Voluntary retirement application deemed to be accepted where employer does not refuse before the expiry of the period specified in the notice : Supreme Court of India
Request made by the employee for curtailment of the period of notice of 3 months before voluntary retirement can only be rejected by the employer if the same causes administrative inconvenience. The Supreme Court bench consisting of J. Ashok Bhushan, J. R. Subhash Reddy, and J. M. R. Shah elaborated upon an employee’s eligibility to seek voluntary retirement in the matter of Indian Bank &amp;Anr. v. Mahaveer Khariwal [Civil Appeal No. 2760 of 2010]. The respondent, or the original writ petitioner, employee, who was working with the appellant bank, employer, was promoted as Chief Manager. The employee was transferred from Colombo overseas branch to a branch in New Delhi. He applied for 30 days leave to visit London as his son was admitted to the hospital after which the employee wrote to the employer seeking an extension of leave, both of which were rejected and the employee was directed to report on duty. The employee submitted an application seeking voluntary retirement from the services of the employer. In this notice, the employee requested for waiver of three months’ notice as required under Regulation 29 of the Indian Bank Employees Pension Regulations, 1995 and requested to deduct the salary of the said notice period from the amount payable by the employer on retirement. The employer rejected the request on the grounds that the employee was not eligible under the Pension Regulations, 1995. The employee preferred a writ petition seeking directions to the employer to accept the voluntary retirement with terms as mentioned, to reimburse the educational expenses for the son of the employee and grant traveling allowance bills for the journey from Colombo to New Delhi which was rejected on account of delay in submitting the bills. The court dismissed the petition so far as a challenge to the rejection of the voluntary retirement, however, granting the other two prayers. The employee then sort to a Letters Patent Appeal before the High Court who allowed the same and directed the employer to release retiral dues of the employee. Aggrieved, the employer preferred the present appeal to the Supreme Court.
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.02.2009 passed by the Division the said appeal preferred by the respondent herein and has quashed and set aside the judgment and order passed by the learned Single Judge and has quashed and set aside communication dated 20.04.2004 of the bank rejecting the application for voluntary retirement and has directed the appellant­bank to release retiral dues of the respondent in accordance with the Pension Regulations 1995 with simple That the respondent herein original writ petitioner ‘employer’) who was promoted as Chief Manager SMG­IV. In March 1998 he was transferred and posted as Chief Manager Colombo Branch Colombo. Thereafter by order dated Defence Colony Branch New Delhi. That on 21.01.2004 the 32 97­98 dated 15th July 1997 and the format given by the employer for submitting the notice of voluntary retirement. In 29 of the Indian Bank Employees Pension Regulations 1995 hereinafter referred to as ‘Pension Regulations 1995’) and requested authorised the employer to deduct the salary of the retirement. The employer vide letter dated 20.04.2004 which Being aggrieved by the rejection of the application for employer to reimburse the educational expenses for the son of while he was posted at Colombo. One another prayer was for New Delhi which was declined by the employer on account of delay in submitting the bills. The learned Single Judge by so far as challenge to the rejection of his voluntary retirement application vide communication dated 20.04.2004. However Feeling aggrieved and dissatisfied with the judgment and petition with respect to his prayer to quash the letter dated 20.04.2004 rejecting his request for voluntary retirement the employee preferred Letters Patent Appeal before the Division Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Shri Ravi Sikri learned Senior Advocate has appeared on 6.1 Shri Ravi Sikri learned Senior Advocate appearing on behalf of the employer has made the following submissions assailing the impugned judgment and order passed by the 29 of the Pension Regulations 1995 in its true perception an employee requires permission acceptance of the employer months from the date of submitting the voluntary retirement that what is relevant is taking the decision within three voluntary retirement. It is submitted that in the present case that the High Court has failed to appreciate that an mandatory notice in writing to enable the employer to make necessary arrangements for an alternate hand in place of the and therefore his application for voluntary retirement was defective to that extent. It is submitted that therefore the which was not in consonance with the Pension Regulations that the High Court has failed to appreciate that the employee’s offer of surrendering three months salary in lieu of mandatory notice period could not be considered to be a valid was in fact transferred to the foreign branch and was not sent Regulations 1995 the employee was not eligible to apply for voluntary retirement unless after having been transferred or India as contemplated under Regulation 29(1) for voluntary retirement the employer initiated departmental from 26.11.2003 to 19.01.2004 and from 22.01.2004 and the disciplinary authority imposed the penalty of compulsory retirement on the employee. It is submitted that therefore the Making the above submissions it is prayed to allow the and order passed by the Division Bench and restore the judgment and order passed by the learned Single Judge and voluntary retirement was rejected. It is submitted that the Division Bench of the High Court has rightly interpreted Regulation 29 and has rightly considered that the bar under Regulation 29(1) shall not be applicable insofar as Regulation 29(1) is concerned as the employee was not on deputation at Colombo Branch but was on transfer. It is submitted that the but the question is whether the rejection of the voluntary submitted the voluntary retirement application on 21.01.2004 In the application itself the employee requested for waiver of disputed that the notice of voluntary retirement requires to Sub­Regulation 2 of Regulation 29 in case the appointing before the expiry of the period specified in the notice the said notice period. In the present case on the 90th day vide for voluntary retirement was rejected without assigning any for voluntary retirement under Pension Regulations 1995. The i.e. 20.04.2004 however the same was received by the employee on 23.04.2004. The learned Single Judge dismissed the writ petition so far as challenge to the communication dated 20.04.2004 is concerned. However on appeal by the impugned judgment and order the Division Bench has set aside the communication dated 20.04.2004 by which the request of the employee for voluntary retirement from the service of the Therefore the short question which is posed for the consideration before this Court is whether the rejection of the request of the employee for voluntary retirement vide 9. While considering the aforesaid question Regulation 29 is 1) On or after the first day of November 1993 at any time after an employee has completed twenty years of qualifying service he may by giving notice of not less employee who is on deputation or on study leave on abroad unless after having been transferred or having to an employee who seeks retirement from service for body whether incorporated or not to which he is on 2) The notice of Voluntary retirement given under sub­ expiry of the period specified in the said notice the An employee referred to in sub­regulation may b) On receipt of a request under clause the appointing authority may subject to the provisions of sub­regulation consider such request for the period of notice will not cause any administrative inconvenience the appointing authority may relax the part of the pension before the expiry of the notice of 4) An employee who has elected to retire under this to the appointing authority. shall be precluded from 5) The qualifying service of an employee retiring that the total qualifying service rendered by such and it does not take him beyond the date of 6) The pension of an employee retiring under this defined under clause of regulation 2 of these his qualifying service. shall not entitle him to any 10. On a fair reading of Regulation 29 it emerges that an completed 20 years of qualifying service. He can apply for voluntary retirement by giving notice of not less than three However as per proviso to Sub­Regulationof Regulation 29 Sub­Regulation of Regulation 29 shall not apply to an employee who is on deputation or on study leave on abroad with and considered hereinbelow. It also appears that as per Sub­Regulation of Regulation 29 the notice of voluntary retirement given under Sub­Regulation shall require acceptance by the appointing authority. However as per the proviso to Sub­regulation the appointing authority has to take a decision before the expiry of the period specified in the the period specified in the notice there shall be deemed acceptance of the voluntary retirement application and the period mentioned in the notice. However at the same time as per Sub­Regulation 3(a) an employee may make a request in retirement of less than three months giving reasons thereof Sub­Regulation 3(b) provides that on receipt of a request for waiver of three months’ notice as per Sub­Regulation 3(a) the appointing authority may subject to the provisions of Sub­ that the curtailment of the period of notice will not cause any the employee shall not apply for commutation of a part of the present case the application of the employee submitting the notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for notice may cause any administrative inconvenience the request for curtailment of the period of three months’ notice can be it does not reflect any compliance of Sub­Regulation 3(b) of Regulation 29. As such no reasons whatsoever have been assigned given except stating that the request is not in accordance with Pension Regulations 1995. Even otherwise it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month i.e. 90 th day not considered on merits. Therefore as rightly held by the The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated proviso to Sub­Regulation of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a not be applicable to the facts of the case on hand as in the Chief Manager Colombo Branch. It says that he is posted as Chief Manager Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch New Delhi in the communication dated 25.08.2003it order of repatriation. Therefore proviso to Sub­Regulationto 12. Now so far as the submission on behalf of the employer that the acceptance or non­acceptance of the voluntary the period specified in the notice i.e. in the present case three months and the same was taken on the last date of the three period and date of decision communication is not material it is true that in the present case the decision was taken before the expiry of the period specified in the notice i.e. on or before three monthshowever as observed hereinabove the to be illegal and bad in law. Therefore the aforesaid shall not 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore the other subsequent proceedings of departmental enquiry will be null and void and shall be non est as after the voluntary appeal fails and the same deserves to be dismissed and is accordingly dismissed. However there shall be no order as to