Ram Kumar Yadav vs Commissioner

Briefly stated the facts of the case are that the applicant entered service under the respondents as PGT Chemistry at Hazaribagh Jharkhand. After serving at different places, he joined KV AFS, Yelahanka, Benguluru on 15.05.2013. The applicant states that he was suffering from depression since last week of October, 2017 due to his family problems. Being not in a normal state of mind and on the advice of his Principal (respondent No.3) the applicant gave an application for VRS on 27.11.2017. However, after submission of his VRS application, the applicant discussed the issue with his family members and well wishers, and realized his mistake. He immediately submitted an application dated 29.11.2017 for withdrawal of his earlier VRS request dated 27.11.2017. A copy of the same is available at Annexure A-2. The applicant submits that the respondent No.2 without considering the withdrawal application dated 29.11.2017, issued an order dated 05.12.2017 accepting his VRS arbitrarily. The applicant was relieved from his duties on 06.12.2017 in extreme haste by respondent No.3 without applying his mind to the fact that the applicant had already withdrawn his VRS application on 05.12.2017.

Immediately, after getting his relieving order, the applicant again represented to respondent No.2 on 06.12.2017 to cancel the order dated 05.12.2017 accepting his VRS. He also requested therein that he may be allowed to resume duty as per his earlier application dated 29.11.2017 seeking withdrawal of his VRS. A copy of representation dated 06.12.2017 was endorsed to respondent No.1 with a request to pass necessary orders to consider his application dated 29.11.2017 and cancel the earlier VRS application dated 27.11.2017.

The applicant avers that the respondent No.1, after considering the representation dated 06.12.2017, issued the transfer order dated 29.11.2017 by which the applicant was transferred from KV AFS Yelahanka, Bangaluru to KVS Katihar. However, though the respondent No.1 passed the transfer orders of the applicant, he did not pass any instructions to cancel the VRS acceptance order dated 05.12.2017. The applicant again approached respondents No.2 and 3 for cancellation of orders dated 05.12.2017 and 06.12.2017 respectively, but in spite of his repeated requests, no action was taken by them. The applicant preferred another representation on 25.01.2018 to respondent no.2 for cancellation of the order dated 05.12.2017 to enable him to join at Katihar in compliance of transfer order dated 29.12.2017. Copy of this representation was sent to respondent No.1 as well. Receiving no reply, the applicant personally visited respondent No.2 but his request was rejected orally. Aggrieved, the applicant has filed the present OA seeking following reliefs:

"i. Call the relevant records of the respondents relating to the impugned orders and persue the same.

ii. Declare the impugned orders dated 05.12.2017 (Annexure-A) and impugned order dated 06.12.2017 (Annexure A-1) as illegal, arbitrary, discriminatory and quash and set aside the same with consequential benefits.

iii. Pass the order directing to respondents to treat the applicant on duty from the date of issuing impugned order (Annexure A-1).

iv. Order exemplary cost against the respondents and in favour of the applicant.

v. May also pass any further order(s)/ direction(s) as be deemed just and proper to meet the end of justice."

In their counter affidavit, the respondents submit that the applicant has not stated the facts correctly. They contend that during his tenure at KV AFS, Yelahanka, Bengaluru, the applicant did not disclose any of his family problems nor did he suffer from any mental depression, as stated by him in the OA. He simply tendered his application for voluntary retirement on 27.11.2017 without any pressure or advise from others (Principal), as alleged. The applicant cited reasons for VRS as personal with a request to waive off the notice period of three months. On receipt of the request, the Deputy Commissioner, KVS, RO, Bengaluru being the competent authority accepted his application by waiving off the notice period, on 05.12.2017 and the applicant was accordingly relieved from service of KV as PGT (Chemistry) on 06.12.2017. The plea of the applicant that he submitted applications dated 29.11.2017, 06.12.2017 and 25.01.2018 requesting withdrawal of VRS is totally false. No such applications were received either at KVS Yelahanka, Bengaluru or at KVS, RO, Bengaluru.

The applicant had tendered application for VRS on 27.11.2017 without any pressure or advice with a request to waive off the notice period of three months. The orders dated 05.12.2017 and 06.12.2017 are in pursuance of applicant"s own request. As far as his transfer orders are concerned, it is submitted that KVS Hd.Qtr. New Delhi had invited applications from all the aspirants for request for transfer against „no taker vacancies", Online. The last date of submitting applications was fixed as 13.11.2017. In response to the aforesaid notification, the applicant, along with others, also applied for his transfer when he was very much on the rolls of KVS. The transfer order dated 29.12.2017 was effected based on his request for transfer on 13.11.2017 and not on his application dated 06.12.2017.

During the course of hearing, learned counsel for the applicant, Shri K.M. Singh forcefully argued that it was the Principal who had ill advised the applicant to give his VRS application. The applicant who was undergoing mental depression due to his wife"s death was not in a normal frame of mind, and simply followed the advise given to him by his seniors. Shri Singh also drew my attention to the medical certificate dated 25.11.2017 to reinforce his argument that the applicant was being treated for depression at the time when he applied for VRS.

The learned counsel tried to hammer home the point that the very fact that the applicant was transferred on 29.12.2017 from Bengaluru to Katihar shows that he was very much on the rolls of the respondents on 29.12.2017. He emphasised that the letter dated 25.01.2018 sent by the applicant, was duly received by the office of Commissioner KVS on 27.01.2018, and in the office of RO, Bengaluru on 29.01.2018, as can be seen from the track consignment record of the Post office (Annexure A-8 colly.), which is a testimony to the fact that the respondents are trying to suppress these facts with a malafide intent. He also relied upon the judgment of Hon"ble High Court of Himachal Pradesh in Bhag Chand Vs. Union of India (UOI) And Ors. dated 13.06.2007 wherein it has been held that a resignation tendered by a person who is not in a fit state of mind to think properly is not legal and its acceptance is bad in law. He further cited the judgment of the Hon"ble Supreme Court in CA No.2057/1987 Balram Gupta Vs. Union of India and Anr. decided in 01.09.198 , in para 13 which has been held that:

"13. We hold, therefore, that there was no valid reason for withholding the permission by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed hus attitude towards continuing in government service and induced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one"s future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardise government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways " to ease out" uncomfortable employees. As a model employer the government must conduct itself with high probity and candour with its employees."

Per contra, the learned counsel for the respondents strongly refuted the allegation of suppression of facts emphasizing that the Vidyalaya did not receive any letter or representation from the applicant for cancellation of his VRS application dated 27.11.2017. He submitted that none of the applications dated 29.11.2017, 06.01.2018 and 25.01.2018 were received by the respondents and the applicant has manipulated these documents to try and retrieve a mess of his own making.

I have gone through the facts of the case carefully and also considered the rival submissions. The basic thrust of the arguments of the learned counsel for the applicant is that the respondents had received the letter dated 25.01.2018 of the applicant for cancellation of his VRS, as proved by the tracking record. This fact has been denied by the respondents with equal force. The applicant has also tried to show that immediately after giving the VRS application on 27.11.2017, it was withdrawn by him on 29.11.2017. This was followed by letters dated 06.12.2017 and 25.01.2018, which the respondents have not taken cognisance of, unfairly.

In my view, what is crucial is not the letter dated 25.01.2018, (for which some evidence is available regarding its receipt by the respondents) but whether the alleged withdrawal letter of 29.11.2017 was actually sent and received by the respondents ?

The judgement of the Hon"ble Apex Court which the applicant has relied upon states that "notice can be withdrawn at any time before the retirement becomes effective notwithstanding any rule providing for obtaining of specific approval of the concerned authority, as condition precedent to withdrawal of notice". Applicant has not been able to establish that his withdrawal letter dated 29.11.2017 was received by the respondents before its acceptance on 05.12.2017 and before his relieving on 06.12.2017. A Govt. servant undoubtedly has the option to withdraw the VRS notice given by him, but it must be done before the retirement notice is accepted. In the absence of any proof that letter dated 29.11.2017 was received by the respondents there appears to be no violation of any rule by the respondents who have merely executed the request of the applicant dated 27.11.2017. The plea that it was handed over personally and hence no receipt was obtained is not convincing or tenable in law. The applicant in his VRS application had himself requested for waiver of the notice period. Hence, the haste in accepting his notice and relieving him, cannot be objected to or called malafide.

The fact that the respondents transferred the applicant to a place of his choice on 29.12.2017 despite his having been relieved from the organisation on 06.12.2017 is a reflection on the lack of communication between different wings of the respondent organisation. The said order was apparently, result of the online request of the applicant. The fact that the applicant stood relieved from the respondent organisation when his transfer orders were issued is an example of left hand not knowing what the right hand is upto, but not enough to corroborate the claim of the applicant that withdrawal of VRS letter was seen/received by the respondents before acceptance and execution of the said request.

I therefore conclude that the applicant was retired voluntarily as per his own request of 27.11.2017. There is no room for the Tribunal to interfere in the impugned orders dated 05.12.2017 and 06.12.2017. The OA is thus rejected. No costs.