Kazi Syed Zahiruddin vs Industrial Court, Amravati Bench and Another

D.D. Sinha, J.—Heard Shri Papinwar, learned counsel for petitioner. Respondent No. 2 though served, remained absent. The writ petition is directed against the judgment and order dated February 15, 1999 passed by the Member, Industrial Court, Amravati in Complaint (ULP) No. 143 of 1996 whereby the complaint filed by the present petitioner under Item 9 Rule 4 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 was dismissed

Shri Papinwar, learned counsel for petitioner submitted that petitioner was serving as an Engineer in the Department run by respondent No. 2. The petitioner, while he was in the employment of respondent No. 2, has submitted application for voluntary retirement, dated May 17, 1995 and requested the respondent No. 2 to allow him to retire from service w.e.f. August 17, 1995. The learned counsel further submitted that the petitioner therefore changed his mind and decided to revoke/cancel his application for voluntary retirement dated May 17, 1995 and therefore submitted another application dated July 24, 1995 by which he has withdrawn the voluntary retirement letter/application dated May 17, 1995. It is submitted that the respondent No. 2 has received both the applications of the petitioner. However, the respondent No. 2 ignored the application dated July 24, 1995 while passing the order dated November 1, 1995 passed by the respondent No. 2 taking into consideration application for voluntary: retirement dated May 17, 1995 and there is not even a whisper in the order dated November 1, 1995 about the application dated July 24, 1995 by which the petitioner has revoked his request for voluntary retirement dated May 17, 1995.

The learned counsel submitted that the above referred factual aspect of submitting application for voluntary retirement dated May 17, 1995 requesting respondent No. 2 to allow, the petitioner to retire w.e.f. August 17, 1995 as well as submission of another application dated July 24, 1995 by which the petitioner has revoked the request of voluntary retirement dated May 17, 1995, receipt of the above referred application by respondent No. 2 and passing order of accepting the permission to retire voluntarily, dated November 1, 1995 is not disputed by any of the parties.

The learned counsel for petitioner: submitted that the petitioner was well within his legal right to withdraw the application for voluntary retirement before August 17, 1995, before it is actually acted upon by the respondent.

In the instant case, since the petitioner has, vide application dated July 24, 1995, withdrew his request for voluntary retirement dated May 17, 1995, there was no occasion for the respondent No. 2 to act upon the application dated May 17, 1995. Consequently, the petitioner should have been continued in service and his services could not have been terminated by respondent No. 2 w.e.f. August 17, 1995. It is submitted that the Industrial Court in fact has accepted the contention in this regard and also held in para 5 of the impugned order that the petitioner is entitled to submit the application for withdrawal before August, 17, 1995. The learned counsel further contended that in spite of accepting the contention raised by the learned counsel the Industrial Court passed the impugned order dated February 15, 1999 only because the petitioner has not given any specific reason for changing his mind to withdraw the application for voluntary retirement dated May 17, 1995. According to the learned counsel, this reasoning is not proper and same is also not sustainable in law. The learned counsel therefore contended that the impugned order is not just and proper and same is liable to be set aside.

I have considered the arguments advanced by the learned counsel and perused the impugned order passed. The factual aspect as stated by the learned counsel for the petitioner is undisputed. In the instant case, the petitioner has submitted his application for voluntary retirement on May 17, 1995 and requested the respondent No. 2 to allow him to retire w.e.f. August 17, 1995. The petitioner submitted another application dated July 24, 1995 by which the petitioner has revoked the request of voluntary retirement dated May 17, 1995. In view of this factual aspect of the case, in my opinion, the petitioner was well within his right to withdraw the request of voluntary retirement before August 17, 1995 i.e. the date on which the petitioner has requested the respondent No. 2 to allow him to retire. The controversy is covered by the ratio of the judgments of the Apex Court reported in J.N. Srivastava Vs. Union of India (UOI) and Another, .

The Apex Court in the above referred judgment has held that:

"It is 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 penitential to withdraw proposal for voluntary retirement.".

In the instant case, the respondent No. 2 for the first time acted upon the application dated May 17, 1995 on November 1, 1995 i.e. the date on which the respondent No. 2 passed the order of voluntary retirement and the application for revocation of request of voluntary retirement was made by the petitioner to the respondent No. 2 on July 24, 1995 i.e. much prior to the order of voluntary retirement passed by the respondent No. 2. It is also true that the Industrial Court in fact accepted the contention in this regard raised by the petitioner. However, the complaint came to be rejected only on the ground that the petitioner has not put forth the reasons for changing his mind to withdraw the notice/application for voluntary retirement dated May 17, 1995. This finding of the Industrial Court is totally misconceived and devoid of substance and same is therefore not sustainable in law at all. At this stage Shri Papinwar, learned counsel for the petitioner submitted that the respondent No. 2 authority should be directed to treat the petitioner to have validly withdrawn his proposal for voluntary retirement w.e.f. July 24, 1995 and treat the petitioner to be in service till the date of his superannuation. The respondent No. 2 also be directed to make good to the petitioner all the monetary benefits by treating him to have continuously worked till the date of his actual superannuation. While considering the submissions in this regard, it may not be lost sight of the fact that the petitioner was always ready and willing to work. However, the respondent No. 2 did not allow him to work after November 1, 1995. In the circumstances, therefore, the writ petition is allowed. The impugned order is set aside. Respondent No. 2 is directed to make available all the requisite monetary benefits to the petitioner in accordance with law subject to adjustment of any pension amount or other retirement benefits already paid to the petitioner. Rule made absolute in above terms. No order as to costs.