* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 14.01.2011
+ RSA No.143/2010
MOHD. ASLAM ...........Appellant
Through: Mr.Shahzad Khan, Advocate.
Versus
THE PRINCIPAL,
ZAKIR HUSSAIN POST GRADUATE EVENING COLLEGE,
(UNIVERSITY OF DELHI) ..........Respondent
Through: Mr.J.H.Jafri, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM No.12919/2010 (for exemption) Allowed subject to just exceptions.
RSA No.143/2010
1. This second appeal has impugned the judgment and decree dated 26.4.2010 which had endorsed the finding of the trial judge dated 28.9.2009 whereby the suit of the plaintiff seeking declaration and injunction was dismissed.
2. The plaintiff Mohd.Aslam had joined the respondent college i.e. the Zakir Hussain Post Graduate Evening College, Delhi University in the year 1976 as a Junior Assistant. He was promoted to Assistant; thereafter to Senior Assistant. He was at the relevant time working as a Section Officer in the Accounts Department. RSA No.143/2010 Page 1 of 4 Contention was that on 20.12.1996 the plaintiff submitted an application for voluntary retirement; on 23.12.1996 plaintiff was called in the office of the defendant who suggested to him that he should withdraw his application. At the same time the plaintiff moved an application for withdrawal of his application and handed it to the defendant. The original application of the defendant had been torn; the Principal i.e. the defendant advised him to continue with his job. On 26.5.1997, the plaintiff had applied for a four day leave. On the same day i.e. on 26.5.1997 the retirement of the plaintiff was prematurely accepted; the plaintiff was agitated by this communication. He sent a letter dated 02.6.1997 requesting the defendant not to proceed with the retirement of the plaintiff but to no avail. On 25.9.1997 the present suit was filed.
3. In the written statement, it was contended that the application of the plaintiff seeking voluntary retirement dated 20.12.1996 had been considered by the Principal who in the afternoon of 26.5.1997 accepted his retirement and this was communicated to the plaintiff vide this communication dated 26.5.1997.
4. Trial judge had framed four issues. On behalf of the plaintiff three witnesses had appeared into witness box. Suit of the plaintiff was dismissed.
5. In appeal this finding of the trial judge dated 28.02.2009 was endorsed.
6. This second appeal is yet at the admission stage. On behalf of the appellant it is urged that there was no authority with the Principal to accept his application for voluntary retirement; in fact, the Principal on 23.12.1996 had called the plaintiff in his chamber RSA No.143/2010 Page 2 of 4 and advised him not to proceed with this application on which date his original application had been torn. It was for this reason that the original application was not proved in the Court; only a certified copy had been exhibited. This supports the submission of the plaintiff that in fact it had transpired on 23.12.1996 that the application of the plaintiff seeking voluntary retirement will not be pressed. The Principal even otherwise had no authority to accept his request for retirement on 26.5.1997. Attention has been drawn to the Relevant Rules which are Model Rules of Governing Body of the College (E.No.66 dated 27.4.1963).
7. Perusal of the record shows that admittedly vide application dated 20.12.1996 (Ex.PW-2/D-1) the plaintiff had sought voluntary retirement. The Principal of the college had been summoned by the plaintiff into the witness box as his witness; he has been examined as PW-3. PW-3 has clearly stated that this plaintiff's application dated 20.12.1996 was never destroyed by him as had been averred by him. Vide (Ex.PW-2/D-2) letter dated 26.5.1997 his application seeking voluntary retirement had been accepted which was after the expiry of the three month notice period which had been mentioned in his application dated 20.12.1996. The reliance by the appellant on the aforenoted Rules to support his vehement contention that the Principal did not have the power to accept his application for voluntary retirement is misplaced; the Rules do not in any manner debar the Principal from accepting a request of an employee seeking voluntary retirement. The Rules which have been highlighted by the learned counsel for the appellant relate to appointment and removal which as per the appellant could not have been done by the Principal; acceptance of RSA No.143/2010 Page 3 of 4 the letter seeking voluntary retirement does not fall in that category.
8. The substantial questions of law have been formulated on page 12 of the memorandum of appeal; they read as follows:
"A. Whether the Respondent could proceed on a mere copy of an Application for voluntary retirement submitted by Appellant in haste to relieve the Appellant from his duty and in absence of the original of the said Application.
B. Whether the Ld.Courts below have illegally accepted the submission advanced by Respondent that the original of the said application was sent to Appellant himself and it is the Appellant who has misplaced the same.
C. Whether the Ld.Courts below failed to appreciate that even if without admitting it is assumed that it had surfaced that the Appellant had misplaced the original application, which amounts to destroying the official document, why no disciplinary proceedings were ever initiated against him by the respondent. D. Whether the Respondent acted illegally and in gross violation of the statutory provisions and discharged the Appellant hastily by exercising the power which was not vested in him."
9. Except the question mentioned at clause D the other questions raised by the appellant are all fact based. Even qua clause D no violation of the statutory provision has been pointed out. The Principal was competent to accept the request made by the employee which in this case was his request to opt for voluntary retirement with a three months notice. It was only after the expiry of the three months i.e. on 26.5.1997 that this request of the plaintiff was accepted.
10. No substantial question of law having arisen, this appeal is dismissed in limine.
INDERMEET KAUR, J.
JANUARY 14, 2011 nandan RSA No.143/2010 Page 4 of 4