When Statute Enables Withdrawal Of Voluntary Retirement, Employers Shouldn't Act With Undue Haste & Refuse It: Kerala High Court

The Kerala High Court recently laid down that a request for withdrawal of an application for voluntary retirement that is made within five days of submitting such application, as enabled by Rule 48-A(4) of the CCS (Pension) Rules, 1972, cannot be refused on any premise. 

Rule 48-A (4) precludes withdrawal of a notice seeking voluntary retirement except with the specific approval of the appointing authority, provided that such request for withdrawal is made before the intended date of his retirement.

The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran observed that although the petitioner-applicant had sought for waiver of the notice period of three months while submitting his request for voluntary retirement at the first instance, it was axiomatic that the respondent authorities had acted with undue haste, without arriving at a proper satisfaction required as per statute, to waive the notice period.

The Court added that the very purpose behind affording a notice period in the statute itself is to enable the applicant to take a well considered decision about his career and reiterate his decision to take voluntary retirement, so that the same is not actuated by any extraneous feelings or emotions, at the spur of a moment.

"That precisely should be the reason for an enabling provision to withdraw a request for voluntary retirement, before the retirement is to take effect in accord with the statute. In the given facts, we are not in the least hesitant to observe that the purpose of notice period is frustrated. We are of the view that the respondents, being representatives of an entity under the Union Government, ought to have acted with all fairness, as a model employer, guided not merely by the letter of the Rules but by its spirit as well, with a topping of compassion and humane considerations, wherever it deserves," the Court observed in this regard. 

The petitioner, who was working as a Senior Accountant under the Director of Accounts (Postal) (2nd respondent) submitted his application for voluntary retirement on medical grounds on October 7, 2021. However, the petitioner submitted another request (by hand) before the Deputy Director (the 3rd respondent) seeking withdrawal of his earlier application on the very next day. This claim was denied by the said authority.

Despite the petitioner sending email requests to his senior authorities including the 2nd and 3rd respondents within the next few days, he received a mail order dated October 8, 2021, informing him that his application for voluntary retirement was accepted with retrospective effect from October 8. The applicant received a further communication that his request for withdrawal of voluntary retirement could not be considered. 

The respondents averred that the petitioner had in his application for voluntary retirement, sought the waiver of the three months notice period, and he was accordingly permitted to retire from service with effect from October 8, 2021, under Rule 48 of the CCS (Pension) Rules, 1972, and his name was also struck off from the staff strength of the office. It was argued that since the Rule does not permit withdrawal of the request for voluntary retirement after the retirement had taken effect, orders were accordingly issued for rejecting the request for withdrawal. 

The Tribunal dismissed the petitioner-applicant's application on the ground that he could withdraw his request for voluntary retirement only before it is accepted by the competent authority, and found that in the present case, the petitioner's request for withdrawal was received only after the application for voluntary retirement had been accepted by the authorities. 

The Court at the outset perused Rule 48-A of the CCS (Pension) Rules, 1972, and noted that the provision envisages the satisfaction of the appointing authority in respect of various factual parameters, namely,

i. the applicant had completed 20 years of qualifying service; 

ii. the applicant had completed 20 years of qualifying service;

iii. his application is not liable to be refused within the notice period; 

iv. in case the applicant seeks for a notice period less than three months, he had stated reasons therefor;

v. the appointing authority has to consider such a request for a notice period less than three months on merits; 

vi. the appointing authority has to satisfy itself that the curtailment of the period of notice will not cause any administrative inconvenience; and 

vii. upon such satisfaction the notice period can be relaxed subject to such further condition as contained in sub-rule (3-A)(b) regarding commutation of part of his pension.

The Court however noted that in the present case, the entire exercise as contemplated by the provision had been completed by the respondent authority in a day's time, and thereby discerned that a sympathetic consideration of the petitioner's request would thus be an 'impossibility' in itself if all the relevant criteria were to be satisfied by the authority. 

"True that there was a request to waive the notice period. However, it is axiomatic that the respondents/authorities have acted with undue haste, without arriving at a proper satisfaction required as per statute, to waive the notice period of three months. There is nothing on record indicating that the application for a notice period less than three months was considered on merits. Nor is there anything to show that the curtailment of the notice period will not cause any administrative inconvenience. On the top of all, if a request for withdrawal of voluntary retirement is made within five days, as enabled by the proviso to Rule 48-A(4) of the Rules, we cannot justify the refusal of such a request on any count/premise, whatsoever," the Court observed. 

Resultantly, the Court set aside the impugned order of the Tribunal and quashed the order refusing acceptance of the petitioner's request for withdrawal of his application for voluntary retirement issued by the 3rd respondent authority. 

It thus directed the competent authority to reinstate the petitioner with effect from October 8, 2021. The Court added that while the petitioner shall not be entitled to any salary for the period over which he had not worked, the said period shall be counted for all other purposes including pensionary and other retiral benefits.

The Court directed its Order regarding reinstatement ought to be complied within a period of one month, failing which the petitioner would be entitled to salary and all other emoluments from the date on which the said period of one month expires.

The petitioner was represented by Advocates S. Jathin Das, Sumodh Madhavan Nair, T.A. Prakash, G.S. Sanal Kumar, and Arun S. DSGI S. Manu appeared on behalf of the respondents. 

Case Title: Faziludeen v. Union of India & Ors. 

Citation: 2023 LiveLaw (Ker) 416 

Case Number: OP (CAT) NO. 22 OF 2023

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