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Judgment
The petitioner, through the medium of the instant petition, has sought the following reliefs:
“Writ petition Under Article 226 of the Constitution of India for the issuance of an appropriate, writ, order of direction directing the respondents to release the salary of the petitioners commencing for the period from 01.07.2016 to 31.01.2017 which has been withheld by the respondents unconstitutionally.”
The grievance of the petitioners which has been projected in the instant petition, is that the respondent-State Financial Corporation issued Circular No. SFC/HQ/Admn/16-374 dated 16.06.2016 and H.O. Corrigendum No. SFC/HO/Admn/16-386 dated 17.07.2016, inviting applications from various aspirants under Voluntarily Retirement Scheme (VRS). It was further directed that the desirous candidates were directed to convey their specific consent for availing the benefits of the said VRS. The petitioners, in pursuance of the aforesaid circular issued by the State Financial Corporation, applied for availing the benefit under the Voluntarily Retirement Scheme and consequently submitted their written consent for retirement under the said scheme, which is evident from a bare perusal of the consent letters which has been placed on record along with the instant petition.
The respondents accepted the offer of the petitioners for Voluntary Retirement pursuant to the said consent letters and, accordingly, conveyed the acceptance of such Voluntary Retirement to the petitioners vide communication dated 01.02.2017. The further case of the petitioners is that although they had given their consent in the month of June, 2016 for such Voluntary Retirement, the respondents accepted the said consent only in the month of February, 2017, after a gap of seven months. During the intervening period, the petitioners continued to perform their duties from the date of giving their consent till the date on which their Voluntary Retirement was accepted by the respondents.
The further fact of the matter is that the petitioners were thereafter informed that they were deemed to have been relieved from the service of the Corporation on 03.02.2017. The petitioners thereafter were paid their retiral benefits, however, the salary for the intervening period of seven months was not paid by the respondents. Feeling aggrieved of the same, the petitioners also preferred a representation before the respondents seeking release of their salary for the period commencing from 01.07.2016 to 31.01.2017. Despite receipt of the said representation, it is urged by learned counsel for the petitioners that the respondents have failed to release the said salary in favour of the petitioners. Feeling aggrieved of the inaction on the part of the respondents, the instant petition has been preferred seeking a direction against the respondents for release of their legitimate salary for the period commencing from 01.07.2016 to 31.01.2017.
Per contra, a counter affidavit stands filed on behalf of the respondents, in which the respondents have taken a preliminary objection that the instant petition is grossly misconceived both in law and facts, as none of the rights of the petitioners have been infringed. The respondents have further taken a preliminary objection that the petitioners are not entitled to any of the reliefs claimed in the instant petition, as the Corporation accorded acceptance to their Voluntarily Retirement Scheme. It is submitted that the benefits under the scheme were to be governed by the standard norms and that the salary drawn by the petitioners after the cut-off date, i.e., 31.07.2016, as well as the benefits beyond Rs.15 lakh, shall be paid out of the Corporation’s resources in a staggered manners.
The petitioners, after having accepted the aforesaid offer and after the benefits under the Voluntary Retirement Scheme were released in their favour, have filed the instant petition, which, according to the respondents, is an afterthought. It is contented that the petitioners, having availed the benefits flowing from the aforesaid Voluntary Retirement Scheme, have approached this Court on false and flimsy grounds and that too after a gap of more than five years. The respondents submit that the petitioners have failed to offer any explanation for the delay in approaching this Court. Insofar as the averment of the petitioners that they had preferred a representation is concerned, the respondents have submitted that no such representation was ever received by them and, therefore, there was no occasion for the respondents to accord consideration to the same. Learned counsel appearing on behalf of the respondents, in the aforesaid backdrop, submits that that petitioners have not approached this Court with clean hands and have suppressed material facts. It is, therefore, contended that the present writ petition, being devoid of any merit, deserves to be dismissed.
Having heard learned counsel for the parties and perused the material placed on record, the controversy which arises for consideration is whether the petitioners can be denied salary for the period intervening between the submission of their request for voluntary retirement and its acceptance by the competent authority, particularly when they continued to remain in service and discharged their duties during the said period.
The undisputed position emerging from the record is that the petitioners submitted their request seeking voluntary retirement, which was accepted by the competent authority only after a period of approximately seven months. During the intervening period, the petitioners continued to remain in service and, as pleaded, discharged the duties assigned to him. There is nothing on record to suggest that the petitioner’s services stood terminated or that they were relieved from service during the said period.
The mere submission of a request seeking voluntary retirement cannot, by itself, bring the relationship of employer and employee to an end where the applicable rules contemplate acceptance of such request by the competent authority. Until such acceptance, the petitioners continued to remain in service. The subsequent acceptance of the request for voluntary retirement cannot retrospectively alter the legal character of the period during which the petitioners continued in service and discharged their duties.
The principle assumes greater significance in the present case, inasmuch as the petitioners claims to have actually rendered service during the intervening period. Salary is the consideration attached to the service rendered by an employee and constitutes a legitimate service entitlement. The respondents, having permitted the petitioners to continue in service and having accepted their services, cannot, in the absence of any statutory or other lawful justification, deny him the salary attached to such service.
The Hon’ble Supreme Court in Man Singh v. State of Uttar Pradesh, Civil Appeal No(s). 7841 of 2011, decided on 31.03.2022, while considering the entitlement of an employee who had actually discharged his duties, observed as under:
“We find that the High Court has failed to consider the fact that even if the appointment was irregular, the appellant had discharged the duties and in lieu of duties, he had to be paid. The State cannot take any work from any employee without payment of any salary.”
The aforesaid principle, in my considered view, applies with greater force to the facts of the present case. Unlike a case, where the very appointment of an employee may be under challenge, there is no dispute in the present case that the petitioners were not duly engaged in service and continued to discharge their duties during the period intervening between the submission of their requests for voluntary retirement and the acceptance thereof by the competent authority. The respondents, having permitted the petitioners to continue in service and having accepted the services rendered by them during the said period, cannot simultaneously deny them the corresponding remuneration. The mere fact that the petitioners had submitted their requests for voluntary retirement in June, 2016, would not, by itself, extinguish their entitlement to salary for the period during which they continued to remain in service and actually discharged their duties. The subsequent acceptance of their requests on 01.02.2017 cannot retrospectively convert the period during which they continued to serve the Corporation into a period of absence from service or deprive them of the remuneration attached to the services actually rendered.
The principle laid down by the Hon’ble Supreme Court is, therefore, squarely attracted to the facts of the present case. The respondents cannot be permitted to retain the benefit of the services actually rendered by the petitioners without payment of the salary lawfully attached thereto. Any withholding of such salary must have the sanction of law or of an express and applicable provision governing the service conditions of the petitioners. In the absence of any such lawful justification, the petitioners cannot be denied the salary for the period during which they continued in service and discharged their duties.
The respondents cannot be permitted to approbate and reprobate at the same time. Having treated the petitioners as employees during the intervening period, permitted them to discharge their official duties and accepted the benefit of the services rendered by them, the respondents cannot, for the purpose of denying salary, retrospectively treat the petitioners as though they had ceased to be in service from the date on which they submitted their requests for voluntary retirement. Such an approach would result in the respondents retaining the benefit of the services rendered by the petitioners without discharging the corresponding obligation to remunerate them.
The acceptance of the VRS benefits by the petitioners does not, by itself, disentitle them from claiming salary for services independently rendered during the period prior to acceptance of their requests for voluntary retirement. The retiral benefits flowing from the VRS and the salary payable for the period during which the petitioners continued in service operate in different fields. The former arises upon the acceptance and implementation of voluntary retirement, whereas the latter arises from the services actually rendered prior to cessation of the employer-employee relationship. Unless the VRS scheme expressly and lawfully provides otherwise, the receipt of retiral benefits cannot be construed as a waiver of salary already earned for services rendered before the date of retirement.
Equally, the plea of the respondents that the petitioners are seeking salary beyond the cut-off date of 31.07.2016 cannot, by itself, furnish a valid basis for withholding salary. The respondents must demonstrate the specific provision of the VRS, service rules or other statutory authority which lawfully extinguishes the petitioners’ entitlement to remuneration for services actually rendered after the said date and prior to acceptance of their requests for voluntary retirement. A mere reference to a cut-off date, without demonstrating its legal effect upon salary already earned by an employee who continued to remain in service, cannot operate to deprive such employee of an accrued entitlement.
It is also significant that the respondents have not placed on record any order showing that the petitioners were placed on leave without pay, suspended, relieved, or otherwise prohibited from discharging their duties during the period for which salary has been claimed. In the absence of any such material, and particularly when the petitioners continued to remain in service until 01.02.2017, the withholding of salary for the period from 01.07.2016 to 31.01.2017 cannot be sustained merely on the basis of the subsequent acceptance of their voluntary retirement.
The subsequent acceptance of voluntary retirement cannot have the effect of retrospectively converting a period of actual service into a period for which no remuneration was payable. To hold otherwise would mean that the petitioners rendered service at the instance and with the knowledge of the respondents, the respondents accepted the benefit of such service, but no corresponding obligation to pay for such service arose. Such a consequence would be contrary to the principle laid down by the Hon’ble Supreme Court in Man Singh (supra).
In the facts of the present case, therefore, the respondents cannot be permitted to retain the benefit of the services actually rendered by the petitioners while simultaneously denying them the corresponding salary. The entitlement to salary for the period of actual service is distinct from and anterior to the petitioners’ subsequent retirement under the VRS. Unless the respondents are able to establish a lawful provision specifically disentitling the petitioners to such salary, the same cannot be withheld.
So far as the objection regarding delay and laches is concerned, the relief sought by the petitioners pertains to a quantified monetary/service entitlement allegedly withheld by the respondents. The mere passage of time, particularly where the petitioners assert that they had approached the respondents for release of the withheld salary, cannot by itself extinguish an otherwise established entitlement. At the same time, the Court is conscious that delay in invoking writ jurisdiction is a relevant consideration; however, once the underlying entitlement is found to have accrued and the withholding thereof is found to be without lawful justification, the relief cannot be denied solely on the ground of delay without examining the nature of the claim and the explanation, if any, furnished on record.
In the facts of the present case, therefore, the respondents cannot be permitted to retain the benefit of the services rendered by the petitioners while simultaneously denying them the corresponding salary. Such a course would result in withholding an accrued service entitlement without any demonstrated authority of law.
Conclusion
For the foregoing reasons, the writ petition is allowed.
The respondents are directed to release the salary payable to the petitioners for the period of seven months intervening between the date of their request for voluntary retirement i.e 01.07.2016 and the date on which the said request was accepted i.e 31.01.2017, subject to verification of the period during which the petitioner actually remained in service and discharged their duties, in case there is no legal impedement
The aforesaid exercise shall be completed by the respondents within a period of four weeks from the date a copy of this order is served upon them.
The petition stands disposed of in the above terms.