whether the husband of the respondent had acquired an indefeasible right to seek for voluntary
retirement from service ?
and in that light
whether the High Court was justified in arriving at the conclusion that the subsequent resignation dated 03.05.2006 submitted by the husband of the respondent be considered as an application for voluntary retirement and treat the cessation of the jural relationship of employer/employee under the provision for Voluntary Retirement.
Apex court held that
when the application for voluntary retirement was filed on 28.07.2005 and had not been favourably considered by the employer, instead of submitting the resignation on 03.05.2006, if any legal right was available the appropriate course ought to have been to seek for acceptance of the application by initiating appropriate legal proceedings. Instead the respondent’s husband had yielded to the position of nonacceptance of the application for voluntary retirement and has thereafter submitted his resignation. The acceptance of the resignation was acted upon by receiving the terminal benefits. If that be the position, when the writ petition was filed belatedly in the year 2012 and that too after the death of the employee who had not raised any grievance during his life time, consideration of the prayer made by the respondent wasnot justified. The High Court has, therefore, committedan error in passing the concurrent orders.
2020[4]Advocatemmmohan Apex Court Cases 9
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2236 OF 2020
(Arising out of SLP (Civil) No.5650 of 2019)
Rajasthan State Road Transport .… Appellant(s)
Corporation Ltd. & Ors.
Versus
Smt. Mohani Devi & Anr. …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
Leave granted.
2. The respondent herein was the Petitioner in S.B
Civil Writ Petition No. 2839/2012 filed before the
Rajasthan High Court. The brief facts that led to the filing
of the Writ Petition is that respondent herein had claimed
the retiral benefits of her late husband who was
appointed in the post of conductor on 15.03.1979 at
Page 1 of 13
Alwar Depot of the Appellant Road Transport
Corporation. The benefits were claimed on the basis that
her husband be deemed to have voluntarily retired from
service instead of having resigned.
3. In the course of service, respondent’s husband had
moved an application seeking voluntary retirement from
service on 28.07.2005 indicating health reasons. No
order was passed on the said application for voluntary
retirement and the respondent’s husband continued to
remain in service.
4. Subsequently, the respondent’s husband on
03.05.2006 submitted his resignation as he claimed to be
under depression and his health condition had further
deteriorated. The resignation was accepted by the
authorities on 31.05.2006, he was relieved of his duties
and the benefits were paid.
5. Thereafter, the respondent’s husband is stated to
have immediately submitted an application pointing out
that he had erred in mentioning ‘resignation’ and he
Page 2 of 13
desired to retire in view of his earlier application for
voluntary retirement. The application also mentioned that
no decision had been taken by authorities on his first
application dated 28.07.2005 and therefore he should be
treated as having voluntarily retired with consequent
retiral benefits. The respondent after her husband’s
death approached the High Court with such prayer.
6. The learned Single Judge held that the
respondent’s husband had moved an application
indicating deteriorating health and forcing such employee
to work would be an act of oppression. Additionally, it
was held that the voluntary retirement application was
not decided within the period prescribed as per the
Clause 19 D(2) of the Pension Scheme and reliance was
placed on Clause 18D(2) of RSRTC Standing Orders as
per which an employee of the Corporation who had
rendered pensionable service was entitled to seek
voluntary retirement. It held that the respondent’s
husband would be deemed to have retired even though
he had moved another application terming his retirement
Page 3 of 13
as resignation in view of the law laid down in Sheel
Kumar Jain vs. The New India Assurance Co. Ltd.
2012 (1) SLR 305. Thus, the appellants were directed to
treat respondent’s husband as having voluntarily retired
and release the retiral benefits to which he was entitled.
7. Aggrieved, an appeal was filed by the appellants
herein in D.B Special Appeal Writ No. 1261/2018.
However, no infirmity was found by the Division Bench in
the reasoning of the learned Single Judge and the learned
Division Bench dismissed the appeal. The same has been
assailed by the appellants herein in this appeal.
8. In the above background we have heard Dr. Ritu
Bhardwaj, learned counsel for the appellants, Mr. S.
Mahendran, learned counsel for the respondents and
perused the appeal papers.
9. The short question that arises for consideration
herein is as to whether the husband of the respondent
had acquired an indefeasible right to seek for voluntary
retirement from service and in that light whether the
Page 4 of 13
High Court was justified in arriving at the conclusion that
the subsequent resignation dated 03.05.2006 submitted
by the husband of the respondent be considered as an
application for voluntary retirement and treat the
cessation of the jural relationship of employer/employee
under the provision for Voluntary Retirement.
10. In order to consider the above aspect, a perusal of
the factual matrix in the instant case would indicate that
the respondent’s husband had joined the service of the
Appellant Transport Corporation at Alwar Depot on
15.03.1979. The application seeking voluntary retirement
was submitted on 28.07.2005 by which period the
respondent’s husband no doubt had put in more than 25
years of service. Insofar as the eligibility to apply seeking
voluntary retirement in view of the completed length of
service, the respondent’s husband had acquired such
right. The Appellant Transport Corporation however, did
not think it appropriate to accept the application and
grant the voluntary retirement. In that circumstance the
husband of the respondent submitted his resignation on
Page 5 of 13
03.05.2006 which was accepted by the Appellant
Transport Corporation and was relieved on 31.05.2006.
The respondent contends that immediately thereafter an
application was made indicating that the word
‘resignation’ was inadvertently mentioned and the
intention of the respondent’s husband was to renew his
request for voluntary retirement. However, the
consideration of such subsequent application by the
Appellant Transport Corporation did not arise and as
indicated, the respondent’s husband had been relieved on
31.05.2006 and all the service benefits payable in respect
of an employee who had resigned from service was paid,
which was accepted by the respondent’s husband. The
undisputed position is also that the respondent’s
husband subsequently died on 14.04.2011. It is
subsequent to the death of the husband, the respondent
had filed the writ petition before the High Court of
judicature for Rajasthan, Bench at Jaipur in S.B. Civil
Writ Petition No.2839/2012. The learned Single Judge
while considering the case of the respondent merely took
Page 6 of 13
note of the legal position which had been enunciated by
this Court in the facts of those cases which had been
referred and with a bare reference to Clause 19D(2) of the
Rules arrived at the conclusion that the application for
voluntary retirement was deemed to have been accepted
and therefore, directed that the appellants to treat the
respondent’s husband to have retired from service on the
date he was relieved and pay the retiral benefits. The
Division Bench has reiterated the said position.
11. Having heard the learned counsel for the parties,
we find that the factual aspects which were relevant for
decision making in the instant case has not been referred
by the High Court during the course of its order but has
merely assumed that the voluntary retirement application
should be deemed to have been accepted when there was
no rejection. As noticed from the objection statement
filed by the respondent herein herself, the right to seek
for voluntary retirement is stipulated in Rule 50 of
Rajasthan Civil Services Pension Rules, 1996. As
indicated above, since the same provides for 20 years of
Page 7 of 13
qualifying service, the respondent’s husband had
qualified to apply. However, what is relevant to take note
is that subRule(2) thereof provides that the notice of
voluntary retirement given by the employee shall require
acceptance by the appointing authority. In the instant
case, the undisputed position is that there was no
acceptance and in that circumstance the husband of the
respondent had submitted his resignation on 03.05.2006.
Though the High Court has indicated deemed
acceptance, the same would not be justified in the
instant facts since the position which has not been taken
note by the High Court is that as on the date when the
husband of the respondent had made the application for
voluntary retirement on 28.07.2005 the husband of the
respondent had already been issued ChargeSheets
bearing No.7352 dated 16.12.2004 and bearing No.4118
dated 11.07.2005 alleging misconduct. Though the
respondent, through the objection statement seeks to
contend that the charge alleged against her husband was
not justified, that aspect of the matter would not be
Page 8 of 13
germane to the present consideration since the position
of law is well established that pending disciplinary
proceedings if an application for voluntary retirement is
submitted there would be no absolute right seeking for
acceptance since the employer if keen on proceeding with
the inquiry would be entitled not to consider the
application for voluntary retirement. Hence there would
be no obligation to accept. In the instant facts the
proceedings relating to the charge sheet was taken
forward and completed through the final order dated
03.09.2005. The punishment of withholding of the
increment was imposed. In such circumstance the nonconsideration of the application for voluntary retirement
would be justified.
12. Be that as it may, as noted the inquiry had been
completed and thereafter when the respondent’s husband
submitted the resignation on 03.05.2006, the same was
processed, accepted, he was relieved on 31.05.2006 and
the payment of terminal benefits were made which had
been accepted by him. During his lifetime up to
Page 9 of 13
14.04.2011 the husband did not raise any issue with
regard to the same. It is only thereafter the respondent
has filed the writ petition before the High Court. Primarily
it is to be noticed that when the application for voluntary
retirement was filed on 28.07.2005 and had not been
favourably considered by the employer, instead of
submitting the resignation on 03.05.2006, if any legal
right was available the appropriate course ought to have
been to seek for acceptance of the application by
initiating appropriate legal proceedings. Instead the
respondent’s husband had yielded to the position of nonacceptance of the application for voluntary retirement
and has thereafter submitted his resignation. The
acceptance of the resignation was acted upon by
receiving the terminal benefits. If that be the position,
when the writ petition was filed belatedly in the year
2012 and that too after the death of the employee who
had not raised any grievance during his life time,
consideration of the prayer made by the respondent was
Page 10 of 13
not justified. The High Court has, therefore, committed
an error in passing the concurrent orders.
13. The learned counsel for the respondent would
submit that even if it is a case of resignation the deceased
husband of the respondent was entitled to the payment of
gratuity as he had put in the qualifying service. The
learned counsel for the appellant would contend that the
gratuity amount had been paid. In that regard, the
reference made to para 9 of the writ appeal filed before
the High Court would however indicate that though
reference is made to the payment disbursed to the
respondent’s husband while accepting the resignation,
the same does not disclose that the gratuity amount has
been paid. Further, in the appeal filed before this Court
the appellants have sought to justify the nonpayment of
the gratuity as the husband of the respondent had
resigned from service. As rightly pointed out by the
learned counsel for the respondents, Section 4(1)(b) of the
Payment of Gratuity Act, 1972 provides that the gratuity
shall be payable if the termination of employment is after
Page 11 of 13
5 years of continuous service and such termination
would include resignation as well. In that view, if the
gratuity amount has not been paid to the respondent’s
husband, the liability to pay the same would subsist and
the respondent No.1 will be entitled to receive the same
in accordance with the provisions of the Act. In that
regard it is directed that the appellants shall accordingly
calculate the gratuity and pay the same to the
respondent No.1, if already not paid. Such payment shall
be made within four weeks from this date.
14. In the result, the appeal is allowed. The judgment
dated 19.11.2018 passed in D.B. Special Appeal(W)
No.1261/2018 upholding the order dated 01.11.2017 in
S.B. Civil Writ Petition No.2839 of 2012 is set aside. The
gratuity amount as directed above shall be paid to
respondent No.1 in terms of the provisions of the
Payment of Gratuity Act, 1972 within four weeks from
this date.
Page 12 of 13
15. Pending application, if any, shall stand disposed of.
………….…………….J.
(R. BANUMATHI)
………….…………….J.
(A.S. BOPANNA)
New Delhi,
April 15, 2020
Page 13 of 13
retirement from service ?
and in that light
whether the High Court was justified in arriving at the conclusion that the subsequent resignation dated 03.05.2006 submitted by the husband of the respondent be considered as an application for voluntary retirement and treat the cessation of the jural relationship of employer/employee under the provision for Voluntary Retirement.
Apex court held that
when the application for voluntary retirement was filed on 28.07.2005 and had not been favourably considered by the employer, instead of submitting the resignation on 03.05.2006, if any legal right was available the appropriate course ought to have been to seek for acceptance of the application by initiating appropriate legal proceedings. Instead the respondent’s husband had yielded to the position of nonacceptance of the application for voluntary retirement and has thereafter submitted his resignation. The acceptance of the resignation was acted upon by receiving the terminal benefits. If that be the position, when the writ petition was filed belatedly in the year 2012 and that too after the death of the employee who had not raised any grievance during his life time, consideration of the prayer made by the respondent wasnot justified. The High Court has, therefore, committedan error in passing the concurrent orders.
2020[4]Advocatemmmohan Apex Court Cases 9
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2236 OF 2020
(Arising out of SLP (Civil) No.5650 of 2019)
Rajasthan State Road Transport .… Appellant(s)
Corporation Ltd. & Ors.
Versus
Smt. Mohani Devi & Anr. …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
Leave granted.
2. The respondent herein was the Petitioner in S.B
Civil Writ Petition No. 2839/2012 filed before the
Rajasthan High Court. The brief facts that led to the filing
of the Writ Petition is that respondent herein had claimed
the retiral benefits of her late husband who was
appointed in the post of conductor on 15.03.1979 at
Page 1 of 13
Alwar Depot of the Appellant Road Transport
Corporation. The benefits were claimed on the basis that
her husband be deemed to have voluntarily retired from
service instead of having resigned.
3. In the course of service, respondent’s husband had
moved an application seeking voluntary retirement from
service on 28.07.2005 indicating health reasons. No
order was passed on the said application for voluntary
retirement and the respondent’s husband continued to
remain in service.
4. Subsequently, the respondent’s husband on
03.05.2006 submitted his resignation as he claimed to be
under depression and his health condition had further
deteriorated. The resignation was accepted by the
authorities on 31.05.2006, he was relieved of his duties
and the benefits were paid.
5. Thereafter, the respondent’s husband is stated to
have immediately submitted an application pointing out
that he had erred in mentioning ‘resignation’ and he
Page 2 of 13
desired to retire in view of his earlier application for
voluntary retirement. The application also mentioned that
no decision had been taken by authorities on his first
application dated 28.07.2005 and therefore he should be
treated as having voluntarily retired with consequent
retiral benefits. The respondent after her husband’s
death approached the High Court with such prayer.
6. The learned Single Judge held that the
respondent’s husband had moved an application
indicating deteriorating health and forcing such employee
to work would be an act of oppression. Additionally, it
was held that the voluntary retirement application was
not decided within the period prescribed as per the
Clause 19 D(2) of the Pension Scheme and reliance was
placed on Clause 18D(2) of RSRTC Standing Orders as
per which an employee of the Corporation who had
rendered pensionable service was entitled to seek
voluntary retirement. It held that the respondent’s
husband would be deemed to have retired even though
he had moved another application terming his retirement
Page 3 of 13
as resignation in view of the law laid down in Sheel
Kumar Jain vs. The New India Assurance Co. Ltd.
2012 (1) SLR 305. Thus, the appellants were directed to
treat respondent’s husband as having voluntarily retired
and release the retiral benefits to which he was entitled.
7. Aggrieved, an appeal was filed by the appellants
herein in D.B Special Appeal Writ No. 1261/2018.
However, no infirmity was found by the Division Bench in
the reasoning of the learned Single Judge and the learned
Division Bench dismissed the appeal. The same has been
assailed by the appellants herein in this appeal.
8. In the above background we have heard Dr. Ritu
Bhardwaj, learned counsel for the appellants, Mr. S.
Mahendran, learned counsel for the respondents and
perused the appeal papers.
9. The short question that arises for consideration
herein is as to whether the husband of the respondent
had acquired an indefeasible right to seek for voluntary
retirement from service and in that light whether the
Page 4 of 13
High Court was justified in arriving at the conclusion that
the subsequent resignation dated 03.05.2006 submitted
by the husband of the respondent be considered as an
application for voluntary retirement and treat the
cessation of the jural relationship of employer/employee
under the provision for Voluntary Retirement.
10. In order to consider the above aspect, a perusal of
the factual matrix in the instant case would indicate that
the respondent’s husband had joined the service of the
Appellant Transport Corporation at Alwar Depot on
15.03.1979. The application seeking voluntary retirement
was submitted on 28.07.2005 by which period the
respondent’s husband no doubt had put in more than 25
years of service. Insofar as the eligibility to apply seeking
voluntary retirement in view of the completed length of
service, the respondent’s husband had acquired such
right. The Appellant Transport Corporation however, did
not think it appropriate to accept the application and
grant the voluntary retirement. In that circumstance the
husband of the respondent submitted his resignation on
Page 5 of 13
03.05.2006 which was accepted by the Appellant
Transport Corporation and was relieved on 31.05.2006.
The respondent contends that immediately thereafter an
application was made indicating that the word
‘resignation’ was inadvertently mentioned and the
intention of the respondent’s husband was to renew his
request for voluntary retirement. However, the
consideration of such subsequent application by the
Appellant Transport Corporation did not arise and as
indicated, the respondent’s husband had been relieved on
31.05.2006 and all the service benefits payable in respect
of an employee who had resigned from service was paid,
which was accepted by the respondent’s husband. The
undisputed position is also that the respondent’s
husband subsequently died on 14.04.2011. It is
subsequent to the death of the husband, the respondent
had filed the writ petition before the High Court of
judicature for Rajasthan, Bench at Jaipur in S.B. Civil
Writ Petition No.2839/2012. The learned Single Judge
while considering the case of the respondent merely took
Page 6 of 13
note of the legal position which had been enunciated by
this Court in the facts of those cases which had been
referred and with a bare reference to Clause 19D(2) of the
Rules arrived at the conclusion that the application for
voluntary retirement was deemed to have been accepted
and therefore, directed that the appellants to treat the
respondent’s husband to have retired from service on the
date he was relieved and pay the retiral benefits. The
Division Bench has reiterated the said position.
11. Having heard the learned counsel for the parties,
we find that the factual aspects which were relevant for
decision making in the instant case has not been referred
by the High Court during the course of its order but has
merely assumed that the voluntary retirement application
should be deemed to have been accepted when there was
no rejection. As noticed from the objection statement
filed by the respondent herein herself, the right to seek
for voluntary retirement is stipulated in Rule 50 of
Rajasthan Civil Services Pension Rules, 1996. As
indicated above, since the same provides for 20 years of
Page 7 of 13
qualifying service, the respondent’s husband had
qualified to apply. However, what is relevant to take note
is that subRule(2) thereof provides that the notice of
voluntary retirement given by the employee shall require
acceptance by the appointing authority. In the instant
case, the undisputed position is that there was no
acceptance and in that circumstance the husband of the
respondent had submitted his resignation on 03.05.2006.
Though the High Court has indicated deemed
acceptance, the same would not be justified in the
instant facts since the position which has not been taken
note by the High Court is that as on the date when the
husband of the respondent had made the application for
voluntary retirement on 28.07.2005 the husband of the
respondent had already been issued ChargeSheets
bearing No.7352 dated 16.12.2004 and bearing No.4118
dated 11.07.2005 alleging misconduct. Though the
respondent, through the objection statement seeks to
contend that the charge alleged against her husband was
not justified, that aspect of the matter would not be
Page 8 of 13
germane to the present consideration since the position
of law is well established that pending disciplinary
proceedings if an application for voluntary retirement is
submitted there would be no absolute right seeking for
acceptance since the employer if keen on proceeding with
the inquiry would be entitled not to consider the
application for voluntary retirement. Hence there would
be no obligation to accept. In the instant facts the
proceedings relating to the charge sheet was taken
forward and completed through the final order dated
03.09.2005. The punishment of withholding of the
increment was imposed. In such circumstance the nonconsideration of the application for voluntary retirement
would be justified.
12. Be that as it may, as noted the inquiry had been
completed and thereafter when the respondent’s husband
submitted the resignation on 03.05.2006, the same was
processed, accepted, he was relieved on 31.05.2006 and
the payment of terminal benefits were made which had
been accepted by him. During his lifetime up to
Page 9 of 13
14.04.2011 the husband did not raise any issue with
regard to the same. It is only thereafter the respondent
has filed the writ petition before the High Court. Primarily
it is to be noticed that when the application for voluntary
retirement was filed on 28.07.2005 and had not been
favourably considered by the employer, instead of
submitting the resignation on 03.05.2006, if any legal
right was available the appropriate course ought to have
been to seek for acceptance of the application by
initiating appropriate legal proceedings. Instead the
respondent’s husband had yielded to the position of nonacceptance of the application for voluntary retirement
and has thereafter submitted his resignation. The
acceptance of the resignation was acted upon by
receiving the terminal benefits. If that be the position,
when the writ petition was filed belatedly in the year
2012 and that too after the death of the employee who
had not raised any grievance during his life time,
consideration of the prayer made by the respondent was
Page 10 of 13
not justified. The High Court has, therefore, committed
an error in passing the concurrent orders.
13. The learned counsel for the respondent would
submit that even if it is a case of resignation the deceased
husband of the respondent was entitled to the payment of
gratuity as he had put in the qualifying service. The
learned counsel for the appellant would contend that the
gratuity amount had been paid. In that regard, the
reference made to para 9 of the writ appeal filed before
the High Court would however indicate that though
reference is made to the payment disbursed to the
respondent’s husband while accepting the resignation,
the same does not disclose that the gratuity amount has
been paid. Further, in the appeal filed before this Court
the appellants have sought to justify the nonpayment of
the gratuity as the husband of the respondent had
resigned from service. As rightly pointed out by the
learned counsel for the respondents, Section 4(1)(b) of the
Payment of Gratuity Act, 1972 provides that the gratuity
shall be payable if the termination of employment is after
Page 11 of 13
5 years of continuous service and such termination
would include resignation as well. In that view, if the
gratuity amount has not been paid to the respondent’s
husband, the liability to pay the same would subsist and
the respondent No.1 will be entitled to receive the same
in accordance with the provisions of the Act. In that
regard it is directed that the appellants shall accordingly
calculate the gratuity and pay the same to the
respondent No.1, if already not paid. Such payment shall
be made within four weeks from this date.
14. In the result, the appeal is allowed. The judgment
dated 19.11.2018 passed in D.B. Special Appeal(W)
No.1261/2018 upholding the order dated 01.11.2017 in
S.B. Civil Writ Petition No.2839 of 2012 is set aside. The
gratuity amount as directed above shall be paid to
respondent No.1 in terms of the provisions of the
Payment of Gratuity Act, 1972 within four weeks from
this date.
Page 12 of 13
15. Pending application, if any, shall stand disposed of.
………….…………….J.
(R. BANUMATHI)
………….…………….J.
(A.S. BOPANNA)
New Delhi,
April 15, 2020
Page 13 of 13
