Rajasthan State Road Transport … vs Smt. Mohani Devi on 15 April, 2020


Supreme Court of India

Rajasthan State Road Transport … vs Smt. Mohani Devi on 15 April, 2020

Author: A.S. Bopanna

Bench: Rohinton Fali Nariman, A.S. Bopanna

                                                             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)




                                            JUDGMENT

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

Signature Not Verified
the retiral benefits of her late husband who was
Digitally signed by
SUSHMA KUMARI

appointed in the post of conductor on 15.03.1979 at
BAJAJ
Date: 2020.04.15
14:26:51 IST
Reason:

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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

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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

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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

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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

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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

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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

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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

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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 non­

consideration 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

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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 non­

acceptance 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

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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

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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.

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15. Pending application, if any, shall stand disposed of.

………….…………….J.

(R. BANUMATHI)

………….…………….J.

(A.S. BOPANNA)

New Delhi,
April 15, 2020

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