Khaja MasiuddIn Vs. Andhra Pradesh State Road Transport Corporation and Others - Court Judgment

Excerpt:
service - retirement - petitioner applied for voluntary retirement on 10.06.1998 - one month notice given - letter taken back on 28.06.1998 - earlier application accepted by respondents on 04.07.1998 - letter of withdrawal not taken into account - such acceptance of retirement invalid - respondents directed to take petitioner back into service. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - therefore, the date of acceptance, in any view shall have to be treated as 4-7-1998, and as such the said notification was well within the period limit stipulated i. 11. in my view the responsible officers like that of the office of the regional manager, ranga reddy region are not expected to keep silent without taking any immediate action on such applications concerning service conditions of the employees. in my view, knowledge of higher authority should be treated as knowledge ofits subordinates, particularly, when there is no indication as to who is the competent authority to receive notice of voluntary retirement and as to who is the authority to accept, and therefore, the employee is well within his right to withdraw his notice any lime within the said period of 30 days and the relationship of master and servant between the respondent-corporation and the petitioner does not cease. it is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus penitentiae to withdraw the proposal for voluntary retirement. ..in pith and substance, reading of the letter of offer of resignation and acceptance of the same in its totality leaves us with no doubt that the relationship of master and servant is being brought to an end only with effect from 2 january, 1987 and it would be well within the right of the employee to withdraw the resignation and continue the relationship of master and servant before the final end is brought to the said relationship'.16. therefore, in the light of the law laid down in the judgments referred to above, and in view of the foregoing discussion, the letter of withdrawal from voluntary retirement dated 28-6-1998 is held to be valid, and consequently, the proceedings of the fifth respondent in p1/ 856(1)/98-vkb, dated 4-7-1998 as confirmed by the fourth and third respondents in proceedings no.order1. this writ petition is filed seeking a writ of mandamus declaring the orders passed by the fifth respondent dated 4-7-1998, as confirmed by respondents 4 and 3 by their orders dated 18-8-1998 and 28-10-1998 respectively, accepting the voluntary retirement of the petitioner after receipt of withdrawal application, as illegal, unjust and contrary to law.2. the facts of the case are that the petitioner has joined the services of the respondent-corporation on 23-9-1964 and served in different capacities, and ultimately promoted as traffic inspector grade-i. while so, owing to some domestic problems, he submitted an application for voluntary retirement on 10-6-1998 giving one month notice. subsequently, he changed his mind and submitted an application on 28-6-1998 withdrawing his application for voluntary retirement. the said application of withdrawal addressed to the deputy chief traffic manager, ranga reddy region, was acknowledged by the office of the regional manger, ranga reddy region on 3-7-1998. without considering the said application of withdrawal dated 28-6-1998, the fifth respondent passed orders on 4-7-1998 notifying the voluntary retirement of the petitioner.3. the said proceedings of the fifth respondent dated 4-7-1998 shows that thecompetent authority has accepted the application for voluntary retirement of the petitioner with effect from 11-7-1998. aggrieved by the said orders, the petitioner preferred an appeal before the third respondent, and the same was also rejected on the ground that the corporation has not received any application for withdrawal of voluntary retirement earlier sought. against the said proceedings, a further appeal was preferred to the second respondent on 16-11-1998 and the same is still pending.4. in the counter-affidavit it was contended that though the application for voluntary retirement was made by the petitioner on 10-6-1998, another representation dated 28-6-1998 was made to the depot manager, vikarabad, addressed to the deputy chief traffic manager, ranga reddy region on 11-7-1998 with a copy to the regional manager, ranga reddy region seeking permission to withdraw the notice of voluntary retirement. as per the rules, voluntary retirement can be withdrawn before the expiry of the period specified in the notice. it was submitted that in the instant case the petitioner submitted his request for withdrawal of notice of voluntary retirement after the expiry of period of notice, which was already accepted. the notice period had expired on 9-7-1998, whereas the petitioner made his request for withdrawal on 11-7-1998, though the request is dated 28-6-1998. therefore, the action of the depot manager, vikarabad was in order.5. in this background, the material placed before this court has to be looked into. admittedly, the petitioner has given notice of voluntary retirement on 10-6-1998. the said notice was addressed to the deputy chief traffic manager, ranga reddy region, who is the fourth respondent. it is also not in dispute that the petitioner sought withdrawal of his earlier requestfor voluntary retirement in the letter dated 28-6-1998 addressed to the same authority i.e., deputy chief traffic manager, ranga reddy region marking a copy to the regional manager, ranga reddy region and also to the depot manager, vikarabad, who are respondents 3 and 5 respectively, which was acknowledged by the regional manager, ranga reddy region.6. surprisingly it is the depot manager, the fifth respondent herein, who issued the notification dated 4-7-1998, wherein it was indicated that the competent authority has accepted his notice of voluntary retirement with effect from 11-7-1998. nowhere in the said notification of the depot manager dated 4-7-1998 nor in the counter-affidavit it was indicated as to who is the competent authority. the material placed before this court by the writ petitioner further shows that it is the depot manager, who issued the office order dated 11-7-1998 retiring the petitioner from service with effect from 11-7-1998. the said proceedings are only consequential to the orders of the depot manager, vikarabad, dated 4-7-1998. therefore, for all purposes, the notification dated 4-7-1998 issued by the first respondent-depot manager is the final order through which it was informed to the petitioner that his notice of voluntary retirement has been accepted.7. further as pointed out already, even assuming that there was acceptance by any competent authority as indicated in the order dated 4-7-1998, such acceptance in any case could be earlier to the notification issued by the depot manager dated 4-7-1998, but not subsequent. therefore, the date of acceptance, in any view shall have to be treated as 4-7-1998, and as such the said notification was well within the period limit stipulated i.e., 30 days.8. from the above, for clarity, the crucial events, date-wise, are as follows:(a) notice of voluntary retirement given by the petitioner is dated 10-6-1998; (b) letter of withdrawal addressed to the respondents by the petitioner is dated 28-6-1998; (c) the letter of withdrawal dated 28-6-1998 was acknowledged by the regional manager, ranga reddy region on3-7-1998; (d) intimation of acceptance by the depot manager, vikarabad communicated to the petitioner by notification is dated4-7-1998; (e) notice period would expire by 9-7-1998. therefore the contention of the learned counsel for the respondent-corporation that the petitioner made his application of withdrawal on 11-7-1998 is not born out from the record, nor can be accepted.9. the further contention of the learned counsel for the respondent-corporation that the record reveals that the letter of withdrawal dated 28-6-1998 was not addressed to the competent authority, and any acknowledgment even if made by the regional manager, ranga reddy region cannot be treated as a valid acknowledgment is also not sustainable because no attempt was made by the learned counsel for the respondent-corporation to identify as to who is the competent authority. in other words, this plea is available to the respondents only when they identify the competent authority. nevertheless the fact remains that notice of voluntary retirement was addressed to the deputy chief traffic manager, ranga reddy region, and the admitted letter of withdrawal was also addressed to the same authority, and if that be the case, it is the responsibility of such authority who hadreceived the letter of withdrawal to communicate to the competent authority for necessary action immediately, particularly when the responsible authorities are dealing with the service conditions of its employees, more particularly when admittedly both the offices of the deputy chief traffic manager, ranga reddy region and the regional manager, ranga reddy region are located in the same premises, and when admittedly the said letter of withdrawal was acknowledged by the office of the regional manager, ranga reddy region on 3-7-1998, and a copy of which is also marked to the depot manager, vikarabad.10. therefore, the only question that is to be examined is whether the letter of withdrawal made by the petitioner on 28-6-1998 was valid or not.11. in my view the responsible officers like that of the office of the regional manager, ranga reddy region are not expected to keep silent without taking any immediate action on such applications concerning service conditions of the employees. therefore, it is deemed that the letter dated 28-6-1998 addressed by the petitioner seeking withdrawal of the notice of voluntary retirement is validly communicated to the competent authority.12. further, it has to be noted that period specified in the notice i.e., 30 days is to be computed from the date of the application i.e., 10-6-1998 which would admittedly expire by 9-7-1998. therefore, an employee who has given notice of 30 days is entitled to withdraw at any time before the expiry of 30 days and admittedly, in the instant case a letter was communicated on 28-6-1998 itself, which was obviously at least within the knowledge of the regional manager, ranga reddy region. in my view, knowledge of higher authority should be treated as knowledge ofits subordinates, particularly, when there is no indication as to who is the competent authority to receive notice of voluntary retirement and as to who is the authority to accept, and therefore, the employee is well within his right to withdraw his notice any lime within the said period of 30 days and the relationship of master and servant between the respondent-corporation and the petitioner does not cease.13. as referred to above, only the depot manager made the notification of acceptance of the notice of voluntary retirement of the petitioner on 4-7-1998. therefore, when the prescribed time of 30 days would come to an end by 9-7-1998 or 10-7-1998, the employee has got a right to withdraw his application before the said date inasmuch as he is deemed to be in service till 10-7-1998. as already indicated above when the letter of withdrawal was acknowledged by the regional manager, appropriate steps ought to have been taken by such an authority to communicate the same to the competent authority whosoever it be.14. in srivastava j.n. v. union of india, 1999 illj (sc) 112, their lordships held thus:'it is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus penitentiae to withdraw the proposal for voluntary retirement. the said view has been taken by a bench of this court in the case of balram gupta v. union of india, 1987 ii llj 541.'the said judgment was followed by this court in writ appeal no. 1568 of 1998 dated 9-8-1999.15. a division bench of this court in general manager, bharat heavy electricals,limited, research and development, hyderabad v. k. rajita suryakanta, : (1999)iillj549ap (db), while dealing with a case of similar facts situation, held, 'mere acceptance of the resignation in the' office without being put into transmission cannot be termed to be acceptance of resignation, and mere passing of the order by itself would not terminate the relationship of master and servant as the management is always at liberty to withdraw the order passed before the same is implemented....in pith and substance, reading of the letter of offer of resignation and acceptance of the same in its totality leaves us with no doubt that the relationship of master and servant is being brought to an end only with effect from 2 january, 1987 and it would be well within the right of the employee to withdraw the resignation and continue the relationship of master and servant before the final end is brought to the said relationship'.16. therefore, in the light of the law laid down in the judgments referred to above, and in view of the foregoing discussion, the letter of withdrawal from voluntary retirement dated 28-6-1998 is held to be valid, and consequently, the proceedings of the fifth respondent in p1/ 856(1)/98-vkb, dated 4-7-1998 as confirmed by the fourth and third respondents in proceedings no.p1/856(1)/98-rr, dated 18-8-1998 and p1856(1)/98-rr, dated 28-10-1998 respectively are liable to be set aside and they are accordingly set aside.17. the writ petition is accordingly allowed, and the respondents are directed to treat the petitioner as in service from the date on which he was declared to be voluntarily retired from service. no costs.

Judgment:
ORDER

1. This writ petition is filed seeking a writ of mandamus declaring the orders passed by the fifth respondent dated 4-7-1998, as confirmed by respondents 4 and 3 by their orders dated 18-8-1998 and 28-10-1998 respectively, accepting the voluntary retirement of the petitioner after receipt of withdrawal application, as illegal, unjust and contrary to law.

2. The facts of the case are that the petitioner has joined the services of the respondent-Corporation on 23-9-1964 and served in different capacities, and ultimately promoted as Traffic Inspector Grade-I. While so, owing to some domestic problems, he submitted an application for voluntary retirement on 10-6-1998 giving one month notice. Subsequently, he changed his mind and submitted an application on 28-6-1998 withdrawing his application for voluntary retirement. The said application of withdrawal addressed to the Deputy Chief Traffic Manager, Ranga Reddy Region, was acknowledged by the Office of the Regional Manger, Ranga Reddy Region on 3-7-1998. Without considering the said application of withdrawal dated 28-6-1998, the fifth respondent passed orders on 4-7-1998 notifying the voluntary retirement of the petitioner.

3. The said proceedings of the fifth respondent dated 4-7-1998 shows that thecompetent authority has accepted the application for voluntary retirement of the petitioner with effect from 11-7-1998. Aggrieved by the said orders, the petitioner preferred an appeal before the third respondent, and the same was also rejected on the ground that the corporation has not received any application for withdrawal of voluntary retirement earlier sought. Against the said proceedings, a further appeal was preferred to the second respondent on 16-11-1998 and the same is still pending.

4. In the counter-affidavit it was contended that though the application for voluntary retirement was made by the petitioner on 10-6-1998, another representation dated 28-6-1998 was made to the Depot Manager, Vikarabad, addressed to the Deputy Chief Traffic Manager, Ranga Reddy Region on 11-7-1998 with a copy to the Regional Manager, Ranga Reddy Region seeking permission to withdraw the notice of voluntary retirement. As per the Rules, voluntary retirement can be withdrawn before the expiry of the period specified in the notice. It was submitted that in the instant case the petitioner submitted his request for withdrawal of notice of voluntary retirement after the expiry of period of notice, which was already accepted. The notice period had expired on 9-7-1998, whereas the petitioner made his request for withdrawal on 11-7-1998, though the request is dated 28-6-1998. Therefore, the action of the Depot Manager, Vikarabad was in order.

5. In this background, the material placed before this Court has to be looked into. Admittedly, the petitioner has given notice of voluntary retirement on 10-6-1998. The said notice was addressed to the Deputy Chief Traffic Manager, Ranga Reddy Region, who is the fourth respondent. It is also not in dispute that the petitioner sought withdrawal of his earlier requestfor voluntary retirement in the letter dated 28-6-1998 addressed to the same authority i.e., Deputy Chief Traffic Manager, Ranga Reddy Region marking a copy to the Regional Manager, Ranga Reddy Region and also to the Depot Manager, Vikarabad, who are respondents 3 and 5 respectively, which was acknowledged by the Regional Manager, Ranga Reddy Region.

6. Surprisingly it is the Depot Manager, the fifth respondent herein, who issued the notification dated 4-7-1998, wherein it was indicated that the Competent Authority has accepted his notice of voluntary retirement with effect from 11-7-1998. Nowhere in the said notification of the Depot Manager dated 4-7-1998 nor in the counter-affidavit it was indicated as to who is the Competent Authority. The material placed before this Court by the writ petitioner further shows that it is the Depot Manager, who issued the Office order dated 11-7-1998 retiring the petitioner from service with effect from 11-7-1998. The said proceedings are only consequential to the orders of the Depot Manager, Vikarabad, dated 4-7-1998. Therefore, for all purposes, the notification dated 4-7-1998 issued by the first respondent-Depot Manager is the final order through which it was informed to the petitioner that his notice of voluntary retirement has been accepted.

7. Further as pointed out already, even assuming that there was acceptance by any Competent Authority as indicated in the order dated 4-7-1998, such acceptance in any case could be earlier to the notification issued by the Depot Manager dated 4-7-1998, but not subsequent. Therefore, the date of acceptance, in any view shall have to be treated as 4-7-1998, and as such the said notification was well within the period limit stipulated i.e., 30 days.

8. From the above, for clarity, the crucial events, date-wise, are as follows:

(a) Notice of voluntary retirement given by the petitioner is dated 10-6-1998;

(b) Letter of withdrawal addressed to the respondents by the petitioner is dated 28-6-1998;

(c) The letter of withdrawal dated 28-6-1998 was acknowledged by the Regional Manager, Ranga Reddy Region on3-7-1998;

(d) Intimation of acceptance by the Depot Manager, Vikarabad communicated to the petitioner by notification is dated4-7-1998;

(e) Notice period would expire by 9-7-1998.

Therefore the contention of the learned Counsel for the respondent-Corporation that the petitioner made his application of withdrawal on 11-7-1998 is not born out from the record, nor can be accepted.

9. The further contention of the learned Counsel for the respondent-Corporation that the record reveals that the letter of withdrawal dated 28-6-1998 was not addressed to the Competent Authority, and any acknowledgment even if made by the Regional Manager, Ranga Reddy Region cannot be treated as a valid acknowledgment is also not sustainable because no attempt was made by the learned Counsel for the respondent-Corporation to identify as to who is the Competent Authority. In other words, this plea is available to the respondents only when they identify the Competent Authority. Nevertheless the fact remains that notice of voluntary retirement was addressed to the Deputy Chief Traffic Manager, Ranga Reddy Region, and the admitted letter of withdrawal was also addressed to the same authority, and if that be the case, it is the responsibility of such authority who hadreceived the letter of withdrawal to communicate to the Competent Authority for necessary action immediately, particularly when the responsible authorities are dealing with the service conditions of its employees, more particularly when admittedly both the Offices of the Deputy Chief Traffic Manager, Ranga Reddy Region and the Regional Manager, Ranga Reddy Region are located in the same premises, and when admittedly the said letter of withdrawal was acknowledged by the Office of the Regional Manager, Ranga Reddy Region on 3-7-1998, and a copy of which is also marked to the Depot Manager, Vikarabad.

10. Therefore, the only question that is to be examined is whether the letter of withdrawal made by the petitioner on 28-6-1998 was valid or not.

11. In my view the responsible officers like that of the Office of the Regional Manager, Ranga Reddy Region are not expected to keep silent without taking any immediate action on such applications concerning service conditions of the employees. Therefore, it is deemed that the letter dated 28-6-1998 addressed by the petitioner seeking withdrawal of the notice of voluntary retirement is validly communicated to the Competent Authority.

12. Further, it has to be noted that period specified in the notice i.e., 30 days is to be computed from the date of the application i.e., 10-6-1998 which would admittedly expire by 9-7-1998. Therefore, an employee who has given notice of 30 days is entitled to withdraw at any time before the expiry of 30 days and admittedly, in the instant case a letter was communicated on 28-6-1998 itself, which was obviously at least within the knowledge of the Regional Manager, Ranga Reddy Region. In my view, knowledge of higher authority should be treated as knowledge ofits subordinates, particularly, when there is no indication as to who is the Competent Authority to receive notice of voluntary retirement and as to who is the authority to accept, and therefore, the employee is well within his right to withdraw his notice any lime within the said period of 30 days and the relationship of master and servant between the respondent-Corporation and the petitioner does not cease.

13. As referred to above, only the Depot Manager made the notification of acceptance of the notice of voluntary retirement of the petitioner on 4-7-1998. Therefore, when the prescribed time of 30 days would come to an end by 9-7-1998 or 10-7-1998, the employee has got a right to withdraw his application before the said date inasmuch as he is deemed to be in service till 10-7-1998. As already indicated above when the letter of withdrawal was acknowledged by the Regional Manager, appropriate steps ought to have been taken by such an authority to communicate the same to the Competent Authority whosoever it be.

14. In Srivastava J.N. v. Union of India, 1999 ILLJ (SC) 112, Their Lordships held thus:

'It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus penitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India, 1987 II LLJ 541.'

The said judgment was followed by this Court in Writ Appeal No. 1568 of 1998 dated 9-8-1999.

15. A Division Bench of this Court in General Manager, Bharat Heavy Electricals,Limited, Research and Development, Hyderabad v. K. Rajita Suryakanta, : (1999)IILLJ549AP (DB), while dealing with a case of similar facts situation, held, 'mere acceptance of the resignation in the' office without being put into transmission cannot be termed to be acceptance of resignation, and mere passing of the order by itself would not terminate the relationship of master and servant as the management is always at liberty to withdraw the order passed before the same is implemented....In pith and substance, reading of the letter of offer of resignation and acceptance of the same in its totality leaves us with no doubt that the relationship of master and servant is being brought to an end only with effect from 2 January, 1987 and it would be well within the right of the employee to withdraw the resignation and continue the relationship of master and servant before the final end is brought to the said relationship'.

16. Therefore, in the light of the law laid down in the judgments referred to above, and in view of the foregoing discussion, the letter of withdrawal from voluntary retirement dated 28-6-1998 is held to be valid, and consequently, the proceedings of the fifth respondent in P1/ 856(1)/98-VKB, dated 4-7-1998 as confirmed by the fourth and third respondents in Proceedings No.P1/856(1)/98-RR, dated 18-8-1998 and P1856(1)/98-RR, dated 28-10-1998 respectively are liable to be set aside and they are accordingly set aside.

17. The writ petition is accordingly allowed, and the respondents are directed to treat the petitioner as in service from the date on which he was declared to be voluntarily retired from service. No costs.