Vijaykumar Raosaheb Kulkarni v. The Rasta Peth Education Society & Ors.

15. Since there is dispute about the nature of request made by Petitioner in his application dated 31 August 2020, it would be necessary to reproduce the same. Petitioner’s application dated 31 August 2020 thus reads as under- Jh fot;dqekj jkolkgsc dqyd.khZ lgf’k{kd vkcklkgsc v=s fnu iz’kkyk] lkseokj isB] iq.ks&411 911 izfr] ek- lfpo] fn jkLrk isBk,T;qds’ku lkslk;Vh] lkseokij isB] iq.ks&411011 n~okjk ek- eq[;k/;kfidk] vkcklkgsc v=s fnu iz’kkyk] lkseokj isB] iq.ks&411011 fo”k; % ek>k lgf’k{kd inkpk jkthukek eatwj dj.ksckcr egksn;@egksn;k] ojhy fo”k;kuqlkj vki.kkl uez fouarh djrks dh] ekÖ;k ikBhP;k euD;krhy vktkjkeqGs o Mkok Ikk; QWDpj >kY;keqGs eh tkLr osG,dk tkxsoj mHkk jkgw ‘kdr ukgh o [kqphZoj gh,dk tkxsoj tkLr osG clw ‘kdr ukgh- R;keqGs eyk o;ksekukuqlkj [kqi ‘kkfjjhd =kl lq# >kysyk vkgs-;k dkj.kkeqGs ek>s f’k{kd Eg.kwu drZO; ikj ikMrkuk vMp.kh;srkr-;kdfjrk eh Lo[kq’khus LosPNkfuo`Rrh fnukad 01@12@2020 iklwu ?ksr vkgs- R;kdfjrk eh ek>k lgf’k{kd inkpk jkthukek eatwj dj.;klkBh vki.kkl lknj djr vkgs- rks vki.k jhrlj eatwj d#u eyk 30 uksOgsacj 2020 jksth dk;ZeqDr d#u iq<hy lsokfuo`Rrhps ykHk feG.;klkBh vki.k;ksX; rh dk;Zokgh djkoh gh uez fouarhvkiY;k laLFksr eh lekos’kukus gtj >kY;kiklwu vkti;Zar lgf’k{kd Eg.kwu dke djr vlrkuk eyk vki.k vkiY;k laLFksP;k fnu iz’kkyse/;s laLFkk Ik;Zos{kd inki;Zar dke dj.;kph la/kh fnyh- R;kcn~ny eh vkiY;k laLFkspk vk;q”;Hkj _.kh jkfgy- vkiY;k laLFksr lgf’k{kd Eg.kwu dke djr vlrkuk vkiY;k laLFksus jkcfoysY;k fofo/k midzekrwu ekÖ;k v|kor ‘kS{kf.kd Kkukr Hkj iMysyh vkgs- ekÖ;kdMwu dGr udGr lgf’k{kd o laLFkk i;Zos{kd Eg.kwu dke djr vlrkuk dkagh pqdk >kY;k vlrhy rj R;kcn~ny eh vki.kk lokZaph ekQh ekxrks-;kcn~ny vki.k eksB~;k eukus eyk ekQ djkos- gh uez fouarh- vkiY;k laLFksph v’khp HkjHkjkV gksr jkgs- gh lfnPNk! dGkos vkiyk fo’oklw (fot;dqekj dqyd.khZ)

16. The letter dated 31 August 2020 can be translated as under Shri Vijaykumar Raosaheb Kulkarni Assistant Teacher Aabasaheb Atre Din Prashala, Somwar Peth, Pune-411911 Date – 31/08/2020. To, The Secretary The Rasta Peth Education Society, Somwar Peth, Pune-411011 Through: Headmistress Aabasaheb Atre Din Prashala, Somwar Peth, Pune-411011. Subject:- Acceptance of my resignation on the post of Assistant Teacher. Sir/Madam, With reference to the above subject I humbly request that I am unable to stand at one place for long time nor can sit on chair at one place for long time on account of spinal problems in the back as well as fracture in left leg. I am also suffering extreme physical pain due to advanced age. For these reasons I suffer difficulties while discharging duties as a teacher. Hence, I am opting for voluntary retirement with my own will with effect from 01 December 2020. I am accordingly submitting this letter for acceptance of my resignation on the post of Assistant Teacher. The same be accepted by relieving me on 30 November 2020 and further action be initiated for grant of benefits of retirement.” You have provided an opportunity to function up to the position of Institution Supervisor in your reputed school after I joined as Assistant Teacher in your school after absorption for which I am indebted for my life. Through various activities undertaken by your institution I have aided to my updated teaching knowledge while working as Assistant Teacher in your institute. I tender my apology if I have committed any mistake knowingly or unknowingly while functioning as Assistant Teacher and Institution Supervisor. I may be pardoned for the same. I wish all the prosperity to your Institution. Yours faithfully (Vijaykumar Kulkarni) (emphasis and underlining supplied)

17. Thus, the letter dated 31 August 2020 uses the word ‘resignation’ at two places. However, the letter specifically states that Petitioner opted for ‘voluntary retirement’ with effect from 01 December

2020. He has further requested the Respondent School Management to take necessary action for payment of retirement benefits. Use of word ‘voluntarily retirement’ coupled with request for payment of pensionary benefit would leave no matter of doubt that Petitioner desired to opt for voluntary retirement and not for resignation. The word ‘resignation’ appears to have been loosely used in the letter out of confusion. Though Petitioner’s letter dated 31 August 2020 was for voluntary retirement, Respondent School Management conveniently treated it as resignation and entered into correspondence with him calling upon him to submit medical certificate for expeditious processing of resignation. Possibly Petitioner did not understand deliberate use of the word ‘resignation’ by Respondent School Management in various letters and he also continued using the same word in his own letters. Thus, in all correspondence that took place from 09 September 2020 till 27 November 2020 the word ‘resignation’ came to be repeatedly used by both sides. However, in his withdrawal letter dated 28 November 2020, Petitioner specifically withdrew his voluntary retirement and not resignation. It would be necessary to reproduce Petitioner’s letter dated 28 November 2020, the relevant portion of which is translated as under- “With reference to the above I request that I am withdrawing my resignation tendered through the medium of voluntary retirement on 31 August 2020 for my personal reasons on 28 November

2020. I am therefore requesting to treat my resignation application in connection with voluntary retirement dated 28 November 2020 as cancelled.”

18. In his letter dated 28 November 2020, Petitioner states that ‘he was withdrawing his resignation tendered through the medium of voluntary retirement’. This would leave no matter of doubt that the word ‘resignation’ has been used by Petitioner in the context of his voluntary retirement. He has possibly not understood the exact difference between the two concepts and was apparently labouring under a misconception that for opting the voluntary retirement, it is necessary to tender resignation. Therefore, there is no doubt that Petitioner always intended to opt for voluntary retirement.

19. The matter needs to be viewed from another angle also. Petitioner is working as an Assistant Teacher since year 1997 in aided school. His appointment has been approved by the Education Officer (Secondary) Zilla Parishad, Pune. This would mean that Petitioner is entitled to payment of pensionary benefits on his retirement. Petitioner had undoubtedly put in minimum requisite service of 20 years necessary for voluntary retirement. In such circumstances, it is difficult to understand as to why he would give up his retirement benefits by tendering a resignation. Resignation entails forfeiture of past service and a resigned employee does not become eligible for pensionary benefits. On the contrary, employee opting for voluntary retirement is entitled to all pensionary benefits in respect of qualifying service rendered by him. Petitioner expected payment of retirement benefits and requested for early disbursal in his application dated 31 August 2020. This is yet another factor which would lead credence to the fact that Petitioner opted for voluntary retirement and not for resignation. The Apex Court in catena of judgments has treated resignations tendered by employee who had rendered qualifying service for pension as application for voluntarily retirement. In Sheelkumar Jain Vs. New India Assurance Company Limited and others, 2011 (12) SCC 197 the appellant therein had resigned from service due to his ill health, however since he had rendered requisite qualifying service for pension, the Apex Court treated his resignation as application for voluntary retirement and directed the employer to treat him as voluntarily retired. The Apex Court in paragraph 25, 26, 29 to 30 of the judgment observed as under -

20. In Shashikala Devi v. Central Bank of India, (2014) 16 SCC 260, the Apex Court has relied upon its past decision in Sudhir Chandra Sarkar v. Tisco Ltd., (1984) 3 SCC 369 has held as under:

17. When viewed in the backdrop of the above facts, it is difficult to reject the contention urged on behalf of the appellant that what the deceased employee intended to do by his letter dated 8-10-2007 was to seek voluntary retirement and not resignation from his employment. We say so in the light of several attendant circumstances. In the first place, the employee at the time of his writing the letter dated 8-10-2007 was left with just about one-and-a-half years of service. It will be too imprudent for anyone to suggest that a bank employee who has worked with such commitment as earned him the appreciation of the management would have so thoughtlessly given up the retiral benefits in the form of pension, etc. which he had earned on account of his continued dedication to his job. If pension is not a bounty, but a right which the employee acquires on account of long years of sincere and good work done by him, the Court will be slow in presuming that the employee intended to waive or abandon such a valuable right without any cogent reason. At any rate there ought to be some compelling circumstance to suggest that the employee had consciously given up the right and benefit, which he had acquired so assiduously. Far from the material on record suggesting any such conscious surrender, abandonment or waiver of the right to retiral benefit including pension, we find that the material placed on record clearly suggests that the employee had no source of income or sustenance except the benefit that he had earned for long years of service. This is evident from a reading of the letter dated 8-10- 2007 in which the employee seeks release of his retiral benefits at the earliest to enable him to undergo medical treatment that he requires. The letter, as seen earlier, lays emphasis on the fact that for his sustenance the employee is dependent entirely on such benefits. It is in that view difficult for us to attribute to the employee the intention to give up what was rightfully his in terms of retiral benefits, when such benefits were the only source not only for his survival but for his medical treatment that he so urgently required. For a waiver of a legally enforceable right earned by an employee, it is necessary that the same is clear and unequivocal, conscious and with full knowledge of the consequences. No such intention can be gathered from the facts and circumstances of the instant case. The employee's subsequent letters and communication which are placed on record cannot be said to be an afterthought. Being proximate in point of time the letter dated 8-10-2007 must be treated to be a part of the subsequent communication making the employee's intentions clear, at least for the purposes of determining the true intention underlying the act of the employee.

18. It is, in our opinion, abundantly clear that the beneficial provisions of a Pension Scheme or Pension Regulations have been interpreted rather liberally so as to promote the object underlying the same rather than denying benefits due to beneficiaries under such provisions. In cases where an employee has the requisite years of qualifying service for grant of pension, and where he could under the service conditions applicable seek voluntary retirement, the benefit of pension has been allowed by treating the purported resignation to be a request for voluntary retirement. We see no compelling reasons for not doing so even in the present case, which in our opinion is in essence a case of the deceased employee seeking voluntary retirement rather than resigning.

19. We may at this stage refer to a few decisions of this Court in which somewhat similar questions have been examined and answered by this Court. In Sudhir Chandra Sarkar v. Tisco Ltd a permanent uncovenanted employee of the Company had served for 29 years whereafter he tendered his resignation which the employer accepted unconditionally. The Company's Retiring Gratuity Rules did not provide for payment of gratuity to employees who resigned from service. This Court while reversing the view taken by the High Court held that termination of service by resignation was tantamount to retirement by resignation entitling the employee to retiral benefits. The following passage is apposite in this regard: (SCC pp. 375-76, para 7)

22. Applying the ratio of the above judgments, even if Petitioner was to submit a plain and simple letter for resignation, the same could yet have been treated as application for voluntary retirement since the Petitioner had undoubtedly rendered requisite pensionable service necessary for voluntary retirement.

23. I have therefore no hesitation in holding that Petitioner tendered request for voluntary retirement and not for resignation. The findings recorded by the Tribunal treating Petitioner’s application dated 31 August 2020 as resignation are perverse and unsustainable.

24. Having arrived at a conclusion that Petitioner’s application dated 31 August 2020 was for voluntary retirement, next issue for determination is whether he had right to withdraw the same.

25. Petitioner opted for voluntary retirement with effect from 1 December 2020 and submitted date of relieving as 30 November 2020. Petitioner’s request was replied by Respondent School Management by adopting resolution dated 25 November 2020. Petitioner was given intimation about the Management’s decision vide letter dated 27 November 2020. The letter further states that Petitioner would be relieved after submission of all requisite documents such as no dues certificate / no objection certificate from all departments. Thus, the letter dated 27 November 2020 did not relive Petitioner and he continued to be in employment of Respondent School Management. Even otherwise, the resolution adopted by the Respondent Management does not indicate the resignation / voluntary retirement was accepted from a particular date. This would mean that Petitioner’s voluntary retirement was to come into effect from 1 December 2020 as requested by him. However, before the same could come into effect he withdrew his voluntary retirement on 28 November 2020. The issue that therefore arises is whether Petitioner had right to withdraw the voluntary retirement after its acceptance but before it came into effect. Law in this regard is settled by the Judgment of the Apex Court in J. N. Srivastava Vs. Union of India 1998 (9) SCC 559. The Apex Court held in paragraph No.3 as under-

3. The short question is whether the appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him on 3-10- 1989 which was to come into effect from 31-1-1990. It is true that this proposal was accepted by the authorities on 2-11-1989. But thereafter before 31- 1-1990 was reached, the appellant wrote a letter to withdraw his voluntary retirement proposal. This letter is dated 11-12-1989. The said request permitting him to withdraw the voluntary retirement proposal was not accepted by the respondents by communication dated 26-12-1989. The appellant, therefore, went to the Tribunal but the Tribunal gave him no relief and took the view that the voluntary retirement had come into force on 31-1-1990 and the appellant had given up the charge of the post as per his memo relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. In our view the said reasoning of the Tribunal cannot be sustained on the facts of the case. It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India [1987 Supp SCC 228: 1988 SCC (L&S) 126: (1987) 5 ATC 246]. In view of the aforesaid decision of this Court it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31-1-1990.

26. Thus it is a settled law that an employee is entitled to withdraw voluntary retirement before it actually comes into effect even after its acceptance. Therefore, on account of withdrawal of voluntary retirement by Petitioner on 28 November 2020, his retirement did not come into effect.

27. Mr. Butala has relied on judgments quoted above in support of his contention that resignation once submitted and accepted, cannot be subsequently withdrawn. However, I have already recorded a finding that what is submitted by Petitioner on 31 August 2020 is request for ‘voluntary retirement’ and not for ‘resignation’. Therefore reliance of Mr. Butala on various judgments quoted above as well as on Section 7 of the Act of 1977 and Rule 40 of Rules of 1981 is misplaced.

28. The Respondent School Management thus erroneously prevented Petitioner from performing his duties after 28 November

2020. Petitioner is required to be treated in service w.e.f. 25 November

2020. In the peculiar facts and circumstances of the case, where Petitioner did make the School Management believe that he was resigning from service, I am not inclined to grant the benefit of backwages to him on the principle of ‘no work no pay’. The intervening period will have to be however treated as duty for all other purposes such as pay fixation, continuity of service, qualifying service for pension, etc.

29. Resultantly, the petition succeeds. Judgment and order dated 20 April 2022 passed by the School Tribunal, Pune in Appeal No.29 of 2020 is set aside. Petitioner shall be reinstated in service with effect from 25 November 2020 with all consequential benefits, except backwages. The intervening period shall be treated as duty for all other purposes such as pay fixation, continuity of service, qualifying service for pension, etc. Writ Petition is accordingly allowed. Rule is made absolute.

30. Interim Application No.30364 of 2022 is filed by an intervener seeking to raise certain disputes about the managing committee of Respondent No.1 institution. Since the said issue is not germane to the petition, interim application is disposed of.

SANDEEP V. MARNE, J.

VISHNU KAMBLE