Delhi High Court
Mohd. Aslam vs The Principal,Zakir Hussain Post ... on 14 January, 2010
Author: Indermeet Kaur
* 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.
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
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
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
