IMPORTANT POINTS
(1) Voluntary retirement – Pending disciplinary proceedings if an application for voluntary retirement is submitted there would be no absolute right seeking for acceptance since employer if keen on proceeding with inquiry would be entitled not to consider application for voluntary retirement.
(2) Gratuity shall be payable if termination of employment is after 5 years of continuous service and such termination would include resignation as well.

JUDGMENT

The Court is convened through Video Conferencing.

A.S. Bopanna, J.

Leave granted.

2. The respondent herein was the Petitioner in S.B Civil Writ Petition No. 2839/2012 filed before the Rajasthan High Court. The brief facts that led to the filing of the Writ Petition is that respondent herein had claimed the retiral benefits of her late husband who was appointed in the post of conductor on 15.03.1979 at Alwar Depot of the Appellant Road Transport Corporation. The benefits were claimed on the basis that her husband be deemed to have voluntarily retired from service instead of having resigned.

3. In the course of service, respondent's husband had moved an application seeking voluntary retirement from service on 28.07.2005 indicating health reasons. No order was passed on the said application for voluntary retirement and the respondent's husband continued to remain in service.

4. Subsequently, the respondent's husband on 03.05.2006 submitted his resignation as he claimed to be under depression and his health condition had further deteriorated. The resignation was accepted by the authorities on 31.05.2006, he was relieved of his duties and the benefits were paid.

5. Thereafter, the respondent's husband is stated to have immediately submitted an application pointing out that he had erred in mentioning 'resignation' and he desired to retire in view of his earlier application for voluntary retirement. The application also mentioned that no decision had been taken by authorities on his first application dated 28.07.2005 and therefore he should be treated as having voluntarily retired with consequent retiral benefits. The respondent after her husband's death approached the High Court with such prayer.

6. The learned Single Judge held that the respondent's husband had moved an application indicating deteriorating health and forcing such employee to work would be an act of oppression. Additionally, it was held that the voluntary retirement application was not decided within the period prescribed as per the Clause 19- D(2) of the Pension Scheme and reliance was placed on Clause 18-D(2) of RSRTC Standing Orders as per which an employee of the Corporation who had rendered pensionable service was entitled to seek voluntary retirement. It held that the respondent's husband would be deemed to have retired even though he had moved another application terming his retirement as resignation in view of the law laid down in Sheel Kumar Jain vs. The New India Assurance Co. Ltd., (2012) 1 SLR 305. Thus, the appellants were directed to treat respondent's husband as having voluntarily retired and release the retiral benefits to which he was entitled.

7. Aggrieved, an appeal was filed by the appellants herein in D.B Special Appeal Writ No. 1261/2018. However, no infirmity was found by the Division Bench in the reasoning of the learned Single Judge and the learned Division Bench dismissed the appeal. The same has been assailed by the appellants herein in this appeal.

8. In the above background we have heard Dr. Ritu Bhardwaj, learned counsel for the appellants, Mr. S. Mahendran, learned counsel for the respondents and perused the appeal papers.

9. The short question that arises for consideration herein is as to whether the husband of the respondent had acquired an indefeasible right to seek for voluntary retirement from service and in that light whether the High Court was justified in arriving at the conclusion that the subsequent resignation dated 03.05.2006 submitted by the husband of the respondent be considered as an application for voluntary retirement and treat the cessation of the jural relationship of employer/employee under the provision for Voluntary Retirement.

10. In order to consider the above aspect, a perusal of the factual matrix in the instant case would indicate that the respondent's husband had joined the service of the Appellant Transport Corporation at Alwar Depot on 15.03.1979. The application seeking voluntary retirement was submitted on