrative staff and the Presiding Officer are concerned, those are vague and cannot be a ground for refusing to withdraw the notice of voluntary retirement. So far as incident of the year 1997 is concerned, the same could have been reason for a disciplinary action, but it was felt proper to accept mere unconditional apology by the petitioner.
14. It is also true that the annual confidential reports produced on record with reply affidavits clearly show that the petitioner was not doing his work wholeheartedly. He was a shirker. There was tendency to take frequent leave and thus avoid work. No doubt, those circumstances can be taken into consideration by us while considering the question of backwages, but it cannot be said that those circumstances could be a ground for refusal to grant permission for withdrawal of the notice for voluntary retirement. So, we are of the considered view that this is a fit case in which interference by this Court in the writ jurisdiction is called for, by quashing the order dated 30-10-2000 passed by the learned District Judge, Nanded and directing that the petitioner be allowed to join his post, treating him to have continued in the job.
15. So far as backwages are concerned, we may refer to the case of Kendriya Vidyalaya Sangathan and Anr. v. S.C. Sharma : (2005)IILLJ153SC . In that case, it is laid down that the initial burden is on the employee to show that he was not gainfully employed and thereafter the employer can bring on record the material to rebut his claim. In the instant case, the petitioner has not pleaded or placed on record any material in that regard. It is worth noting that the petitioner has passed LL.B. examination as per his own admissions. After the date of retirement i.e. 5-11-2000, he did not file the writ petition immediately. He filed the writ petition on 4-5-2001 as can be seen from the date of affidavit. Moreover, he did not remove the office objections till 31-8-2001 and thereafter the petition came up before the Court first time on 27-11-2002. Thereafter also we do not find much urgency on the part of the petitioner for early hearing of the petition. In fact, in the order dated 2-12-2002, this Court had showed willingness to decide the matter finally at the admission stage itself, but it does not appear that the petitioner had taken advantage of such an observation. The rejoinder to the reply of the respondents was filed on 8-3-2004. So, we are of the opinion that the petitioner must have been gainfully employed, perhaps he might have obtained Sanad for Advocacy. In any case, the burden is on him and it is also very clear that he did not approach the Court immediately after the orders of termination, but took his own time in filing the petition and also removing the objections.
16. In the case of M.L. Binjolkar v. State of M.P. : (2005)IIILLJ524SC , it is laid down that earlier view was that whenever there is interference with the order of termination or retirement, full backwages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view. That being so, the Supreme Court did not think it appropriate to interfere with the quantum of 50 per cent fixed by the High Court in that case. Considering the frequent tendency of proceeding on leave, to avoid work and the annual confidential reports, the leisureliness on the part of the petitioner to prosecute this case and the act of not approaching the Court immediately after the order of the learned District Judge, lead us to hold that in this case the ends of justice would be served by directing that the petitioner will be entitled to 50 per cent backwages from 5-11-2000.
17. In view of above, the writ petition is allowed. The order of refusal to withdraw the notice of retirement passed by the District Judge on 30-10-2000, communicated to the petitioner by letter dated 2-11-2000 is hereby quashed and set aside. The learned District Judge, Nanded is directed to reinstate the petitioner as the Assistant Superintendent with continuity of service. However, the petitioner will be entitled to 50 per cent backwages from 5-11-2000. While awarding the backwages, the learned District Judge, Nanded shall take into consideration the benefits of retirement received by the petitioner, if any, such as gratuity, leave encashment, pension, etc. Rule made absolute accordingly. No. costs.