Application for voluntary retirement cannot be treated as one for resignation.

Common Judgment:

N. Paul Vasanthakumar, J.

These writ appeals are directed against the order of the learned single Judge made in W.P.No.1464 of 2001 dated 23. 2003. W.A.No.2133 of 2003 is filed by the employee challenging the order denying backwages and also directing him to return the terminal benefits received, with 8.5% interest per annum. The Management of the State Bank of India, filed W.A.No.2945 of 2003 against the order of the learned single Judge in toto.

2. For the sake of convenience, in this judgment, the parties will be referred according to their ranks in the writ petition.

3. The brief facts necessary for disposal of the writ appeals are as follows.

.(i) Petitioner was temporarily appointed as Watchman in the respondent Bank on 11. 1966 at Bangalore main branch and he was made permanent part-time sub-staff on 9. 1974 and posted at Jaya Nagar Second Block Branch. Petitioner was made as full-time Messenger on 6. 1980 and on 18. 1993 he was appointed as Duftry at Bangalore Local Head Office and was posted as Messenger on 11. 1986 at Kamanthotty branch at Dharmapuri. While the impugned order in the writ petition was passed, the petitioner was serving in the Tamil Nadu Region.

.(ii) The case of the petitioner is that he rendered continuous service as stated above and by letter dated 27. 1999 and 9. 1999 he requested the Bank to permit him to go on voluntary retirement. The third respondent sent a letter to the first respondent on 17. 1999 and stated that the petitioner had completed 25 years of service and is having pensionable service of 20 years. However, the petitioner received a letter from the third respondent dated 18. 1999 stating that the petitioner can opt for voluntary retirement scheme only after completion of the pensionable service, and as the petitioner has not completed the required year of service, his request for voluntary retirement will be treated as resignation from service with effect from 30.9.1999.

(iii) On 29. 1999 the petitioner sent a reply and stated that he is willing to go only on voluntary retirement and his request cannot be treated as resignation. However, by order dated 30.9.1999, the respondents confirmed the original order dated 18. 1999 and treated the petitioners request for voluntary retirement as one of resignation.

.(iv) Aggrieved by the said communication dated 18. 1999 and 19. 1999, petitioner has filed W.P.No.1464 of 2001 on the ground that the petitioners request was only to permit him to go on voluntary retirement and the same cannot be treated as resignation unilaterally by the respondents and by doing so, the respondents are depriving the petitioner from receiving pension.

.(v) It is also explained in the affidavit that he has chosen to challenge the said orders in January, 2001 as he was having no means to prosecute the matter immediately and therefore he has prayed for condoning the delay in filing the writ petition.

.3. The respondents filed counter affidavit wherein it is stated that the writ petition is liable to be dismissed on the ground of delay and laches. According to the respondents, petitioner was given permanent employment only from 6. 1981 and hence he is not eligible for pension and other service benefits prior to the said date. Apart from that, the petitioner absented for about 714 days, out of which 217 days was without any sanction of leave and the said period will not be counted for total service and therefore the petitioners period of pensionable service is less than 20 years. It is the case of the respondents that on 27. 1999 petitioner submitted application to quit his services from 30.9.1999 stating that he has put in more than 25 years of service and prayed for considering his request for voluntary retirement. The third respondent, after scrutiny of the application, sent a communication on 18. 1999 stating that the petitioner is not entitled to go on voluntary retirement and the Bank will process the application treating the sam