Apurba Kumar Deb vs Director of Postal Services and Others

B.L. Hansaria, J.—The Petitioner while holding the post of Lower action Grade Clerk, came to, be compulsorily retired on (SIS).75 which was to come into effect from the afternoon of (SIC) This was challenged by the Petitioner under Article 226 the Constitution before this Court. In the mean time offer was, made to the Petitioner vide Annexure 4 dated 22.12.77 ch has to be, read in full:

As communicated by the Postmaster General, N.E. Circle, Shillong under his No. Staff/N-R/75/5 dated 21.12.77 the D.G. P&T, New Delhi has directed to (SIC)roinstate you provided you are agreeable to the following conditions:

The period for which pay and allowances were paid to the ex-official in lieu of the notice period will be treated as duty.

The period of absence from the date of retirement till the date of his joining duty on reinstatement will be treated as leave due and admissible on obtaining an application from the ex-official for the purpose.

The retirement benefits taken by the official, if any, are, to be refunded before you were reinstated la service and that you produce a certificate of fitness for continuance in Government service from the competent medical authority under the rules.

Kindly intimate whether you are agreeable to the conditions stated above at an early date.

The Petitioner accepted the conditions and he was put back in rvice. He was however not paid his pay and allowances for a period during which he was absent from duty because of (SIC) forced retirement. It is this aspect of reinstatement which been challenged in this application.

Shri Homchoudhury submits that though the Petitioner (SIC)accepted the conditions narrated above, he had done so as was under a very pressing circumstance being out of job about two years. It is urged that under F.R. 54 the Petitioner was entitled to full pay and allowances on his compulsory (SIC) having been withdrawn. The contention of learned (SIC) Counsel for the Central Government however (SIC) Petitioner having accepted the offer made by Annexure 4, cannot get anything beyond the stipulations in that Annexure. (SIC) be reiterated that as per condition No. the period absence was to be treated as leave due and admissible. The Petitioner was thus clearly made known that he would not be: (SIC)back pay and allowances for the period in question. As the right to receive the pay and allowance WAS waived, (SIC) to the learned Standing Counsel.

Shri Homchoudhury contends that there could not have any waiver on the facts and circumstance of the case. In (SIC) of his submission, he has first referred to Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, Wherein it was that if there has been admission in ignorance of legal rights (SIC) the admission would not put the person out a Count. It is not the case of the Petitioner that he was (SIC) of, his legal rights. We also do not read any, duress (SIC) on him. This decision cannot therefore assist the Petitioner Some support is sought to be devised by Bennett Coleman and Co. (P) Ltd. Vs. Punya Priya Das Gupta, has held that to attract Section 115 of the Evidence Act Gauhati Law Reports (1982) 1 GLR representation must be clear and unambiguous. As already ted, there was no ambiguity in the conditions on which the Petitioner was to be taken back in service. It is then urged (SIC) statute, more particularly F.R. 54, on reinstatement an combent is entitled under certain circumstances to full pay the allowances, and definitely to a part of it in any case. The instatement in present case was not in pursuance to the setting of the order compulsory retirement by any court or authority, but was a voluntary act of the Government, and the Petitioner was made known that he would be reinstated provided was agreeable to the conditions mentioned In Annexure 4. that Annexure be was also asked to intimate the authority whether he was agreeable to the conditions. It is not in dispute at the Petitioner had agreed to the conditions in question (SIC) which he was reinstated in service. It would be a case approbation and reprobation if we were to allow the Petitioner only to be reinstated in service but without being bound (SIC)the condition''s mentioned in Annexure 4.

This being the position, we do not find any force in he petition and it stands dismissed.