Union of India v. Hanumant Yellappa Bajal

1. The challenge in this petition is to an order dated 23/01/2009 passed by the Central Administrative Tribunal (“the Tribunal”, for short) allowing the Original Application filed by the respondent. The Tribunal directed the petitioners to reinstate the respondent with continuity of service and pay him backwages with effect from 26/11/2005. The Tribunal directed the petitioners to call upon the respondent to resume his duties immediately on receipt of such notice. It was further directed that back wages shall be paid to the respondent within three months from the date of resumption of duties by him and the period of absence upto 26/11/2005 was directed to be regularized in accordance with law.

2. The brief facts of the case are that the respondent was appointed as ‘Tin Copper Smith’ with petitioner no. 3 on 20/04/1981. On 01/04/1996, the respondent was promoted as Master Craftsman vide order dated 31/10/1996 with retrospective effect from 01/04/1996. On 31/01/2004, the respondent met with an accident. The respondent was granted Special Disability Leave for 120 days for the period between 03/02/2004 to 01/06/2004 and for 01/06/2004 to 24/06/2004 half pay leave. Subsequently, he was also allowed 92 days earned leave from 25/06/2004 and 24/10/2004.

3. The respondent tendered notice for voluntary retirement on 01/10/2004. The petitioners accepted the notice with effect from 01/01/2005. The pension papers of the respondent were prepared but the respondent did not encash the pensionary benefits because the application for withdrawal of voluntary retirement and for permitting him to resume duty which was made by him on 27/09/2005 was pending. The respondent was asked to appear before the petitioners for medical examination and for obtaining medical fitness certificate. The respondent was medically examined and was declared fit to resume duties. The respondent submitted the fitness certificate on 26/11/2005.

4. The petitioner no.3 addressed a letter to the higher authorities to look into the matter of the respondent sympathetically and recommended allowing the respondent to withdraw the notice of voluntary retirement. Vide order dated 15/09/2006, the petitioners did not allow the respondent to withdraw the notice of retirement. The respondent challenged this order before the Tribunal. The Tribunal allowed the application.

5. Ms. Helekar, learned counsel for the petitioner-Union of India submitted that the Tribunal was in error in allowing the original application. It is submitted that it is the respondent who had requested for voluntary retirement and that request was considered by the petitioners. Learned counsel therefore submitted that no fault can be attributed to the petitioners in acceptance of the notice of voluntary retirement. It is further submitted that the respondent has sought to withdraw the notice of voluntary retirement after the same was accepted. It is the submission of Ms. Helekar that as a consequence of acceptance, it was no longer open for the respondent to apply for withdrawal of the notice of voluntary retirement. Ms. Helekar was at pains to point out that there was no indication that the application for voluntary retirement was at the behest of the Petitioner in which case provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (‘Disabilities Act’ 1995, for short) on the basis of which the Tribunal has erroneously proceeded to allow the application would have some application. For all these reasons, Ms. Helekar submitted that the petition be allowed.

6. Learned counsel for the respondent supported the impugned order.

7. Heard. There is no dispute that as a result of an accident, the respondent suffered disability. In fact, the petitioner was granted Special Disability Leave for 120 days and thereafter from time to time half pay leave and earned leave. Thereafter the respondent tendered the notice for voluntary retirement.

8. The Hon’ble Supreme Court in 1 Bhagwan Dass and another Vs. Punjab State Electricity Board had an occasion to consider the provisions under Section 47 of the Disabilities Act 1995. Section 47 reads thus:

10. In the present case also we find that there is nothing on record to indicate that the respondent was informed about the rights which he had under the provisions of Section 47 of the Disabilities Act 1995. Because the respondent tendered an application for voluntary retirement, mere acceptance can never mean that the respondent can be deprived of the rights conferred on him by Section 47 of the Disabilities Act 1995, unless he was informed of his rights. There is nothing on record to indicate and it is not even the case of the petitioners that the respondent was informed of this valuable right.

11. We have gone through the order passed by the Tribunal. We do not see any reason to interfere with the well considered observations of the Tribunal which follows the Hon’ble Supreme Court’s observations in Bhagwan Dass (supra).

12. Another aspect which we must make a reference to is the provisions of Chapter VI of the Central Civil Services (Pension) Rules, 2021 (“the Rules of 2021”, for short). Clause (5) of Rule 42 of Chapter VI of the Rules of 2021 deals with the retirement clause. The same reads thus: