1. Employee sought withdrawal of voluntary retirement notice before the effective date, which was rejected by authorities and subsequently by the Tribunal. (Para 3 )
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1997 Supreme(SC) 1257
SUPREME COURT OF INDIA
S. B. Majmudar, S. Saghir Ahmad
J. N. SRIVASTAVA, APPELLANT
Versus
UNION OF INDIA AND ANOTHER, RESPONDENTS.
Civil Appeals Nos. 6573-6574 of 1997 (Arising out of SLPs (C) Nos. 8500-8501 of 1997),
decided on September 22, 1997.
Important Points
An employee possesses locus poenitentiae to withdraw a voluntary retirement proposal before the effective date of retirement, regardless of whether the authority had previously accepted the notice.
Subject
Employment Law - Voluntary Retirement
Headnote
Retirement from Service - Whether appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him which was to come into effect from - It is true that this proposal was accepted by authorities - But thereafter before was reached appellant wrote a letter to withdraw his voluntary retirement proposal - This letter is - Said request permitting him to withdraw voluntary retirement proposal was not accepted by respondents by communication - Appellant therefore went to Tribunal but Tribunal gave him no relief and took view that voluntary retirement had come into force and appellant had given up charge of post as per his memo relinquishing charge and consequently he was estopped from withdrawing his voluntary retirement notice - In our view said reasoning of Tribunal cannot be sustained on facts of case - Held, Once request for cancellation of voluntary retirement was rejected by authority concerned and when retirement came into effect appellant had no choice but to give up charge of post to avoid unnecessary complications - He however approached Tribunal with main grievance centering round rejection of his request for withdrawal of voluntary retirement proposal - Tribunal therefore following decision of this Court ought to have granted him relief - Court accordingly allow these appeals and set aside orders of Tribunal as well as order of authorities and directed respondents to treat appellant to have validly withdrawn his proposal for voluntary retirement with effect from - Net result of this order is that appellant will have to be treated to be in service till date of his superannuation which is said to be somewhere in when he completed years of age - Respondent-authorities will have to make good to appellant all monetary benefits by treating him to have continuously worked till date of his actual superannuation in - This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly - However this will have to be subject to adjustment of any pension amount and other retirement benefits already paid to appellant in meantime up to date of his actual superannuation - It was submitted by learned Senior Counsel for respondent-authorities that no back salary should be allowed to appellant as appellant did not work and therefore on principle of no work no pay this amount should not be given to appellant - Appeal Allowed
Legal Category Hierarchy
Table of Contents
2. Whether an employee is estopped from withdrawing voluntary retirement after acceptance and whether the no work, no pay principle bars back salary when prevented from working. (Para 3 )
3. Relinquishing charge after a withdrawal request was rejected does not constitute estoppel, and the no work, no pay principle is inapplicable when the employer prevents work. (Para 3 )
4. An employee possesses locus poenitentiae to withdraw a proposal for voluntary retirement before the effective date of retirement, even if the proposal was previously accepted. (Para 3 )
5. Appeals allowed; orders set aside; appellant treated as in service until superannuation with all monetary benefits, arrears, and refixed pensionary benefits. (Para 3 )
6. Can an employee withdraw a voluntary retirement notice after it has been accepted by the authority?
Yes, an employee has locus poenitentiae to withdraw the proposal for voluntary retirement provided the withdrawal request is made before the actual date of retirement is reached. (Para 3 )
7. Does relinquishing charge of a post after the effective date of retirement preclude an employee from challenging the rejection of a withdrawal request?
No, if the employee relinquished charge only to avoid complications after their request to withdraw the retirement proposal was rejected, they are not estopped from seeking relief. (Para 3 )
8. Does the no work, no pay principle apply to back salary if the employee was ready to work but prevented by the employer?
No, the principle of no work, no pay does not apply when the employee was always ready and willing to work, but the employer did not allow them to do so. (Para 3 )
ORDER
1. Leave granted.
2. With the consent of learned counsel for the parties the appeals were heard finally.
3. The short question is whether the appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him on 3-10-1989 which was to come into effect from 31-1-1990. It is true that this proposal was accepted by the authorities on 2-11-1989. But thereafter before 31-1-1990 was reached, the appellant wrote a letter to withdraw his voluntary retirement proposal. This letter is dated 11-12-1989. The said request permitting him to withdraw the voluntary retirement proposal was not accepted by the respondents by communication dated 26-12-1989. The appellant, therefore, went to the Tribunal but the Tribunal gave him no relief and took the view that the voluntary retirement had come into force on 31-1-1990 and the appellant had given up the charge of the post as per his memo relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. In our view the said reasoning of the Tribunal cannot be sustained on the facts of the case. It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India (1987 Supp SCC 228 : 1988 SCC (L&S) 126 : (1987) 5 ATC 246). In view of the aforesaid decision of this Court it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31-1-1990. It is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26-12-1989 and when the retirement came into effect on 31-1-1990 the appellant had no choice but to give up the charge of the post to avoid unnecessary complications. He, however, approached the Tribunal with the main grievance centering round the rejection of his request for withdrawal of the voluntary retirement proposal. The Tribunal, therefore, following the decision of this Court ought to have granted him the relief. We accordingly, allow these appeals and set aside the orders of the Tribunal as well as the order of the authorities dated 26-12-1989 and directed the respondents to treat the appellant to have validly withdrawn his proposal for voluntary retirement with effect from 31-1-1990. The net result of this order is that the appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age. The respondent-authorities will have to make good to the appellant all monetary benefits by treating him to have continuously worked till the date of his actual superannuation in 1994. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. However, this will have to be subject to adjustment of any pension amount and other retirement benefits already paid to the appellant in the meantime up to the date of his actual superannuation. It was submitted by learned Senior Counsel for the respondent-authorities that no back salary should be allowed to the appellant as the appellant did not work and therefore, on the principle of "no work, no pay", this amount should not be given to the appellant. This submission of learned Senior Counsel does not bear scrutiny as the appellant was always ready and willing to work but the respondents did not allow him to work after 31-1-1990. The respondents are directed to make available all the requisite monetary benefits to the appellant as per the present order within a period of 8 weeks on the receipt of copy of this order at their end. Office shall send the same to the respondents at the earliest.
