Madhya Pradesh High Court
Shivaji Pandey vs The State Of Madhya Pradesh on 16 February, 2022
Author: Sheel Nagu
IN THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU & HON'BLE SHRI JUSTICE
PURUSHAINDRA KUMAR KAURAV
WRIT PETITION No. 19641 of 2020
Between:-
SHIVAJI PANDEY S/O LATE SHRI BALA
PRASAD PANDEY , AGED ABOUT 59 YEARS,
OCCUPATION: READER GRADE I POSTED AT
PRESENT RECORD ROOM (MAALKHANA)
DISTRICT COURT SATNA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI N.S. RUPRAH, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY LAW AND LEGISLATIVE
DEPARTMENT MANTRALAYA VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. DISTRICT AND SESSIONS JUDGE SATNA DISTT.
SATNA (MADHYA PRADESH)
.....RESPONDENTS
SHRI VIKRAM JOHRI, PANEL LAWYER FOR RESPONDENT NO.1
AND SHRI SIDDHARTH SETH, ADVOCATE FOR RESPONDENT
NO.2
--------------------------------------------------------------------------------------------------------
Reserved on : 06.12.2021
Passed on : 16.02.2022
WP. No.19641 of 2020
- 2 -
PER : SHEEL NAGU, J.
ORDER
This petition filed under Article 226 of the Constitution of India
assails the legality, validity and propriety of order dated 03.12.2020
(Annexure P/1) passed by District and Sessions Judge, Satna accepting
application of petitioner dated 08.10.2020, voluntarily retiring him from the
post of Reader Grade-I with effect from 03.12.2020 by invoking the
provisions of Rule 42(1)(a) of M.P. Civil Services (Pension) Rules, 1976 and
Rule 56 of the Fundamental Rules.
2. Learned counsel for rival parties are heard on the question of admission as
well as final disposal.
3. Bare facts giving rise to present litigation is that petitioner who was
substantively holding the post of Reader Grade I in the establishment of
District and Sessions Judge, Satna, was transferred from the establishment of
Civil Judge Class-I, Amarpatan, District Satna to Maalkhana Section, Satna
as Malkhana Nazir.
4. Prior to the said transfer, an accident took place where the wife of
petitioner sustained grievous injury as a result of which the petitioner
remained absent from duty for reasons alleged by him to be compelling and
beyond his control. The petitioner alleges that he had joined pursuant to the
transfer but the employer disputes this fact. Correspondence were exchanged
between the petitioner and employer, which is evident from Annexure P/5 to
Annexure P/8 which were followed by issuance of a show cause notice dated
26.09.2020 (Annexure P/9). The show cause notice asked the petitioner to
explain as to why the petitioner unilaterally relieved himself pursuant to the
transfer without taking authorization from the Competent Authority and also
unilaterally submitted his joining without furnishing fitness report under the
Covid-19 protocol.
WP. No.19641 of 2020
- 3 -
5. The show cause notice alleged that the aforesaid lapses amounted to
misconduct and asked the petitioner to submit his explanation failing which
ex-parte action would be taken. Petitioner submitted various explanations
vide Annexure P/10 and Annexure P/11 which were followed by another
show cause notice dated 03.10.2020 vide Annexure P/12 reiterating the stand
of the employer in the earlier show cause notice Annexure P/9 asking the
petitioner to show cause as to why disciplinary action be not taken against
him. Thereafter, yet another show cause notice dated 03.10.2020 was issued
asking the petitioner to explain as to why 08 days period i.e. from
18.09.2020 to 27.09.2020 be not treated as leave without pay. The petitioner
vide Annexure P/14 responded to these show cause notices. Thereafter the
petitioner preferred an application vide Annexure P/16 explaining the
compelling circumstances faced which impelled him to remain absent or
unwell. The said reply vide Annexure P/16 runs in five pages containing the
alleged facts and circumstances which, according to the petitioner, were
beyond his control leading to his absence/being unwell. Pertinently, in this
reply containing five pages, the petitioner at the end of the reply mentioned
thus:
^^5& ;g fd mijksDr izkFkZuk ij fopkj dj izkFkhZ ds lkFk U;k; fd;k tk;
vU;Fkk mijksDr ifjfLFkfr;ksa esa izkFkhZ R;kx i= nsuk pkgrk gSA
vLrq ekuuh; egksn; ls fuosnu gS fd mijksDr of.kZr ifjfLFkfr ,oa izkFkZuk
ij lgkuqHkwfr iwoZd fopkj dj U;k; fd;k tk;A vU;Fkk izkFkhZ bu ifjfLFkfr;ksa
esa R;kx i= nsuk pkgrk gSA ¼LoSfPNd lsok fuo`fRr½^fu;ekuqlkj*A**
6. From the above, it is evident that the said reply Annexure P/16 was a
comprehensive one detailing the circumstances which compelled the
petitioner to remain absent or unwell and thus was to the effect of explaining
his conduct by denying the allegation in the show cause notices. After
explaining these facts and circumstances, the petitioner at the end expressed
that his reply does not find favour with the employer then this reply be
treated to be his voluntary retirement. Thereafter, another order was passed
WP. No.19641 of 2020
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on 22.10.2020 vide Annexure P/17 transferring the petitioner from Satna to
Chitrakoot, District Satna.
7. Treating the aforesaid reply Annexure P/16 as an application for
voluntary retirement, the respondent-employer No.2 passed impugned order
Annexure P/1 voluntarily retiring the petitioner w.e.f. 03.12.2020.
8. Thereafter, vide Annexure P/19 dated 05.12.2020, petitioner explaining
the physical and mental stress under which he was placed, sought to
withdraw his prayer made for voluntary retirement vide Annexure P/16
dated 08.10.2020.
9. In the backdrop of aforesaid factual matrix, petitioner is before this Court
assailing the order of voluntary retirement.
10. Learned counsel for the employer on the other hand submits that it was
the petitioner who with open eyes applied for voluntary retirement and
therefore, in terms of the statutory rules, the same was rightly accepted by
the employer. Learned counsel for the respondents has relied upon the
decision of the Apex Court in the case of M/s New Victoria Mills vs. Srikant
Arya, 2021 SCC Online SC 808 and the Division Bench decision of
Bombay High Court passed in WP No.2442/2019 (Gajanan S/o Siddappa
Maitri vs. Union of India and others) rendered on 26.04.2019.
11. On the other hand, Shri N.S. Ruprah, learned counsel for the petitioner
has relied upon 2003 (1) SCC 701 (Dr. Prabha Atri v. State of U.P.) to
contend that the respondents fell in grave error of law in treating the
application Annexure P/16 to be an application for voluntary retirement.
Learned counsel for the petitioner Shri Ruprah submits that Annexure P/16
was a representation detailing the reason justifying absent or being unwell
and therefore was infact an explanation and denial to the show cause notice.
It is further submitted that since the application Annexure P/16 was not
unequivocal and unconditional, the same cannot be treated as an application
for voluntary retirement.
WP. No.19641 of 2020
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12. Bare perusal of the application Annexure P/16 dated 08.10.2020 which is
being treated as an application for voluntary retirement by the employer, it is
evident as daylight and the same is essentially an explanation to the show
cause notices issued earlier. The petitioner after stating the alleged
compelling reason faced by him arising out of the unfortunate accident
which led to grievous injury to his wife and subsequent events in which
petitioner was unwell, pleaded that in case the explanation is not accepted
then he should be voluntarily retired. This application vide Anenxure P/16
can at best be treated as a conditional and an equivocal application for
voluntary retirement which ought not to have been acted upon by the
employer by invoking Rule 42(1)(a) read with Clause 56 of the Fundamental
Rules. It is settled principle of law in service jurisprudence that an
application for voluntary retirement should not only reflect the intention to
voluntarily retire in clear terms but also should be unconditional. This Court
is supported in its view by the decision of the Apex Court as relied upon by
learned counsel for the petitioner in the case of Dr. Prabha Atri (supra)
wherein it has been held as under:
"10. We have carefully considered the submissions of the
learned counsel appearing on either side, in the light of the
materials and principles, noticed supra. This is not a case
where it is required to consider as to whether the
relinquishment envisaged under the rules and conditions of
service is unilateral or bilateral in character but whether
the letter dated 9-1-1999 could be treated or held to be a
letter of resignation or relinquishment of the office, so as to
sever her services once and for all. The letter cannot be
construed, in our view, to convey any spontaneous intention
to give up or relinquish her office accompanied by any act
of relinquishment. To constitute a resignation, it must be
unconditional and with an intention to operate as such. At
best, as observed by this Court in the decision in P.K.
Ramachandra Iyer [(1984) 2 SCC 141 : 1984 SCC (L&S)
214] it may amount to a threatened offer more on account of
exasperation, to resign on account of a feeling of frustration
born out of an idea that she was being harassed
unnecessarily but not, at any rate, amounting to a
resignation, actual and simple. The appellant had put in
about two decades of service in the hospital, that she was
WP. No.19641 of 2020
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placed under suspension and exposed to disciplinary
proceedings and proposed domestic enquiry and she had
certain benefits flowing to her benefit, if she resigns but yet
the letter dated 9-1-1999 does not seek for any of those
things to be settled or the disciplinary proceedings being
scrapped as a sequel to her so-called resignation. The
words with immediate effect in the said letter could not be
given undue importance dehors the context, tenor of
language used and the purport as well as the remaining
portion of the letter indicating the circumstances in which it
was written. That the management of the hospital took up
such action forthwith, as a result of acceptance of the
resignation is not of much significance in ascertaining the
true or real intention of the letter written by the appellant on
9-1-1999. Consequently, it appears to be reasonable to view
that as in the case reported in P.K. Ramachandra Iyer
[(1984) 2 SCC 141 : 1984 SCC (L&S) 214] the respondents
have seized an opportunity to get rid of the appellant the
moment they got the letter dated 9-1-1999, without due or
proper consideration of the matter in a right perspective or
understanding of the contents thereof. The High Court also
seems to have completely lost sight of these vital aspects in
rejecting the writ petition.
11. For all the reasons stated above, the order of the High
Court under challenge in this appeal is set aside and the
appeals are allowed. The communication dated 9-1-1999
purporting to accept a non-existent resignation is set aside.
But, the respondent hospital authorities shall be at liberty to
pursue the disciplinary proceedings initiated against her in
accordance with law. No costs."
13. From the aforesaid analysis of facts and testing the same on the anvil of
the law laid down, this Court has no manner of doubt that the respondents
committed an illegality in treating Annexure P/16 dated 08.10.2020 as an
application for voluntary retirement.
14. The judgment relied upon by the employer are of no avail since the
decision of the Division Bench of Bombay High Court in the case of
Gajanan(supra) is on the point that once an application for voluntary
retirement is submitted, the same cannot be withdrawn without the leave of
the employer whereas in the case of Srikant Arya(supra), the Apex Court
was dealing with the facts situation of applicability or non-applicability of
voluntary retirement scheme where rights and liabilities of the parties therein
were governed by the terms of the scheme itself.
WP. No.19641 of 2020
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15. Consequently, this Court deems it appropriate to allow this petition in the
following terms:
(i) A writ of certiorari is issued in favour of the petitioner quashing
Annexure P/1 dated 03.12.2020.
(ii) A writ of mandamus is issued directing the respondents to reinstate
the petitioner in service provided petitioner has not already attained
the age of superannuation.
(iii) Petitioner shall be entitled to all consequential benefits including
seniority, pay-fixation, arrears of pay and allowance or/and pension, as
the case may be, which would have been due to him as if the
impugned order had not been passed.
(iv) The aforesaid directions be complied with and necessary payment
be made within a period of 60 days from the date of communication of
this order.
(v) The employer however is at liberty to proceed on the disciplinary
side against the petitioner either under the M.P. Civil Services (CCA)
Rules, 1966 or the M.P. Pension Rules, 1976, as the case may be,
provided law permits.
(vi) Petitioner shall be entitled to cost of this petition which is
quantified at Rs.5,000/- to be deposited through digital transfer in the
bank account of the petitioner within one month from the date of
communication of this order, failing which this matter be listed as
PUD for execution qua cost.
(Sheel Nagu) (Purushaindra Kumar Kaurav)
Judge Judge
YS
Digitally signed by YOGESH KUMAR SHIRVASTAVA
Date: 2022.02.17 15:35:33 +05'30'
