BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
W.P.(MD)No.9583 of 2006
D.Renuga Devi .. Petitioner
1.The Director of Collegiate Education,
2.The Joint Director of Collegiate Education,
Madurai - 625 020.
Devanagar Arts College,
Arupukottai - 626 101.
4.The Secretary to Government of Tamil Nadu
Department of Higher Education,
Fort St. George, Chennai. .. Respondents
Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the proceedings in DAC/A44/2006-07/228 dated 15.09.2006 on the file of the 3rd Respondent and quash the same and further directing the Respondent to pay the death cum retirement benefits and family pension of the Petitioner's husband Mr.R.Ramaraj to the Petitioner.
!For Petitioner ... M/s.G.Prabhu Rajadurai
^For RR 1, 2 and 4 ... Mr.D.Sasikumar
For RR 3 ... Mr.K.M.Vijaiyakumar
The Petitioner has filed the present Writ of Certiorarified Mandamus in calling for the records pertaining to the proceedings in DAC/A44/2006-07/228 dated 15.09.2006 on the file of the 3rd Respondent and to quash the same. Further, the Petitioner has also sought the relief of issuance of direction by this Court in directing the Respondents to pay the Death cum Retirement Benefits and Family pension of the Petitioner's husband R.Ramaraj to her.
2.The Petitioner's husband R.Ramaraj was appointed as a Physical Director, Devanagar Arts College, Arupukottai (3rd Respondent) on 14.09.1970. She got married to her husband in the year 1975. Her husband served as a Physical Director in the 3rd Respondent's College without any blemish. He became mentally unstable and left the house on 12.1.1995. His whereabouts were not known for about two years. She intimated about this fact to the 3rd Respondent's College promptly. Her efforts to trace her husband were not fruitful.
3.The Principal of the 3rd Respondent's College, by a certificate dated 06.10.1997, certified that they had reported the absence of her husband to the Educational Authorities. She made an application on 03.12.1997 to the College authorities on the advise of the Principal to pay the salary and other benefits to her husband. However, her husband was brought by some persons from Ramalinga Adigalar Ashram, Vadalur in a very sick condition. Because of her husband's health condition, he could not join duty. She arranged for his hospitalisation and he recovered gradually. After his recovery, he gave a representation on 14.09.1998 to the 3rd Respondent/College praying that his absence may be treated as leave on loss of pay and permit him to join duty. His representation was forwarded to the Respondents 1 and 2/Authorities. The 3rd Respondent/College by a separate letter in October 1998 requested the 1st Respondent/Authority to consider her husband's representation sympathetically and to permit him to rejoin duty treating his absence as leave on loss of pay.
4.Also, the 2nd Respondent/Authority by virtue of the letter dated 23.8.1999 requested for necessary directions from the 1st Respondent to allow her husband to rejoin duty. But no further step was taken thereafter. As such, her husband who had recovered from his illness fully slipped into his illness once again because of the lethargic attitude of the authorities concerned.
5.According to the Petitioner, the 3rd Respondent/Secretary of the College advised her husband for voluntary retirement by paying 3 months salary in view of the notice period. Her husband paid a sum of Rs.30,000/- being the salary for 3 months since he had no other option and applied for voluntary retirement as he had already completed 25 years of service. The said application was not considered. Again her husband made a representation on 01.06.2000 with a request to consider his plea in this regard. In view of the mental strain, he became insane and vanished from the house in July 2000. Till today, inspite of their best efforts, they could not trace him. Further, his whereabouts are still unknown. Her husband's 58th birthday was on 10.05.2004 on which date he would have retired on superannuation.
6.The 3rd Respondent, after the date of superannuation of Petitioner's husband, informed the Petitioner by a letter dated 22.06.2004 to inform the whereabouts of her husband so as to take disciplinary proceedings against him. She gave a reply on 05.07.2004 to the 3rd Respondent stating that already a sum of Rs.30,000/- was paid based on the request to retire her husband voluntarily and since she could not trace her husband, the retirement benefits may be paid to her. She submitted another certificate to the 1st Respondent requesting the retirement benefits to her husband. In the said letter, she gave an undertaking that in case her husband returns and objects to any payment then she is returned the money received to the Government.
7.The 1st Respondent considering a representation and affidavit proposed to grant the pension benefits by a letter in Na.ka.No.631/D2/2006 dated 06.01.2006 requested the 4th Respondent to issue necessary Government Order to pay the retirement benefits to her. But no action was taken on the said letter.
8.The Petitioner made a detailed representation to the Respondents on 24.06.2006 to pay the retirement benefits of her husband. The 2nd Respondent, after receipt of representation, directed the 3rd Respondent to take necessary action as per rules. However, the Petitioner was shocked to note in the said letter that there was a reference that her husband was dismissed from service on 21.7.2006. Another letter was received from the 2nd Respondent wherein she found that the College Committee passed a resolution to remove her husband from service and the same was approved by the 2nd Respondent. Till date no disciplinary action was initiated against her husband and neither herself nor her husband received any show cause notice.
9.The Petitioner made a request to the College to provide her a copy of any disciplinary proceedings initiated against her husband and the order passed thereon. Thereafter, the 3rd Respondent issued an order in Reference No.DAC/A44/2006-07/228 dated 15.09.2006 mentioning that pursuant to the resolution of the College Committee dated 27.03.2006 and the approval of the 2nd Respondent dated 05.06.2006 her husband R.Ramaraj was removed from service with effect from 11.02.1995. The said order of the 3rd Respondent is an arbitrary and an illegal one.
10.The Learned Counsel for the Petitioner contends that the impugned order of dismissal dated 15.09.2006 passed against her husband without conducting an enquiry.
11.Advancing his arguments, the Learned Counsel for the Petitioner contends that her husband R.Ramaraj suffered from mental unstableness which is known to the Respondents especially the 3rd Respondent/College and therefore, there cannot be any dismissal or any such punishment in the eye of law.
12.Proceeding further, the Learned Counsel for the Petitioner takes a plea that the order of dismissal dated 15.09.2006 passed against her husband is an illegal and invalid one in law because of the simple fact that no order of dismissal can be passed by a competent authority after the date of superannuation and disappearance of her husband.
13.The Learned Counsel for the Petitioner submits that the Petitioner is the legally wedded wife of her husband R.Ramaraj and therefore, she is entitled to claim all the benefits payable to her on the death or retirement of her husband when the same has been recommended by the 1st Respondent. Also, the stand of the Petitioner is that at no point of time her husband R.Ramaraj has been placed under suspension by the 3rd Respondent/College and also that no subsistence allowance or salary was paid.
14.The main contention advanced by the Learned Counsel for the Petitioner is that although her husband R.Ramaraj disappeared due to his mental illness and her application for the payment of retirement benefits was favourably considered by the Respondents at various point of time but no decision was taken, yet, she is entitled to receive the dues like her husband's salary, leave encashment, GPF, SPF benefits whether her husband was removed from service or not which are to be paid to her based on First Information Report about her husband's disappearance.
15.In the counter, the 2nd Respondent has averred that the Petitioner's husband was appointed as Physical Director on 01.07.1970 in 3rd Respondent's College, Aruppukottai, an aided one in Virdhunagar District by the 3rd Respondent and he served in College till 10.02.1995. After 10.02.1995 he had not turned up for duty. The 3rd Respondent/ College initiated disciplinary action against the Petitioner's husband for not reporting to duty without any information and notice or applying for any kind of leave. As per instructions of the G.O.Ms.No.1046, Personnel and Administrative Reforms (FR. III) Department dated 13.11.87, if a Government servant (permanent and approved probationer) who had completed five years of service and not turned up for duty for a continuous period of one year at a stretch, then, the disciplinary action may be taken against him as per rules.
16.The Management/College took disciplinary action against the Petitioner's husband by issuance of show cause notice [sent by registered post to the residential address] as to why disciplinary action should not be initiated against him for his unauthorised absence with effect from 11.2.1995. Since her husband left the service without giving any reference or provided the contact address, the Notice/Tapals sent to the address (as per records available in the College) was returned back by the postal authorities with an endorsement 'It could not be delivered'. The 3rd Respondent/College thereafter asked the 2nd Respondent/Authority for further action. The 2nd Respondent based on the request of the 3rd Respondent informed in L.Dis.No.3201/D2/96 dated 28.5.96 that 'paper advertisement' be given in the matter and to pursue the further action.
17.The 3rd Respondent/College advertised in a paper 'Daily Thanthi' a 'Caution Notice' mentioning that 'Thiru. Ramaraj should explain his unauthorised absence without applying for any kind of leave within 15 days from the date of publication, otherwise he will be terminated from service permanently'. Even after the issuance of the said public notice in the Daily Thanthi Newspaper, there was no response from the Petitioner's husband R.Ramaraj (Physical Director).
18.The Petitioner on 03.12.1997 addressed to the 2nd Respondent/Authority through the 3rd Respondent mentioned that her husband absconded with effect from 12.1.1995 and his whereabouts were not known and she lost the hope that he would come back again. Also, she stated that as the legal heir she is entitled to receive the benefits of her husband.
19.However, the Petitioner's husband through his letter dated 14.9.98 requested the Management to permit him to join duty and to treat the period of his unauthorised absence as medical leave with eligible pay or without pay. Further, in another letter (undated) he requested the Management to relieve him service by accepting his voluntary retirement petition on the ground of his ill health. The 1st Respondent/Director of Collegiate Education, Chennai issued clarifications through his Letter in L.Dis.No.65941/Q4/98 dated 21.1.2000 to initiate disciplinary action against Petitioner's husband for his unauthorised absence and not turning up for duty with effect from 11.02.1995 which was also confirmed by the 1st Respondent as per letter dated 06.06.2000. In the meanwhile, the Petitioner's husband returned back home submitted a written requisition dated 1.8.2001 to the 3rd Respondent stating that because of his deteriorated health condition he may be permitted to go on Voluntary Retirement with effect from 10.02.1995 on payment of three months pay in lieu of 3 months notice.
20.The 3rd Respondent/College contrary to the orders passed by the 1st Respondent/Director of Collegiate Education, Chennai vide his letter dated 21.01.2000 had accepted the voluntary retirement notice given by the individual and unanimously passed a resolution in the College Council Meeting held on 14.08.2001 and accepted 3 months notice sum of Rs.16,470/- which was remitted into Government account. The 3rd Respondent/College Authority's action in accepting 3 months notice sum was negatived by the 2nd Respondent/Joint Director of Collegiate Education, Madurai-20 in Rc.No.7413/D2/98 dated 12.12.2001 citing the clarifications issued by the 1st Respondent/ Director of Collegiate Education, Chennai. Left with no other option, the 3rd Respondent/College in order to solve the problem decided to award punishment as per Schedule-I, Sub- clause (1) Rule 12(2) of Tamil Nadu Private Colleges (Regulation) Act, 1976, as per the guidelines issued in G.O.Ms.No.1046 P & AR (FR.III) Department dated 13.11.1997 and as per instructions specified in Government Letter No.8699/FR.III/91-5 P & AR Department dated 8.8.1991, mentioning the long absence for a period of more than a year and as per resolution passed in College Council Meeting held on 27.3.2006.
21. The 3rd Respondent sent a proposal to the 2nd Respondent/Competent Authority viz., Joint Director of Collegiate Education, Madurai seeking his approval to dismiss the Petitioner's husband. The 2nd Respondent after perusing all records and connected documents accorded approval for the action taken by the 3rd Respondent/College to dismiss the Petitioner's husband R.Ramaraj, Physical Director with effect from 11.02.1995 as per Sub-clause 12(2) Schedule-I of Tamil Nadu Private Colleges (Regulation) Act, 1976.
22.Inasmuch as the Petitioner's husband R.Ramaraj was dismissed from service permanently with effect from 11.02.1995 as per resolution passed by the College Council and in view of prior approval by the competent authority, his Legal Heir is not eligible to receive the family pension as per rules. Necessary action was taken to close the Aided College Provident Fund Account of the Petitioner's husband.
23.The categorical stand of the 2nd Respondent is that since the termination order dated 15.09.2006 of Petitioner's husband was unanimously passed by the College Committee constituted by the 3rd Respondent in accordance with the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and also because of the prior approval for Petitioner's husband's termination was obtained from the 2nd Respondent/Joint Director of Collegiate Education, Madruai as per rules, the Writ Petition is liable to be dismissed.
24.The Secretary of the 3rd Respondent/College in his counter has among other things observed that 'the Petitioner's husband R.Ramaraj (Physical Director) absented himself unauthorisedly from duty 12.01.1995 and this was intimated by the College to the Higher Authorities of the Department of Collegiate Education. By means of a notice dated 29.11.1995 the Petitioner's husband was requested to explain in writing the reasons for his absence from duty and as to whey disciplinary action should not be taken against him on or before 30.12.1995. The said notice returned unserved. A similar memo dated 22.01.1996 was sent to the Petitioner's husband and this was returned with an endorsement 'party left without intimation'. As such, the 3rd Respondent/College gave a paper publication on 17.o7.1996 to the effect that the Petitioner's husband will be removed from service if explanation was not submitted to the College as regards the his unauthorised absence within 15 days therefrom.
25.The Petitioner on 03.12.1997 approached the 3rd Respondent/ College by submitting a representation with a request to forward the same to the 2nd Respondent mentioning that her husband R.Ramaraj disappeared from 12.01.1995 and she had not known the whereabouts of her husband. Further, she also made a request to pay the remaining salary of other monitory benefits belonging to her husband. The Petitioner's husband suddenly appeared before the Principal of the 3rd Respondent/College on 14.09.19998 seeking permission by furnishing a representation to rejoin duty excusing the long period of his unauthorised absence and treating the period as leave on loss of pay on humanitarian grounds, By another representation dated 14.09.1998 the Petitioner's husband R.Ramaraj requested the 3rd Respondent/College to permit him to go on voluntary retirement on payment of three months salary thereby expressed his inability to continue in service.
26.The representation of the Petitioner's husband dated 14.09.1998 was communicated to the 1st Respondent/Director of Collegiate Education as per proceedings of the 3rd Respondent/College dated 18.02.1999. By taking a lenient view and considering the request of the husband of the Petitioner on humanitarian grounds, the College Committee of the 3rd Respondent passed a resolution on 14.08.2001 to accept the application and to authorise the College Secretary to relieve the staff member from service on voluntary retirement by receiving 3 months salary in lieu of 3 months notice subject to the approval of the 1st Respondent.
27.The 3rd Respondent/College sent a communication dated 11.10.2001 enclosing the resolution of the College Committee and the challan file for payment of 3 months salary of Rs.16,470/- to the 2nd Respondent/Joint Director of Collegiate Education, Madurai requesting him to approve the voluntary retirement of the Petitioner's husband so as to enable him to get personal benefits on humanitarian grounds.
28.The Petitioner's husband was relieved from service on voluntary retirement on 17.08.2001 by paying his 3 months salary in lieu of 3 months notice with the specific observation that the relieving order is subject to the approval of the 1st Respondent/Director of Collegiate Education, Chennai. The 1st Respondent/Director of Collegiate Education through a letter dated 13.08.2002 rejected the recommendation of the 3rd Respondent/College to permit the Petitioner's husband to proceed on voluntary retirement on the basis that he cannot be permitted to go on voluntary retirement retrospectively besides observing that the institution had to impose punishment on the staff member who failed to attend for duty duly conducting disciplinary proceedings according to the Government order dated 08.08.2000.
29.Based on the order of the 1st Respondent/Director of Collegiate Education, Chennai dated 13.08.2002 and as per G.O.Ms.No.1046 Personnel and Administrative Reforms (FR III) dated 13.11.1987 and based on the Government Letter No.8699/FR III/91-5 Personnel and Administrative Reforms dated 08.08.1991, the 3rd Respondent College Committee passed a resolution dated 27.03.2006 to dismiss the Petitioner's husband with effect from 11.02.1995. Giving effect to the resolution of the College Committee a proposal was sent by the 3rd Respondent to the 2nd Respondent/Joint Director of Collegiate Education, Madurai. The 2nd Respondent, on consideration of the earlier proceedings and on elaborate consideration of the facts and circumstances of the case, had approved the decision taken by the College Committee to dismiss the Petitioner's husband from service. Therefore, the Petitioner's husband R.Ramaraj was removed from service by means of an order dated 15.09.2006 passed by the Secretary of the 3rd Respondent/College and the same was sent to the Petitioner's husband by registered post.
30.The Principal of the 3rd Respondent/College had not advised the Petitioner at any point of time to file an application before the College Authorities as regards the payment of salary and other benefits of her husband.
31.Just because the request of the Petitioner's husband to permit him to go on voluntary retirement by paying 3 months salary in lieu of 3 months notice was considered on humanitarian ground and rejected the Petitioner could not claim any relief in the Writ Petition because of the fact her husband had admitted his guilty of unauthorised absence from duty for a long period. Hence, the impugned order of the 3rd Respondent dated 15.09.2006 is perfectly a legal, valid and sustainable one in law.
32.The Learned Counsel for the Petitioner cites the decision of this Court in Angelus V. Director of Elementary Education, Chennai and others (2006) 2 M.L.J. 479 at page 480 wherein it is held as follows:
"The submission of voluntary retirement application on 26.2.1988 to the respondents 2 and 3 is proved by production of letter as well as postal acknowledgment. The completion of 21 years, 11 months and 23 days of pensionable service is certi the third respondent by his proceedings dated 29.11.2001. Those, who completed more than 2 0 years of service or attained 50 years of age are entitled to submit application for voluntary retirement as per Rule 56(3) of the Fundamental Rules. If no order of rejection of voluntary retirement is passed and communicated to the person concerned, it is to be treated as deemed acceptance as per Rule 56(3)(f) of the Fundamental Rules.
12. The direction to rejoin duty was given by the second respondent prior to the expiry of notice period and therefore the petitioner joined during the notice period and relieved himself from 5.6.1988, i.e, the date of expiry of notice period. In the absence of any rejection of application for voluntary retirement, as submitted by the petitioner, and in the absence of any resignation letter submitted by the petitioner as contended by the second respondent, petitioner cannot be treated as resigned from his post and if really the petitioner had resigned as contended now in the impugned order, the third respondent ought not to have submitted proposal for sanction of pension and gratuity as stated in the proposal dated 29.11.2001. For calculation of the pensionary service, the period of leave sanctioned on loss of pay alone is to be deducted. Hence, petitioner satisfy the 20 years of service period at the time of submitting application for voluntary retirement. Thus the petitioner is entitled to get himself relieved from 5.6.1988 and the respondents are bound to sanction pension and other benefits to him from 6.6.1988.
33.He also cites the order of this Court dated 30.06.2006 in W.P.No.5480 of 1998 between N.Pankajam V. State of Tamil Nadu Rep. By its Commissioner and Secretary Department of Transport, Fort St. George, Chennai - 600 009 wherein it paragraph 17 and 18 it is laid down as follows:
"17. Here the petitioner has established that the petitioner's husband has not been heard for over 7 years from 19.05.1987 and the same is not disputed and therefore, it is to be presumed that the petitioner's husband is dead as per Section 108 of Indian Evidence Act.
18. In view of the said finding, the action of the second respondent in removing the name of the petitioner's husband from the roll of the Corporation is illegal, since the petitioner's husband cannot be treated as an absentee. As he was not available, he could not report for duty. The contention of the second respondent that the petitioner's husband having been removed from the roll, the petitioner is not entitled to get retirement benefits and her son cannot be given compassionate appointment are unsustainable."
34.He seeks in aid of the Division Bench Judgment of this Court in P.Muthusamy V. Tamil Nadu Cements Corporation Limited, rep. By its Chairman and Managing Director, Chennai and Another (2006) 4 M.L.J. 504 wherein it is held as follows:
"In the absence of specific enabling provision in the TANCEM Service Rules, the order reserving the right to continue disciplinary proceeding, after superannuation, is illegal and without jurisdiction."
35.The Learned Counsel for the 3rd Respondent cites the decision of Hon'ble Supreme Court in Aligarh Muslim University and others V. Mansoor Ali Khan (2000) 7 Supreme Court Cases 529 at page 532 & 533 it is inter alia held as follows:
"M was put on advance notice that it would not be possible to give any further extension i.e. Beyond one year on the ground of continuance in the job at Libya and he was to resume duty by 18.4.1982. In fact, thereafter some special consideration was still shown in his favour by way of granting him joining time up to 1.7.1982. It was clearly said that otherwise he would be deemed to have vacated the post. If he had, in spite of this warning, gone ahead by accepting a further contact in Libya, it was his own unilateral act in the teeth of the advance warning given. That conduct was rightly held by the Single Judge to be sufficient to deny him relief under Article 226.
However, when rules permit and provide for an employee to go abroad discretion must be exercised reasonably while refusing extension. In the present case, giving of further extension only for one year out of the further period of three years sought for is not unreasonable.
In the cases of deemed vacation of office under Rule 5(8)(i) of the 1969 Rules, there is a deeming provision of vacation of the post where the explanation offered by the employee, consequent upon a notice, is found not satisfactory. But in the peculiar circumstances of M's case, he has no other explanation - from what is revealed in his writ petition filed later - other than his further commitment abroad for 2 more years. Hence, even if no notice was given, the position would not have been different because that particular explanation would not be treated as satisfactory had already been intimated to him in advance. Therefore, the absence of a notice in M's case must be treated as having made no difference. The only conclusion that can be drawn is that even if M had been given notice and he had mentioned this fact of job continuance in Libya as a reason, that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L.Kapoor case. It has, therefore, to be held that no prejudice was caused to M for want of notice under Rule 5(8)(i). Point 5 is decided therefore, against M.
S.L.Kapoor V. Jagmohan, (1980) 4 SCC 379 followed
Care must be taken, wherever the court is justifying a denial of natural justice, that its decision is not described as a "preconceived view" or one in substitution of the view of the authority who would have considered the explanation."
36.In W.P.No.37681 of 2006 (O.A.No.5936 of 1998) between V.Chandrasekaran V. Director of Elementary Education, Chennai-6 and 2 others this Court on 08.10.2009 has, among other things, in paragraph 3 observed as follows: "3. The claim of the petitioner was that he gave a notice to go on voluntary retirement by his notice dated 23.02.1998 and three months notice which was required under the Rules comes to an end on 25.5.1998. He sent a letter dated 25.05.1998 to the third respondent stating that since there was no rejection of his request to go on voluntary retirement, it was deemed to have been accepted. Therefore, he stopped attending work from 25.05.1998. It was also the case of the petitioner that the rejection order which was challenged dated 20.05.1998 was received by him only on 02.06.1998 i.e. after the period of expiry of the notice. 4.On notice from the Tribunal, the respondents have filed a reply affidavit dated 05.10.2009. In the reply affidavit, it was stated that the petitioner was suspended pursuant to the registration of a criminal case in Crime No.2/90 by the Sub-Inspector of Police, Dharmapuri Police Station. The said case was tried as Calendar Case 14/92 before the Judicial Magistrate No.I, Dharmapuri. The said case ended in acquittal in favour of the petitioner by a judgment dated 16.08.1995. Thereafter, on the representation of the petitioner, he was restored to service on 23.02.1998. After joining duty for one day, he gave notice to go on voluntary retirement. It was further stated that so far as the regularisation of the period of suspension from 6.1.90 to 22.9.98 was concerned, as it was for more than eight years, necessary orders will have to be obtained from the Government. The petitioner was also informed by them that he should submit necessary documents to enable them to forward the petitioner's request to the Government for regularising his service. The respondent denied the statement made by the petitioner that the order was ante dated. The petitioner was also informed that before getting relieved, prior permission should have been obtained by the petitioner, but he never informed the department about his leaving service nor handed over charge. The Rule requires clearance from the Vigilance Department for going on Voluntary Retirement and the petitioner's service during the interregnum period of suspension was also not regulated.
Further, in paragraph 10 and 11, it is, among other things, held hereunder:
"10... But on the contrary in the present case, the petitioner himself had filed the order rejecting the case of the petitioner, which was dated 20.05.1998. In the Original application, he had stated that he had received the said order only on 02.06.1998. Though he contended that the said order was ante dated but the same was denied by the respondents in the reply statement.
11.The further question arises for consideration was that if the competent authority rejects the request of the petitioner within the notice period, whether it should be communicated before the expiry of the notice. Fundamental Rule 56(3)(f) merely says that the appointing authority shall issue orders before the date of expiry of notice and nowhere the Rule contemplates that the rejection order must be communicated to the petitioner. Presumably having that in mind, the petitioner had made a statement that the order was ante dated. When the respondents have refused about any ante dating of the order, this Court has no other reason to disbelieve the statement made in the reply affidavit."
37.It is to be pointed out that the term 'voluntary retirement' is a condition of service by means of a statutory provision. Ordinarily, a person retires in the case of a voluntary retirement on completion of qualifying service as per Rules.
38.Once a voluntary retirement has been permitted, there is no question of withholding or recession of the same in the absence of rules to that effect. A voluntary retirement becomes effective when it operates to terminate the employment or the tenure of the resigner viz., from the date of actual release by the employer and not merely the date of acceptance of the offer of resignation.
39.This Court aptly points out the decision of Hon'ble Supreme Court in B.J.Shelat V. State of Gujarat and others (1978) 2 SCC 202 and 203 wherein it is held as follows:
"Rule 161 provides for the retirement of a government servant before attaining the age of superannuation. Sub-rule (2) provides that any government servant to whom clause (a) applies may be giving notice of not less than three months in writing to the appointing authority, retire from service, and in any other case, after he has attained age of 55 years: provided that it shall be open to the appointing authority to withhold permission to retire to a government servant who is under suspension or against whom departmental proceedings are pending or contemplated. In the present case, no departmental proceedings were pending; but it could be said that a proceeding was under contemplation. However, on a reading of the Rule and the Proviso it is incumbent on the government to communicate to the government servant its decision to withhold permission to retire on one of the grounds specified in the Proviso. The proviso contemplates a positive action by the appointing authority. The words "it shall be open to the appointing authority to withhold the permission" indicate that the appointing authority has got an option to withhold permission and that could be exercised by communicating its intention to withhold permission to the government servant. The question whether the communication should reach the government servant or whether it would be sufficient if such an order is sent out and goes out of the control of the appointing authority before the relevant date, is not relevant in this case as admittedly the appointing authority has not chosen to withhold permission and the order of suspension was not communicated before the date of superannuation. The word "withhold" cannot be read to mean that in the absence of a communication it 'must be understood that permission was withheld."
Moreover, in the aforesaid decision at page 207 and 208 in paragraph 9 and 10 it is observed hereunder:
"9.Mr. Patel next referred us to the meaning of the word "withhold" in Webster's Third New International Dictionary which is given as "hold back" and submitted that the permission should be deemed to have been withheld if it is not communicated. We are not able to read the meaning of the word "withhold" as indicating that in the absence of a communication is must be understood as the permission having been withheld.
10.It will be useful to refer to the analogous provision in the Fundamental Rules issued by the Government of India applicable to the Central Government servants. Fundamental Rule 56(a) provides that except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which lie attains the age of fifty-eight years. Fundamental Rule 56 (j) is similar to Rule 161 (aa) (1) of the Bombay Civil Services Rules conferring an absolute right on the appropriate authority to retire a Government servant by giving not less than three months notice. Under Fundamental Rule 56(k) the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to sub-rule 56(k) states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. Thus under the fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso wherever the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of Rule 161(2) (ii) and the proviso we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the ground specified in the proviso."
40.Also, this Court worth recalls the decision of Hon'ble Supreme Court in Tek Chand V. Dile Ram Judgments Today 2001 (2) SC 114 at page 136 to 140 in paragraph Nos.33 to 39 it is held thus:
"33.Under sub-rule (1) of the said Rule, at any time after completion of 20 years qualifying service, a Government servant could give notice of not less than three months in writing to the appointing authority for retirement from service. Under sub-rule (2), voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority. In the proviso to sub-rule (2) of Rule 48-A, it is clearly stated that in case the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
34.It is clear from sub-rule (2) of the Rule that the appointing authority is required to accept the notice of voluntary retirement given under sub-rule (1). It is open to the appointing authority to refuse also on whatever grounds available to it but such refusal has to be before the expiry of the period specified in the notice. The proviso to sub-rule (2) is clear and certain in its terms. If the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement sought for becomes effective from the date of expiry of the said period. In this case, admittedly, the appointing authority did not refuse to grant the permission for retirement to Nikka Ram before the expiry of the period specified in the notice dated 5.12.1994. The learned senior counsel for the respondent argued that the acceptance of voluntary retirement by appointing authority in all cases is mandatory. In the absence of such express acceptance the Government servant continues to be in service. In support of this submission, he drew our attention to Rule 56(k) of Fundamental Rules. He also submitted that acceptance may be on a later date, that is, even after the expiry of the period specified in the notice and the retirement could be effective from the date specified in the notice. Since the proviso to sub- rule (2) of Rule 48- A is clear in itself and the said Rule 48-A is self-contained, in our opinion, it is unnecessary to look to other provisions, more so in the light of law laid down by this Court. An argument that acceptance can be even long after the date of the expiry of the period specified in the notice and that the voluntary retirement may become effective from the date specified in the notice, will lead to anomalous situation. Take a case, if an application for voluntary retirement is accepted few years later from the date specified in the notice and voluntary retirement becomes operative from the date of expiry of the notice period itself, what would be the position or status of such a Government Servant during the period from the date of expiry of the notice period upto the date of acceptance of the voluntary retirement by the appointing authority? One either continues in service or does not continue in service. It cannot be both that the voluntary retirement could be effective from the date of expiry of the period mentioned in the notice and still a Government servant could continue in service till the voluntary retirement is accepted. The proviso to sub-rule (2) of Rule 48-A of the Rules does not admit such situation.
35.This Court in a recent judgment in the case of State of Haryana and others vs. S.K.Singhal [(1999) 4 SCC 293], after referring to few earlier decisions of this Court touching the very point in controversy in para 13 of the judgment has held thus :-
13. Thus, from the aforesaid three decisions it is clear that if the right to voluntarily retire is conferred in absolute terms as in Dinesh Chandra Sangma case by the relevant rules and there is no provision in the rules to withhold permission in certain contingencies the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. If, however, as in B.J. Shelat case and as in Sayed Muzaffar Mir case the authority concerned is empowered to withhold permission to retire if certain conditions exist, viz, in case the employee is under suspension or in case a departmental enquiry is pending or is contemplated, the mere pendency of the suspension or departmental enquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on the expiry of the period specified. What is further needed is that the authority concerned must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in B.J. Shelat case and in Sayed Muzaffar Mir case before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non-communication of acceptance should be treated as amounting to withholding of permission.
36.In our view, this judgment fully supports the contention urged on behalf of the appellant in this regard. In this judgment, it is observed that there are three categories of rules relating to seeking of voluntary retirement after notice. In first category, voluntary retirement automatically comes into force on expiry of notice period. In second category also, retirement comes into force unless an order is passed during notice period withholding permission to retire and in third category voluntary retirement does not come into force unless permission to this effect is granted by the competent authority. In such a case, refusal of permission can be communicated even after the expiry of the notice period. It all depends upon the relevant rules. In the case decided, the relevant rule required acceptance of notice by appointing authority and the proviso to the Rule further laid down that retirement shall come into force automatically if appointing authority did not refuse permission during the notice period. Refusal was not communicated to the respondent during the notice period and the court held that voluntary retirement came into force on expiry of the notice period and subsequent order conveyed to him that he could not be deemed to have voluntary retired had no effect. The present case is almost identical to the one decided by this Court in the aforesaid decision.
37.This Court in B.J. Shelat vs. State of Gujarat & Ors. [ (1978) 2 SCC 201 ] while dealing with a case of voluntary retirement, referring to Bombay Civil Service Rules, Rule 161(2)(ii) proviso and Rule 56(k) of the Fundamental Rules, in similar situation, held that a positive action by the appointing authority was required and it was open to the appointing authority to withhold permission indicating the same and communicating its intention to the Government Servant withholding permission for voluntary retirement and that no action can be taken once the Government servant has effectively retired. Paras 9 and 10 of the said judgment read thus :
9. Mr. Patel next referred us to the meaning of the word withhold in Websters Third New International Dictionary which is given as hold back and submitted that the permission should be deemed to have been withheld if it is not communicated. We are not able to read the meaning of the word withhold as indicating that in the absence of a communication it must be understood as the permission having been withheld.
10. It will be useful to refer to the analogous provision in the Fundamental Rules issued by the Government of India applicable to the Central Government servants. Fundamental Rule 56(a) provides that except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. Fundamental Rule 56(j) is similar to Rule 161(aa)(1) of the Bombay Civil Services Rules conferring an absolute right on the appropriate authority to retire a Government servant by giving not less than three months notice. Under Fundamental Rule 56(k) the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to sub-rule 56(k) states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. Thus under the Fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso where under the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of Rule 161(2)(ii) and the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government Servant its decision to withhold permission to retire on one of the grounds specified in the proviso.
In this decision effect of Rule 56(k) of Fundamental Rules is also considered which answers the argument of the learned counsel for the respondent on this aspect. It may also be noticed that under Rule 48-A in Government of Indias decision giving instructions to regulate voluntary retirement it is stated, Even where the notice of voluntary retirement given by a Government servant requires acceptance by the appointing authority, the Government servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice.
38.If we accept the argument of the learned senior counsel for the respondent, even if the refusal of voluntary retirement is not communicated within the period specified in notice, the voluntary retirement cannot be effective unless it is accepted by the appointing authority, no meaning and effect can be given to the proviso to sub-rule (2) to Rule 48-A. It is cardinal rule of construction that no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute or a rule.
39.The High Court looking to the letters dated 29.12.1994, 18.12.1996, 2.4.1998, 26.3.1998 and 7.8.1998 came to the conclusion that Nikka Ram was in Government service on the date of filing nomination paper. The High Court also observed that there was glaring omission on the part of the appellant in not controverting the pleadings and evidence of the respondent with regard to Nikka Ram being in Government service at the relevant time and also relied on the oral evidence in this regard to say that Nikka Ram was holding office of profit by being in Government service on the date of filing nomination paper and as such his nomination paper was wrongly accepted. It is not disputed, as already stated above, that no communication was given to Nikka Ram before the expiry of the period specified in the notice of voluntary retirement. Nikka Ram was not examined. Exbt. PW3/2, letter dated 26.3.1998, Exbt. PW3/3, letter dated 2.4.1998 and Exbt. PW3/3 letter dated 7.8.1998 were of dates subsequent to the date of filing of nomination paper and even declaration of the result of the election on 2.3.1998. On the basis of the material available on record on the date of scrutiny of nomination paper, there was nothing to show that Nikka Ram continued in Government service in view of the admitted position that he had submitted application for voluntary retirement by giving notice on 5.12.1994 and no refusal was communicated to him, refusing acceptance of voluntary retirement before 28.2.1995. By virtue of Rule 48-A, as discussed above, the voluntary retirement of Nikka Ram came into force and became effective from 28.2.1995. Neither Nikka Ram nor Government of Himachal Pradesh are parties to this appeal before us. In this appeal we do not wish to deal with the status of Nikka Ram in relation to Government service or the respective rights and contentions, if any, of Nikka Ram and State Government in regard to his service and the consequences that may follow. For the purpose of this appeal it is enough to say that on the date of filing and scrutiny of nomination paper of Nikka Ram, he should be deemed to have been voluntarily retired by operation of proviso to sub-rule (2) of Rule 48-A."
41.Apart from the above decisions, it is useful for this Court to cite the following decisions:
(a)In Pudubidri Damodar Shenoy V. Indian Airlines Limited and another Judgments Today 2009 (12) SC 108 at page 109 and 110 it is held as follows: "Regulation 12 of the Service Regulations, inter alia, enables an employee to seek voluntary retirement on attaining the age of 55 years or on completion of 20 years of continuous service by giving three months notice. An employee who has attained the age of 55 years and has applied for voluntary retirement under Regulation 12, his voluntary retirement is automatic on expiry of notice period i.e. three months. Is it equally applicable to an employee who has not attained the age of 55 years but completed 20 years of continuous service and applied for voluntary retirement. In our judgment, it is not so because for a category covered by clause (b), namely, an employee having completed 20 years of continuous service who has given three months notice for voluntary retirement from the service, a proviso appended thereto provides that voluntary retirement under clause (b) shall be subject to approval of the competent authority. The use of the word `shall' in the proviso, prima facie leads to an inference that provision is imperative. There is nothing in the context to suggest that it is merely directory. It is followed by the words, `subject to approval'. The effect of the use of words `subject to' is to introduce a condition. The expression, "shall be subject to approval" is indicative of its intendment that the voluntary retirement applied by the employees covered by clause (b) is effective only upon approval by the competent authority. The appellant issued a notice of voluntary retirement under Regulation 12 (b) on September 30, 2005. The notice period was to expire on December 31, 2005. It is an admitted position that the competent authority neither gave approval nor indicated disapproval to the appellant within the notice period of three months. The employee never treated that there has been cessation of employment on expiry of three months notice period inasmuch as he continued to attend his duties after December 31, 2005 until June 30, 2006. It is only by his letter dated June 8, 2006 that the appellant requested the respondent to relieve him in terms of his notice dated September 30, 2005 by June 30, 2006 and he stopped attending work from July 1, 2006. The letter dated June 8, 2006 does not make any material difference as the fact of the matter is that after expiry of notice period, the appellant continued to attend his duties for many months thereafter. By the letter dated September 15, 2006 the respondent communicated to the appellant that his application for voluntary retirement under Service Regulation 12(b) has not been acceded to by the competent authority. Since the notice for voluntary retirement by an employee who has not attained 55 years but has completed 20 years of continuous service, under proviso appended to Regulation 12(b), is subject to approval by the competent authority and that approval was not granted, the voluntary retirement of the respondent never came into effect."
(b)In Union of India and others V. Sayed Muzaffar Mir AIR 1995 Supreme Court 176 at page 177 in paragraph 4 and 5, the Hon'ble Supreme Court has observed and held hereunder:
"4.There are two answers to this submission. The first is that both the provisions relied upon by the learned counsel would require, according to us, passing of appropriate order, when the government servant is under suspension (as was the respondent), either of withholding permission to retire or retaining of the incumbent in service. It is an admitted fact that no such order had been passed in the present case. So, despite the right given to the appropriate/competent authority in this regard, the same is of no avail in the present case as the right had not come to be exercised. We do not know the reason(s) thereof. May be, for some reason the authority concerned thought that it would be better to see off the respondent by allowing him to retire.
5.The second aspect of the matter is that it has been held by a three-Judge Bench of this Court in Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441: (AIR 1978 SC 17), which has dealt with a pari materia provision finding place in Rule 56(c) of the Fundamental Rules, that where the government servant seeks premature retirement the same does not require any acceptance and comes into effect on the completion of the notice period. This decision was followed by another three Judge Bench in B.J. Shelat v. State of Gujarat, (1978) 2 SCC 202: (AIR 1978 SC 1109)."
(c)In K.L.E. Society V. Dr.R.R. Patil and Another (2002) 5 SCC 278 at special page 283 to 285 in paragraph 16 to 18 and in para 20 and 21, the Hon'ble Supreme Court has observed hereunder:
"16.When the respondent No.1 submitted the second notice on 5.7.1995 no reference was made to the earlier notice dated 2.12.1994. Besides there could not have been two applications for voluntary retirement. By accepting the second application on 5.7.95 the first application must in any event be treated as having been superseded. The respondent No. 1's letter dated 5.7.1995 was in fact a fresh application for voluntary retirement. Here too the respondent No. 1 did not specify the intended date of retirement. He only requested that he may be permitted to take retirement 'at the earliest'. The non specification of a date coupled with the fact that no request was made for curtailment of the notice period, meant that the date of his voluntary retirement could only be on or after 5.10.95. During this period, the respondent No. 1 sent the letter dated 19.7.95 requesting that the notice of voluntary retirement dated 5.7.95 be kept in abeyance. This was not a letter for withdrawing the notice. It was a request that the notice may be kept in abeyance in the sense not considered immediately thus postponing the intended date of retirement. Assuming that the letter dated 19.7.95 was a notice of withdrawal and that the appellant was right in discarding it, nevertheless the appellant was bound to allow the notice period of three months calculated from 5.7.95 to expire before issuing an order accepting the notice. Admittedly the appellant did not do that. They issued the impugned order within 15 days.
17.The appellant purported to treat the notice dated 5.7.95 as a continuation of the first notice dated 2.12.94 for the purpose of calculating the notice period. They could not have done that for the reasons stated earlier. The appellant not having waited for three months from 5.7.95, the order accepting the respondent No. 1's request for voluntary retirement was premature and amounted to unilateral curtailment of the notice period by the appellant contrary to the Scheme and more particularly Rule 50 (5) (c) thereof. The impugned order cannot but be held to be bad.
18.There is a further reason for setting aside the impugned order. Under Rule 50 (5), as far as the respondent No. 1 was concerned, the appointing authority was the appellant and the approving authority was the State Government. The order of acceptance could have been issued by the appellant on 20.7.95 only after obtaining the "specific prior approval" of the State Government under clause (m) and after verification of the respondent No. 1's eligibility in consultation with the Accountant General under clause (m). Neither of these pre- conditions had been fulfilled. The purported approval of the State Government was much after the impugned order of acceptance was passed. The verification with the Accountant General has not been done at all.
20.Ordinarily, having reached this conclusion, we would have merely dismissed the appeal, but having regard to the submissions made by counsel on either sides, we feel that it would be more appropriate to mould the relief granted by the High Court to the respondent. The respondent himself had decided to retire for compelling personal reasons. In fact, he had been on long leave prior to the second notice asking for permission to voluntarily retire. He had agreed to continue for the time being at the instance of others in the interest of the institution. The appellant has in the meantime replaced the respondent with another Principal who has been serving for the last 7 years apparently to the satisfaction of the appellant and without any complaint. It is also not the respondent's case that the present incumbent is incompetent or has not discharged his duties during this period with dedication and commitment. On the other hand the replacement of the present incumbent by the respondent may, given the history of this litigation, create an atmosphere of discord and confrontation, which would not benefit the institution at all. It would, in the circumstances, be in the interest of all the protagonists to allow the present incumbent to continue while compensating the respondent for the incorrect action taken by the appellant against him.
21.We accordingly dismiss the appeal with the direction that the respondent will not be reinstated in service but be treated to have retired from service as indicated in the order impugned before the Tribunal and the appellant shall pay to the respondent a sum equivalent to three years' salary as last drawn by the respondent as Principal of the College by way of compensation. Such payment shall be made within eight weeks from today. The appellant will also pay the respondent the costs of this appeal assessed at Rs.5,000/- ( Rs. Five thousand only)."
(d) In Bank of India V. O.P.Swarankar AIR 2003 Supreme Court 858 at page 859 & 860, the Hon'ble Supreme Court has observed and held as follows: "The employees opting for Voluntary Retirement could withdraw their offer before it was accepted by the Bank despite the contractual bar to withdrawal contained in the Scheme.
A proposal is made when one person signifies to another his willingness to do or abstain from doing anything with a view to obtaining the assent of the other to such act or abstinence (S.2(a)). Herein the Banks by reason of the Scheme or otherwise have not expressed their willingness to do or abstain from doing anything with a view to obtaining assent of the employees to such act. Not only the power of the Bank to accept or reject such application is absolutely discretionary, it, could also amend or rescind the Scheme. The Scheme, therefore, cannot be said to be an offer which, on the acceptance by the employee, would fructify in a concluded contract. The Scheme having regard to its provisions merely constitute an invitation to treat and not an offer. The proposal of the employee when accepted by the Bank would constitute a promise within the meaning of S.2(b) of the ACt. Only then the promise becomes an enforceable contract. In the instant case, the Banks when floating the Scheme did not signify that on the employees assenting thereto a concluded contract would come inot being in terms whereof they would be permitted to retire voluntarily and get the benefits thereunder. Furthermore, in terms of the said Scheme no consideration passed so as to constitute an agreement. Once it is found that by giving their option under the Scheme, the employees did not derive an enforceable right, the same in absence of any consideration would be void in terms of S.2(g) of the Contract Act as opposed to S.2(h) of the Contract Act as opposed to S.2(h) thereof. Furthermore, even by opting for the Scheme as floated by the Banks, no consideration is passed far less amounting to reciprocal promise. In the instant case, there was even no reasonable certainty that the Scheme would be acted upon. Furthermore terms and conditions thereof could be amended and even the Scheme itself could be rescinded. The Voluntary Retirement Scheme was, therefore, not a proposal or an offer but merely an invitation to treat and the applications filed by the employees constituted 'offer.'
Once the application filed by the employees is held to be an 'offer'; S.5 in absence of any other independent binding contract or statute or statutory rules to the contrary would come into play and the offer made by employees could be revoked any time before it was accepted."
(e) In Union of India and another V. Wing Commander T.Parthasarathy (2001) 1 Supreme Court Cases 158 and 159, the Hon'ble Supreme Court has laid down as follows:
"A request for premature retirement which required the acceptance of the competent or appropriate authority will not be complete till accepted by such competent authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for premature retirement was made to take effect from a future date as in this case."
(f)In P.Lal V. Union of India and others (2003) 3 Supreme Court Cases 393 at page 395 & 396, the Hon'ble Supreme Court has inter alia observed as follows: "An employee can withdraw his application for voluntary retirement before the effective date. The effective date would necessarily be the date on which the retirement takes effect. The request, which Respondent No. 3 had made by his letter dated 5th May, 1993, was to be allowed to retire voluntarily with immediate effect. He had also deposited Rs. 30,870/- in lieu of three months' notice. Thus so far as Respondent No. 3 was concerned the effective date was 5th May, 1993. Of course Rule 16(2A) of the All India Services (Death-cum- Retirement) Rules, 1958 provides that a notice of retirement had to be accepted by the Government of India. In this case, the Government of India accepted the request on 2nd March, 1995 and permitted Respondent No. 3 to retire with effect from May 1993. The moment Government of India accepted the notice the retirement became effective. The relationship of master and servant came to an end. We are unable to accept the submission that the relationship of master and servant did not terminate till the acceptance was communicated to Respondent No. 3. It must be remembered that Rules 16(2) and 16(2A) enable a member to retire from service on giving the required notice. Once such a notice is given it merely has to be accepted by the Government of India. The moment it is accepted the retirement would become effective. If any other view is taken it would lead to absurd results. Such a view would mean that even though a member had given a notice for voluntary retirement stopped attending office and/or gone away abroad and/or taken up some other employment after a number of years of absence the member could claim to come back into service because the Government, for some unforeseen reasons, had not communicated its acceptance. Taken to its absurd length such a member could after superannuation claim that, as the services were not terminated, he was entitled to pension and gratuity on the basis that he had continued in service. The requirement of communication of acceptance would only arise in cases where, even after giving of a notice of voluntary retirement the member continues to work/perform his duties. In such cases the member would need to know from what date he can stop attending office. In cases where the member has by his own conduct abandoned service the severance of the relationship of master and servant takes place immediately on acceptance of notice. We are unable to accept the submission that the severance of relationship of master and servant cannot take effect until there is an Order by the President of India and the same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set out hereinabove. All that it requires is acceptance by the Government of India and not by the President of India. Admittedly the request for voluntary retirement has been accepted by the Government of India on 2nd March, 1995. No provision or rule could be shown which requires such acceptance to be gazetted. On the contrary, as has been set out hereinabove, in its affidavit before the Punjab & Haryana High Court, the Government of Punjab had categorically stated that there was no provision for gazetting such an order."
(g)In State of Haryana and others V. S.K.Singhal (1999) 4 Supreme Court Cases 293 at page 294 & 295, it is observed and laid down as follows: "Voluntary retirement in the present case was governed by Rule 5.23(B) of the Punjab Civil Services Rules, Vol. II Clause (2) of this rule provided that "The notice of voluntary retirement ... shall require aceptance by the appointing authority subject to Rule 2.2 of the Punjab CSR Vol.II." Proviso to Rule 5.32 (B)(2) further laid down that "where the appointing authority does not refuse to grant the permission for retirement before the expiry of the (notice) period ..., the retirement shall become effective from the date of expiry of the said period". Rule 2.2 of the Civil Services Regulations, Vol. II [referred to in Rule 5.32(B)(2) provided that future good conduct was an implied condition for grant of pension.
Rules applicable in various government departments provide for voluntary retirement by giving notice (say for three months). Some rules are couched in language which results in automatic retirement on expiry of period specified in employee's notice whereas in some rules, the language makes it clear that even on expiry of the period specified in notice, till such acceptance is communicated; refusal of permission can also be communicated after notice period and the employee continues to be in service. Cases like Dinesh Chandra Sangma, B.J. Shelat and Sayed Mazaffar Mr, belong to former category where it is held that upon expiry of notice period, voluntary takes effect automatically as no order of refusal is passed within the notice period. On the other hand, Suman Behari Sharma case, belongs to second category.
Dinesh Chandra Sangma V. State of Assam, (1977) 4 SCC 441: 1978 SCC (L& S) 7; B.J. Shelat V. State of Gujarat, (1978) 2 SCC 202: 1978 SCC (L&S) 208; Union of India V. Sayed Muzaffar Mir, 1995 Supp (1) SCC 76: 1995 SCC (L&S) 256; H.P.Horticultural Produce Marketing & Processing Corporation Limited V. Suman Behari Sharma (1996) 4 SCC 584 : 1996 SCC (L& S) 1056, considered,
It is clear form Dinesh Chandra Sangma, B.J. Shelat and Sayed Muzaffar Mir cases that if the right to voluntarily retirement is conferred in absolute terms as in Dinesh Chandra Sangma's case by the relevant rules and there is no provision in Rules to withhold permission in certain contingencies the voluntary retirement comes into effect suthomatically on the expiry of the period specified in the notice. If, however, as in B.J.Shelat's case and as in Sayed Muzaffar Mir's case, the concerned authority is empowered to withhold permission to retire if certain conditions exist, viz. in case the employee is under suspension or in case a departmental inquiry is pending or is contemplated, the mere pendency of the suspension or departmental inquiry or its contemplation does not result in the notice of voluntary retirement not coming into effect on expiry of the period specified. What is further needed is that the concerned authority must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in B.J.Shelat's case and in Sayed Muzaffar Mir's case before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non-communication of acceptance should be treated as amounting to withholding of permission.
Further, in paragraph 18 it is observed and held as follows: "Rule 5.32(B)(1),in the present case, contemplates a 'notice to retire' and not a request seeding permission to retire. The further "request" contemplated by the sub-section is only for seeding exemption from the 3 months period. The proviso to sub-clause (2) makes a positive provision that "where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in sub-rule (1), the retirement shall become effective from the date of expiry of the period specified in sub-rule (1), the retirement shall become effective from the date of expiry of the said period. The case before us stands on a stronger footing than Dinesh Chandra Sangma's case so far as the employee is concerned. As already stated Rule 2.2 of Punjab Civil Service Rules Vol.II only deals with a situation of withholding or withdrawing pension to a person who has already retired."
(h)In H.P.M.C. V. Shri Suman Behari Sharma AIR 1996 Supreme Court 4353, the Hon'ble Supreme Court has held as follows:
"The Bye-law 3.8 of H.P. Horticultural Produce Marketing and processing Corporation Ltd Employees Service Bye-laws inter alia provides for voluntary retirement from service of corporation on completion of 25 years service or on attaining the age of 50 years whichever is earlier. The employee, however, has a right to make a request in that behalf and his request would become effective only if he is 'permitted' to retire. The words "may be .. permitted at his request" clearly indicate that the said clause does not confer on the employee a right to retire on completion of either 25 years service or on attaining the age of 50 years. It confers on the employee a right to make a request to permit him to retire. Obviously, if request is not accepted and permission is not granted the employee will not be able to retire as desired by him. The words "seek retirement" in para 5 thereof indicate that the right which is conferred by it is not the right to retire but a right to ask for retirement. The word "seek" implies a request by the employee and corresponding acceptance or permission by corporation. Therefore, there cannot be automatic retirement or snapping of service relationship on expiry of three months period."
(i)In Sarat Kumar Mohanty V. State of Orrisa and others (Full Bench) (Orissa High Court) 1995 (1) Service Law Reporter 314 at page 318 & 319 in paragraph 12 to 14 it is held thus:
"12.The legal submission advanced by Shri Das has merit in it because if a disciplinary proceeding against a judicial officer be pending, which can be drawn only by the High Court, the question whether the offer of voluntary retirement should be withheld or not,has to be decided in consultation with,or on recommendation of, the High Court for the simple reason that whether such an officer should continue in service and remain under the control of the High Court, which control would be lost on voluntary retirement, has to be basically decided by the High Court. Now, if in such a case, recommendation of the High Court is necessary, which as stated by the Constitution Bench in paragraph 40 of Dikshitulu, though "advisory", in substance and effect, is well high peremptory," the same result has to be in so far as withdrawal or rescission of voluntary retirement is concerned, in view of what has been stated in Section 21 of the General Clauses Act, according to which, for rescinding a notification, the same procedure must be followed which was done while issuing the notification inasmuch as this section requires that such a power must be exercised "in like manner and subject to the like sanction and conditions, if any,", which were existing when the notification was issued.
13.In this connection a submission has, however, been made by the learned Government Advocate that rescission of such an order cannot be demanded as a matter of right. We find force in this submission as it was stated by the apex Court in paragraph 7 of Jai Ram V.Union of India, AIR 1954 SC 584, as below: "......... It may be conceded that it is open to a servant, who had expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained, but he can be allowed to do so, so long as he continues in service and not after it has terminated." To the same effect is the observation in paragraph 5 of Raj Kumar V. Union of India, AIR 1969 SC 180 : [1968 SLR 730 (SC)]:
"... Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation, is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter."
We may finally refer to the well-known case of Union of India V. Gopal Chandra Misra (Commonly known as Satish Chandra's case), AIR 1978 SC 694 : [1974 (1) SLR 521 (SC)], in which Sarkaria, J., speaking for the majority, made the following observation in paragraph 51 of the judgment :- ".... It will bear repetition that the general principle is that in the 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 resignor. This general rule is equally appli- cable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot,-under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217(1) has a unilateral right, or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office......"
14.The above would show that a person like the one at hand had not been conferred with a right to ask for rescission or withdrawl of his order of voluntary retirement, as there is no law or rule permitting it."
(j)In S.Jagadeesan V. Ayya Nadar Janaki Ammal College and another AIR 1984 Supreme Court 1512, the Hon'ble Supreme Court in paragraph 3 has held as follows:
"Without entering into the controversy as to the meaning to be given to the words "otherwise terminated" in sub-section (1) of Section 19 of the Tamil Nadu Private Colleges (Regulation) Act, 1976, we set aside the judgment of the High Court and dismiss the writ petition filed by respondent No.1 with a direction that respondent No.1 may prefer an appeal to the prescribed authority under Section 37 of the Act. if so advised. If such an appeal is preferred within 30 days of the passing of this order, the prescribed authority shall entertain and decide the appeal on merits, without any objection as to limitation."
(k)In Ayya Nadar Janaki Ammal College represented by its Secretary, Sivakasi V. Pandian and others 1996-II-MLJ-345, it is held as follows: "Sec. 19 of the Act applies to all teachers and other persons employed in any private college. They may be permanent teachers or permanent employees or probationary teachers or employees . Sec. 19 prohibits that no such teachers or employees shall be dismissed removed or reduced in rank or their services shall otherwise be terminated except without the prior approval of the competent authority. On a perusal of Sec. 19 it is clear that except without the prior approval of the competent authority, there shall not be any removal, dismissal, or reduction in rank of any teachers or other persons employed in a private college or termination of their appointment. In other words, the prior approval of the competent authority is a sine qua non for the orders contemplated under Sec. 19 of the Act to take legal effect."
42.It is relevant for this Court to make a significant mention that the Government of Tamil Nadu in G.O.Ms.No.43, Finance (Pension) Department, dated 22.01.1991 has stated as follows:
"In partial modification of the orders issued in the Government order and Government letter first and second read above, the Government direct that -
i]Death-cum-Retirement Gratuity and family pension may be granted to the family of missing employee after two years instead of one year. ii]Family security Fund / Group Insurance scheme amount shall be withheld till the disappearance of the employee is definitely established in terms of the Indian Evidence Act etc."
43.In the copy of the Government Letter No.114392/Pension/87-1 dated 04.04.1988, from Joint Secretary to Government, Finance [Pension] Department, Fort St. George, Madras-9 the points are clarified as hereunder:
Sl.No. Points raised Clarifications issued
1. Whether the Counter signature of the It is enough if the police Police report of the Superintendent of report given by the Police/Commissioner of Police or a Station Officer in charge is report from the Superintendent of accepted.
police/Commissioner of Police is to be
2. Whether legal heirship certificate is Legal heirship Certificate to be insisted is necessary
3. The format in which Indemnity bond Necessary indemnity bond is to be given by the nominee / as prescribed in Form 25 dependents of the employees of Tamil Nadu Pension
Rules 1978 with suitable
necessary may be
44.In G.O.Ms.No.690, Finance [Pension] Department dated 24.10.1981 of the Government of Tamil Nadu in paragraph 3 has observed hereunder: "3.After careful examination of the various clarifications sought for in this regard, and as the very object of the Family Benefit Fund Scheme the Revised Group Insurance Scheme is to help the bereaved family members of the deceased employee who were dependent on the deceased for support, it has been decided that the rules relating to the making of nomination for the lumpsum grant may be modified making of more clear and specific. In partial modification of the orders issued in G.O. cited and the instructions issued in the Memorandum second cited, the Government pass the following further orders:-
(i)The nomination shall be made strictly in the order of members indicated in para 1 above;
(ii)Major sons [who were not dependent on the deceased for support]; Major brothers; Married daughters/sisters and other relative will not be eligible for the lumpsum grant under the scheme;
(iii)Employees who have no family shall be exempted from joining the Family Benefit Fund/Group Insurance Scheme as is allowed in the case of Fathers/Nuns in the Educational Institutions;
(iv)If none of the nominee/persons indicated in para1 above are alive, then the lumpsum grant under the scheme shall lapse to the Government /Organizations; and
(v)n case of no nomination, the lumpsum grant shall be paid to the eligible members in equal shares.
and further directed all employees governed by the scheme may be permitted to file a nomination afresh, within 3 months from the date of this order."
45.The Government of Tamil Nadu in G.O.Ms.No.478, Finance [Pension] Department, dated 04.06.1987, has, inter alia, issued directions and orders as specified hereunder:
"3.Government have carefully examined the decision of the Government of India and have decided to extend similar benefits to the Tamil Nadu Government Servants including the staff of local bodies and aided educational institutions. They accordingly direct that
(i)When an employee disappears leaving his family, the family can be paid in the first instance the amount of salary due; leave encashment due and the amount of General Provident Fund, having regard to the nomination made by the employee;
(ii)After the elapse of a pension of one year, other benefits both Death- cum-Retirement Gratuity/Family Pension may also be granted to the family.
4.The above benefits may be sanctioned by the administrative department of Secretariat after observing the following formalities:-
i)The family must lodge a report with the concerned police station and obtain a report that the employee has not been traced after all efforts had been made by the Police.
ii)An Indemnity Bond should be taken from the nominee/dependent of the employees that all payments will be adjusted against the payments due to the employee in case he appears on the scene and makes any claim.
5.The Government also direct that in case the disbursement of Death-cum- Retirement Gratuity is not effect within 3 months from the date of application the interest shall be paid at the rates applicable and responsibility for the delay fixed.
6.The orders shall take effect from the date of this order. However, all the pending cases can be settled with reference to the above orders.
7.The orders will also apply to the staff of local bodies and aided teaching institutions."
46.The Letter of the Government of Tamil Nadu Finance (Pension) Department No.66491/Pension/94-7, dated 27.03.1996 has issued the amendment to G.O.Ms.No.806 Finance [Pension] dated 21.09.1993, as regards the filing of nomination relating to Tamil Nadu Government Servants Family Security Fund/Group Insurance Scheme.
47.Pertinently, this Court refers to G.O.Ms.No.540 of Government of Tamil Nadu, Finance [Pension] Department, dated 05.07.1995 which refers to introduction of new Rule 49-A (after rule 49) of Tamil Nadu Pension Rules, 1978, which enjoins as follows:
"49-A. Benefits to the family of a disappearing Government Servant:- When a Government servant disappears leaving his family, the family of such Government servant shall be entitled immediately for the payment of dues of salary, leave encashment, General Provident Fund and Special Family pension-cum- Gratuity and after lapse of a period of one year of such disappearance for the payment of dues of Death-cum-retirement Gratuity and Family Pension in accordance with the nomination made by such Government servant, subject to the following conditions, namely -
(i)a complaint must have been lodged with the Police Station concerned and a report obtained that the Government servant has not been traced despite all efforts made by the police; and
(ii)An Indemnity Bond must have been executed by the nominee or dependents of such Government servant to the effect that all payments shall be adjusted against the payment due to the such Government servant in case he appears later and makes any claim."
48.Besides the above, this Court aptly points out the Letter No.21396- A/Pension/91-2 of Government of Tamil Nadu, Finance [Pension] Department, dated 09.04.1991 on the subject of grant of family pension and gratuity to the families, etc. of employees/ pensioners of Government, aided Educational Institutions and local bodies who disappear suddenly and whose whereabouts are not known, in and by which further instructions regarding the formalities to be observed, regulation of payment of family pension, gratuity etc. have been issued and the same runs as follows:
"(ii)The benefits to be sanctioned to the family of the missing employee will be based on and regulated by the emoluments drawn by him/her and the rules/orders applicable to him/her as on the last date he/she was on duty including authorised periods of leave. Family pension at normal/enhanced rates as may be applicable to the individual cases, will be payable to the families of missing employees. Family pension where sanctioned at Pre.1-6-88 rates to be revised and consolidated with effect from 1.6.88 in terms of G.O.Ms.No.810, Finance [PC] dated 09.08.1999 as amended from time to time. (iii)In the case of missing pensioners, the family pension at the rates indicated in the Pension Pay Order will be payable and may be authorised by the Head of the office concerned. Where the Pension Pay order does not contain this information, the Head of Office will take necessary action to sanction the family pension as due, as provided in para 1[i] and [ii] above.
(iv)Death gratuity will also be payable to the families, but not exceeding the amount which would have been payable as Retirement gratuity if the person had retired. The difference between the retirement Gratuity and death gratuity shall be subsequently payable after the death is conclusively established or on the expiry of seven years period from the date of missing. (v)The indemnity bond to be obtained for this purpose from the family members, etc. will be in the formats enclosed with this letter. Separate formats for use in the case of missing employees and missing pensioners have been prescribed."
49.In letter No.75868/Pension/87-1 dated 21.07.1987, the Government of Tamil Nadu, Finance [Pension] Department, Fort St. George, Madras-9 have issued the following amendment 'For the word 'Pension' occurring in para 3[ii] of G.O.Ms.No.478, Finance [Pension] dated 04.06.1987 read as 'period'.
50.Be that as it may, Section 107 of the Indian Evidence Act, 1872 speaks of 'burden of proving the death of a person known to have been alive within 30 years.' A human life shown to be in existence, at a certain point of time which as per Section 107 of the Indian Evidence Act should to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. However, 107 of the Act is subject to a provision of Section 108. In fact, Section 107 of the Indian Evidence Act as the effect of shifting the burden of establishing that the individual is dead on him who affirms the fact. However, Section 108 as the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. Section 108 presumption is a limited one restricted to presume the factum of death of an individual whose life or death is in issue.
51.The presumption under Section 108 of the Indian Evidence Act relates to the factum of death at the time when the question is raised and not at any particular antecedent time. There is no presumption in law as regards the cause and circumstance of the death as per decision Gnanamuth V. Anthoni AIR 1960 Madras 430. As per Section 108, the presumption of death can be made only if it is established at the time when the presumption is sought to be raised that the individual concerned was not heard of for 7 years by those who would naturally have heard of him, if he had been alive, as per decision Ram Rati Kauer V. Dwarka Prasad AIR 1967 SC at page 1134. Indeed, the presumption of civil death of a fictional one as per Section 108 of the Indian Evidence Act tantamounts to physical death in law for enabling the widow a right to file a suit as per decision AIR 1967 Orissa at page 70.
52.As far as the present case is concerned, the Petitioner's husband R.Ramaraj on 17.08.2001 was relieved from service on Voluntary Retirement by the 3rd Respondent/College by paying his 3 months salary in lieu of 3 months notice of course with a specific observation that the relieving order is subject to the approval of 1st Respondent/Director of Collegiate Education. The Petitioner's husband's three months salary of Rs.16,470/- challan file was sent by the 3rd Respondent/College on 11.01.2001 requesting the 2nd Respondent to approving the voluntary retirement of Petitioner's husband. The 2nd Respondent had rejected the 3rd Respondent's action in accepting 3 months notice salary as per Rc.No.7413/D2/98 dated 12.12.2001 mentioning the clarification issued by the 1st Respondent.
52.It is to be pointed out that when the Petitioner's husband had put in already 25 years of completed service and moreover, when the 3rd Respondent/College Committee on humanitarian grounds on 14.08.2001 had accepted the 3 months salary of Petitioner's husband in lieu of 3 months notice for voluntary retirement and also when the Petitioner's husband was relieved on 11.02.1995 by the 3rd Respondent, this Court is of the considered view that it is not open to the 3rd Respondent/College at a later point of time that too based on the letter of the 1st Respondent dated 13.08.2002 rejecting the recommendation of the college to permit the Petitioner's husband to go on voluntary retirement retrospectively without taking necessary action against him as per G.O.Ms.153, P & AR (FR III) dated 08.08.2000 to take action by means of resolution of the College Committee dated 27.03.2006 to dismiss the Petitioner's husband with effect from 11.02.1995.
54.As a matter of fact, the 3rd Respondent/College ought to have first taken action against the Petitioner's husband for his unauthorised absence for the period from 21.1.95 as per G.O.Ms.No.153, P & AR (FR III) dated 08.08.2000, well before permitting him to retire voluntarily on humanitarian grounds. But in the instant case on hand, the 3rd Respondent/College had not resorted to such a course of action. In law, the option is given to an employee to go for voluntary retirement. The 3rd Respondent/College through its College Committee by means of resolution on 14.08.2001 has accepted the request of Petitioner's husband to go on VRS and further has authorised the College Secretary to relieve her husband from service on voluntary retirement by receiving 3 months salary in lieu of 3 months notice on 10.02.1995. Indeed, when the Petitioner's husband's voluntary retirement was accepted by the 3rd Respondent/College/Employer, then, it is not open to the 1st Respondent or the 2nd Respondent, as the case may be, to withhold or recession of the voluntary retirement of the Petitioner's husband by placing reliance on the tenure of G.O.Ms.No.153, P & AR (FR III) dated 08.08.2000.
55.When the voluntary retirement of the Petitioner's husband was accepted by the 3rd Respondent/College by means of the College resolution dated 14.08.2001 no useful purpose would be served in directing the 3rd Respondent to take disciplinary action as per G.O.Ms.No.153 P & AR (FR III) dated 08.08.2000 and the same will be an otiose one.
56.Since the 3rd Respondent/College accepted the voluntary retirement of the Petitioner's husband, the dismissal action of the 3rd Respondent in dismissing the Petitioner's husband at a later point of time by means of a communication of the 1st Respondent are all of no avail and they are only non est in the eye of law, as opined by this Court.
57.In law, the proposal of an Employee (voluntary retirement) when accepted by an Employer an enforceable contract is concluded, as opined by this Court.
58.In the present case, the acceptance of voluntary retirement of Petitioner's husband is the subject matter of approval.Taking disciplinary action against Petitioner's husband for his unauthorised absence is not the approval that has been sought for by the 3rd Respondent/College Authority, in the considered opinion of this Court. Moreover, the issue of initiation of disciplinary proceedings as per the G.O.Ms.No.153 P & AR (FR III) dated 08.08.2000 cannot be gone into in the subject matter of approval sought for by the 3rd Respondent/College in so far as it relates to the Petitioner's husband.
59.In law, after acceptance of voluntary retirement by the 3rd Respondent/College on humanitarian grounds, there cannot be any initiation of disciplinary proceedings and any punishment being imposed on a person.
60.Another important vital fact to be taken into account of this Court, based on the peculiar facts and circumstances of the case, is that the Petitioner's husband superannuation was on 10.05.2004 on completion of 58 years in normal course. Suffice it for this Court to state that when the 3rd Respondent/College after permitting the Petitioner's husband to be relieved as a staff member from the service of college on voluntary retirement by receiving salary in lieu of 3 months notice on 10.02.1995 by means of passing a College Committee resolution on 14.08.2001, it cannot approbate or reprobate or take a Topsy-turvy stand based on the refusal of the 1st Respondent by means of a letter dated 13.08.2002 rejecting the recommendation submitted by the 3rd Respondent/College in permitting the Petitioner's husband to go on voluntary retirement retrospectively etc. Therefore, the 3rd Respondent/College Committee's action by a resolution dated 27.03.2006 to dismiss the Petitioner's husband with effect from 11.02.1995 the date on which her husband has absented from duty is per se illegal and considering the Petitioner's husband earlier mental illness and later on again becoming insane and vanishing from the house in the month of July and the same cannot stand a moment scrutiny in the eye of law. Also, the 1st Respondent's refusal to accord permission to the 3rd Respondent's College in permitting Petitioner's husband to go on voluntary retirement retrospectively by means of a communication dated 13.08.2002 stating that only after taking disciplinary proceedings against the Petitioner's husband his case can be considered for voluntary retirement is equally an invalid,illegal, unjust and unfair order. That apart, the reason assigned by the 1st Respondent in the said letter by citing G.O.Ms.No.153 dated 08.08.2000 for not permitting the Petitioner's husband to go on voluntary retirement is clearly unsustainable in the eye of law because the said communication does not refer to expressly or impliedly the factum of the 3rd Respondent College granting permission to the Petitioner's husband to go on voluntary retirement as per resolution dated 14.08.2001. Also, in the said letter, there is a reference to the G.O.Ms.No.153 P & AR (FR III) dated 08.08.2000 in and by which disciplinary proceedings will have to be initiated by the 3rd Respondent/College in regard to the Petitioner's husband's long unauthorised absence is not based on factual ground realities of the present case which float on the surface.
61.In the result, the Writ Petition is allowed, leaving the parties to bear their own costs. Accordingly, the impugned order of the 3rd Respondent/College dated 15.09.2006 is set aside. The 3rd Respondent /College is directed to pay the arrears of Salary, Leave Encashment, G.P.F. amount, Special Provident Fund, D.C.R.G. Fund, Family Benefit Fund as per rules relating to the Petitioner's husband to the Petitioner by scrupulously following the Government Orders, Letters/Circulars as envisaged by law. Inasmuch as the Petitioner's husband has been permitted by the 3rd Respondent to proceed on voluntary retirement as per College Committee's Resolution dated 14.08.2001, it is open to the 3rd Respondent/College to treat the Petitioner's husband's long unauthorised absence either as Leave on Loss of pay or without pay, as it deems fit and proper, in the manner known to law. If situation warrants the Petitioner is to execute an indemnity bond as specified in Government Letter No.21396-A/Pension /92-2 dated 09.04.1991.
1.The Director of Collegiate Education,
2.The Joint Director of Collegiate Education,
Madurai - 625 020.
Devanagar Arts College,
Arupukottai - 626 101.
4.The Secretary to Government of Tamil NaduDepartment of Higher Education,