Venkateshappa v. Union Of India

P.B Bajanthri, J.:— The petitioner has questioned the order dated 12.04.2012, communication dated 17.5.2012 and further the order dated 8.11.2002 vide Annexure-“A, B and D” respectively.

2. The petitioner joined STC BSF as a sweeper(Safai Karmachari) on 7.3.1987

3. In the month of April 2002 there was an order retiring the petitioner with effect from 30.4.2002 (on grounds of physical unfitness) with pensionary benefits as admissible under the Rules applicable on the date of retirement under the Central Civil Services (Pension) Rules, 1972. It is submitted that the same has not been given effect to and the said order is disputed by the respondents stating that no such order is existing.

4. On 7.11.2002 the petitioner submitted application for voluntary retirement vide Annexure-E. In the said application, the subject has been indicated as “regarding voluntary retirement application” and it is also stated that he intends to resign from service on the ground of domestic problem faced by him and that the said application has been filed without any pressure from any one. Based on the aforesaid request of the petitioner the respondent-Deputy Commandant (ADM) for DIG and Commandant, STC BSF Bangalore, passed an order on 8.11.2002, vide Annexure-D to the petition. While accepting the resignation of the petitioner it was stated that it would be accepted with effect from 9.11.2002 It seems the petitioner has been relieved from 9.11.2002 Thereafter the petitioner stated to have approached the respondents for withdrawal of the voluntary retirement/resignation application. However, the same was not entertained by the respondents. In this background, the petitioner requested for withdrawal of the resignation and to reinstate him or for pensionary benefits. The petitioner's request/representation dated 22.12.2011 has been rejected on 17.5.2012 vide Annexure-“B” and so also communication dated 12.4.2012 vide Annexure-“A”. The counsel for the petitioner issued a notice to the respondents to take back the petitioner to duty as the petitioner was not issued any discharge certificate nor any pay and allowances with regard to the gratuity or pay's has been granted. In this background, the petitioner has filed the above petition questioning the validity of Annexure-“A, B and D” respectively.

5. The petitioner contended as follows:-

“Because the petitioner was deprived the right to appeal against the discharge on medical grounds under the provision of BSF Rule 25(4) & (5) to cover up their own mistake the Respondent suddenly changed the ground of discharge from medical ground to voluntary retirement application. Apparently, this application of voluntary retirement was never given by the petitioner. On the other hand, after a lapse of about 10 years the Respondent No. 3 has now come out with a Paradoxical theory that the petitioner has himself put up an application for discharge. If this was so, why the petitioner was not issued any Discharge Certificate from the date of discharge. Hence, the complete story is made by the 3rd respondent to cover up their own folly and misdeeds. Hence, on this ground itself the petitioner is entitled to the relief.

It is also pertinent to mention that the petitioner has been approaching the respondent regularly to take him back into service but the respondent ignored his perpetual pleas and no heed was paid to the request of the petitioner. Even no Clearance Certificate of any type was issued to the petitioner before he was placed into discharge category which is in contradiction to the well established law and the Rules in the BSF.

It is also pertinent to mention that the Petitioner was posted out to 19 Bn BSF during 2001 and all his documents were sent to the new Battalion. But, the Petitioner was neither shown the said posting order nor he was issued with any Movement Order for joining the said Battalion. Whereas, as per the best of the information of the Petitioner only the documents were sent to 19 Bn. BSF. This fact need to be investigated under the orders of this Hon'ble Court. This fact is also written by the 3 respondent while disposing of the representation given by the petitioner and the legal notice sent by the Counsel of the petitioner. Even if it is presumed that the petitioner was sent on discharge at his own request, it is mandatory to give all clearance to the petitioner and to issue a proper Discharge Certificate. Even the pay and allowances which are entitled to the petitioner such as gratuity, leave encashment, GPF Etc. No such action was taken by the respondent. It is interesting to note that till date the Petitioner is still holding the Identity Card issued by the respondent and he is therefore in very much active roll of the BSF.

As the impugned order no mention is made with regard to the discharge on medical ground given to the petitioner and in altogether a different theory has been put on record by the Respondents. It is very strange that the complete story has lot of loopholes because the so called the discharge application dated 07.11.2002 has been written by some body in Hindu language and the petitioner has allegedly signed in Kannada. This looks very strange and malafide because the petitioner being a hardcore and die hard Kannadiga does not know Hindi language at all. Moreover, the petitioner he has affixed any signature of this kind intentionally or knowingly. The complete story is malafide, concocted, arbitrary, cooked up and capricious and needs to be set aside. More so, as stated supra, the mandatory period of 30 days was never granted in the instant case before sanctioning the discharge. This is very clear from the date which are given in the initial application and the date of order because there is one day difference(i.e, 7.11.2002 the said application was submitted and on 8.11.2002 order was passed). The petitioner relies on the annexures attached.

Further, it is submitted that as per Annexure-E the petitioner was sent on medical grounds and when it was found that the said discharge is illegal, the Respondent No. 3 started harassing the petitioner and wanted to cover up his mistakes. Therefore, after receipt of representation and legal notice he came out with a theory that the petitioner is already discharged due to his own request. Hence, this discharges is legally not valid and the petitioner should be taken into service.

Further, it is mentioned that the petitioner has about 4 more years left to earn his pension and he had not settled in life and had dependant children and ailing Parents and had very serious domestic liabilities. Hence, no prudent man will put up an application for voluntary discharge at that critical stage of his career. Therefore, the complete theory is redundant and baseless.

It is also pertinent to mention that in the year 2001 the petitioner had visited the 2nd respondent in New Delhi and had submitted his grievances to the senior most Officers and they assured him that the petitioner will be reinstated into service immediately. As per the knowledge of the petitioner a letter to this effect was written by the 2 respondent to the 3 respondent. It is now submitted that the complete record pertaining to the service of the petitioner may be asked from Respondent No. 2 and 3 under the direction of this Hon'ble Court.”

6. The respondents contended that there is delay and latches on the Part of the petitioner in questioning Annexures-“A B and D” since the petitioner's resignation has been accepted with effect from 9.11.2002 in pursuance of the petitioner's application for resignation dated 07.11.2002 It was specifically contended that on 8.11.2002 itself the resignation of the petitioner had been accepted with effect from 9.11.2002 Therefore, question of considering the grievance of the petitioner to reinstate him and also for extending any pensionary benefits is not permissible, it was further contended that withdrawal of resignation should have been made within 90 days from the date of submission of resignation. In the present case, the petitioner submitted his resignation on 7.11.2002 and his withdrawal of resignation should have been prior to 6.02.2003 the date on which 90 days completed. It was further contended that so as to seek pension the petitioner should have completed 20 years of service and as he has put in 15 years 8 months and 2 days of service, he is not entitled for any pension. It was specifically contended that Rule 48(A) of the Central Civil Service (Pension) Rules, 1972 stipulates that the employee must have completed a minimum of 20 years of service for the purpose of seeking pension.

7. It is to be noted that petitioner is an illiterate who has been appointed as a Sweeper (safai karmachari). By a reading of the facts of the case it is noticed that the petitioner suffered illness in the month of November 2002 relating to some ulcer disease. Therefore, he was compelled to submit his resignation on 7.11.2002 The contention of the respondents is that for the purpose of withdrawal of the resignation 90 days time has been stipulated. However, the respondent hurriedly accepted the resignation of the petitioner on 8.11.2002 itself and also indicated in the acceptance of the resignation order that it would be effective from 9.11.2002 The said action indicates that the respondents wanted to get rid Off this petitioner at the earliest. As stated by the respondents themselves statutory period of 90 days is available for withdrawal of the resignation by an employee. Having regard to the said provision, the respondents should have waited till 6.02.2003, the date on which statutory period of 90 days to withdraw resignation would he completed. Therefore, the impugned acceptance of resignation dated 8.11.2002 vide Annexure-D is void order. In other words, it is not in terms of statutory provision. The contention of the respondent that there is delay and latches on the Part of the petitioner in questioning order accepting his resignation. It is true that there is delay. However, at the some time, it is to be noted that void order can be questioned at any point of time. Only thing is that it has to be declared as void order by competent authority/Court. It is to be noted that the petitioner has rendered 15 years, 8 months and 2 days of service as a sweeper in the third respondent's Office without any break in service or any remark. Therefore, the respondents should not have accepted the resignation in a casual manner that too, on the same day namely on 7.11.2002 i.e The date on which the petitioner had submitted his resignation which is evident from record. Having regard to the dates, events and the fact that petitioner was in the sweeper post read with statutory period of 90 days permitted for withdrawal of resignation, the impugned order dated 7/8-11-2002 vide Annexure-D is held to be a void order. Consequently, Annexures-“A and B” are set aside.

8. The petitioner is not entitled for reinstatement having regard to his conduct that he has approached this Court belatedly. At the same time, arbitrary exercise of power by the respondents in the matter is taken note of. On an over all view of the matter in the peculiar factual matrix, while holding that the petitioner is not entitled to any other relief, it is appropriate and fair to direct the respondents to pay a sum of Rs. One Lakh to the petitioner within three months from the date of receipt of a copy of this judgment. No order as to costs.

9. Writ petition is disposed of.