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CASE NO.:

Appeal (civil) 1050-1051 of 2003

PETITIONER:

P. Lal

RESPONDENT:

Union of India & Ors.

DATE OF JUDGMENT: 05/02/2003

BENCH:

Syed Shah Mohammed Quadri & S. N. VARIAVA.

JUDGMENT:

J U D G M E N T

[Arising out of SLP (C) Nos. 20963-20964 of 2001]

S. N. VARIAVA, J.

Leave granted.

These Appeals are against a Judgment dated 4th July, 2001.

Briefly stated the facts are as follows:

Respondent No. 3 worked in the Research and Analysis Wing

(RAW) of the Government of India from 1982 to September 1990.

With effect from October 1990 Respondent No. 3 was repatriated to

the State of Punjab. He did not join duty till 30th September, 1991.

On 24th October 1991, i.e. 23 days later, Respondent No. 3 applies for

Ex-India leave. Even before the leave could be sanctioned

Respondent No. 3 leaves India and goes to England. From England he

again applies for further leave. Leave is sanctioned till 10th January,

1992. Respondent No. 3 is informed that no further extension would

be granted even on medical grounds. Respondent No. 3 still does not

join duty. He then sends in, on 30th June, 1992, an application for

voluntary retirement. However, on 19th July, 1992, he sends a

telegram withdrawing his application for voluntary retirement. As

Respondent No. 3 continues to remain absent he was charge-sheeted

on 14th January, 1993. On 12th April, 1993 he reports for duty in the

Office of the D.G.P., Punjab.

On 5th May, 1993 he again applies for voluntary retirement with

immediate effect. He deposits Rs. 30,870/- in lieu of three months'

advance notice. Respondent No. 3 does not even wait for his

application to be accepted. He again goes away abroad. As

Respondent No. 3 had applied for voluntary retirement DGP, Punjab

recommends that the charge-sheet against him be withdrawn. On 27th

September, 1993 the Government of India rejects the request for

voluntary retirement on the ground that three months' notice period

had not been given. The Government of Punjab by its representations

dated 29th September, 1993 and 8th July, 1994 requests the

Government of India to accept the application for voluntary

retirement. This request is again turned down by the Government of

India on 13th September, 1994. As Respondent No. 3 was not even

in India and was not reporting for duty the Government of Punjab, on

29th November, 1994, points out to the Government of India that

Respondent No. 3 has not been attending office since 5th May, 1993

and that his three months' notice period may be considered from the

date of application i.e. 5th May, 1993 and he may be allowed to

voluntary retirement. On 2nd March, 1995 the Government of India

permits Respondent No. 3 to retire from service with effect from May,

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1993. It may be mentioned that in the meantime, on the

recommendation of the D.G.P., Punjab, the charge-sheet had been

dropped against Respondent No. 3. This was done in view of the fact

that he was retiring voluntarily.

In his application for voluntary retirement, Respondent No. 3

had given his contact address as follows:

"Sh. R. K. Sharma,

R-862, New Rajinder Nagar,

New Delhi - 110 060."

The order of the Government of India dated 2nd March, 1995

permitting Respondent No. 3 to retire from service was forwarded to

Respondent No. 3 at the above mentioned address. It was however

received back undelivered from the postal authorities with the remarks

"despite repeated visits, could not be delivered to addressee as he was

not available". The D.G.P., Punjab therefore deputes a Constable to

deliver the Order to Respondent No. 3. When the Constable goes to

the above address the father-in-law of Respondent No. 3 states that

no officer by name R. K. Sharma stays in this house. The father-in-

law further states that he knows nothing about R. K. Sharma.

On 18th April, 1995 Respondent No. 3 withdraws his request for

voluntary retirement. Significantly, the address given in his letter is

the above mentioned address. This shows that Respondent No. 3 was

purposely evading receipt of Government Order dated 2nd March,

1995. On 20th June, 1995 the Government of India rejects his

request for withdrawal of voluntary retirement on the ground that the

period within which such request could be made had already expired.

By his letters dated 20th July, 1995 and 4th March, 1996 Respondent

No. 3 again requests the Government of India to allow him to

withdraw his application for voluntary retirement. Surprisingly, on 14th

August, 1997, the Government of India accepts the request of

Respondent No. 3 for withdrawal of voluntary retirement.

At this stage it must be mentioned that documents brought on

record show that between the period 15th March, 1996 and 12th

August, 1997 Respondent No. 3 took up employment with a foreign

firm by name M/s. California Designs and Constructions Inc. and

represented the firm, as its director, before various departments of the

Government of Punjab and the Government of Haryana. It is being

assumed that Respondent No. 3 concealed this fact from the

Government of India and that the Government of India accepted his

request for withdrawal of voluntary retirement in ignorance of this

fact.

The Appellant therefore approached the Central Administrative

Tribunal against re-induction of Respondent No. 3 into service. The

Appellant claims that by such re-induction his seniority in the cadre

gets affected. The Government and Respondent No. 3 contested the

application. Before the Central Administrative Tribunal it was urged

that the Appellant had no locus to challenge the action of the

Government in permitting Respondent No. 3 to withdraw his

application for voluntary retirement. It was also urged that the

Central Administrative Tribunal had no jurisdiction. The Central

Administrative Tribunal negatived both these contentions. The Central

Administration Tribunal holds that Respondent No. 3 having left

without waiting for his application to be sanctioned and Respondent

No. 3 having taken up employment with a foreign company amounted

to severance of the relationship of master and servant. It was held

that as the severance had attained finality the Government of India

had no jurisdiction to pass the impugned order dated 14th August,

1997. It was held that the effect of the Order was to give lateral entry

into service which was not permissible. It was held that Respondent

No. 3, by his conduct, having severed the relationship of master and

servant could not now be allowed to come back into service. By its

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Order dated 3rd February, 1998 the Central Administrative Tribunal

quashes the Order dated 14th August, 1997 allowing Respondent No. 3

to withdraw his voluntary retirement.

Respondent No. 3 as well as the Government of India file Writ

Petitions in the Punjab & Haryana High Court challenging the order

dated 3rd February, 1998 passed by the Central Administrative

Tribunal. On 10th September, 1998 these Writ Petitions were taken

up for admission. At that stage a statement is made on behalf of

Respondent No. 3 (herein) that he will not claim seniority over the

Appellant (herein).

During the pendency of the Writ Petitions, the Government of

India produces an affidavit of one Malkait Singh Sidhu who claimed

that he was President of M/s. California Designs and Construction Inc.

In the affidavit it was claimed that Respondent No. 3 was not a

Director in this Company. It was claimed before the High Court that

Respondent No. 3 had not taken employment with this firm. That this

was a false stand came to light after arguments in the two Writ

Petitions were over. The High Court has, in the impugned judgment,

set out what happened. The relevant portion reads as follows:

"Before proceeding further, we deem it proper to

mention that after conclusion of the arguments, Shri

P. Lal filed C. M. 27489-50 of 2000 in C.W.P. No.

6196 of 1998 for placing on record additional

affidavit dated 18.11.2000 along with Annexure

R1/26 to R1/29 to show that between 1995 and

1997, Shri R. K. Sharma had actively represented

M/s. California Design and Construction INC for the

purpose of award of contract for construction,

erected and commission of ten sewage treatment

plants under Yamuna Action Plan. He also filed C.M.

No. 27491-92 of 2000 in C.W.P. No. 6461 of 1998

for placing on record additional affidavit dated

18.11.2000 and documents Annexure R3/26 to

R3/29, C. M. No. 28355-56 of 2000 was also filed on

behalf of Shri R. K. Sharma for placing on record his

affidavit dated 27.11.2000 and documents

Annexures P35 to P40 to show that he was no longer

Director of M/s. California Designs and Constructions

India Ltd.

We may also mention that while hearing

C.W.P. No 14542 of 2000 filed by M/s California

Design and Construction India Ltd. for quashing the

action taken by the Income-tax authorities to

recover tax from the payment made to it by the

Government of Haryana, counsel representing the

petitioner in that case had produced a copy of the

agreement entered into between his client and the

State of Haryana which was signed by Shri R.K.

Sharma on behalf of the petitioner-company as its

director and he had represented to the Government

of Haryana that he was the Managing Director of the

said company. After taking note of this, we had

directed the listing of these petitions for further

consideration. On 20.11.2000, counsel appearing for

Union of India in C.W.P. No. 6461 of 1998 sought

adjournment to place on record an affidavit on behalf

of Government of India explaining its position on the

issue of employment of Shri R. K. Sharma.

Thereafter, Shri R. K. Mitra, Deputy Secretary,

Ministry of Home Affairs, New Delhi filed an affidavit

dated 25.11.2000 stating therein that the

Government of India never made a statement that

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Shri R. K. Sharma had not taken employment with a

foreign company. At the same time, he averred that

it is for the State Government to take appropriate

action in the matter."

This shows that Respondent No. 3 had attempted to mislead the

High Court of Punjab and Haryana. He obviously had also mislead the

Government of India by getting them to file, before the High Court of

Punjab and Haryana, the affidavit of Malkait Singh. In any event now

the Government of India and the Government of Punjab know that

Respondent No. 3 had not just absented himself from duty but had in

fact taken up employment with a foreign firm and represented it with

various departments of the State Government. Their conduct in

continuing to side with Respondent No. 3 is to say the least surprising.

The High Court, after considering the submissions of the parties,

negatives the contentions that the Appellant did not have locus. It is

held that the Central Administrative Tribunal had jurisdiction. The

High Court has adversely commented upon the conduct of Respondent

No. 3 in going abroad without prior permission; in remaining absent

for such a long time, in taking up employment with a foreign company.

The High Court then holds that as the order of the Government of

India dated 2nd March, 1995 was not communicated to Respondent No.

3 the relationship of master and servant continued. It is held that

Respondent No. 3 was therefore entitled to treat himself as continuing

in service and was not even required to submit an application for

withdrawal of his request for voluntary retirement. The High Court

holds that the decision of the Government of India to allow

Respondent No. 3 to withdraw the request for voluntary retirement

cannot be termed as illegal or vitiated due to want of jurisdiction. The

Writ Petitions were accordingly allowed. The High Court however

directed that disciplinary proceedings be held against Respondent No.

3. Even though, on 10th September, 1998 a statement had been made

that Respondent No. 3 would not claim seniority over the Appellant,

the High Court in the impugned Order has held as follows:

"In the result, the writ petitions are allowed. Order

dated 3.2.1998 passed by the Tribunal is set aside. This

shall be subject to the direction that Shri R. K. Sharma

shall not be assigned seniority over Shri P. Lal and other

officers, who had been promoted during his absence from

duty till the government takes a comprehensive decision

on the allegations of his absence from duty, going abroad

without prior permission, taking up employment with a

foreign company and joining the Board of Directors of a

company registered in India and he is exonerated in the

departmental enquiry, if any, held in these matters."

Thus now the High Court has left it open for Respondent No. 3 to claim

seniority if he is exonerated in the departmental enquiry or if the

departmental enquiry is dropped. As is being set out hereinafter there

is already a proposal to drop the departmental enquiry.

At this stage it is appropriate to mention that after notice was

issued on these SLPs Respondent No. 3 filed an affidavit in this Court

in which he inter alia states as follows:

"Due to the malicious and selfish conduct of the Petitioner

and the State, the answering respondent was left with no

other option but to believe that his request for withdrawal

of voluntary retirement has been rejected and, therefore,

the petitioner took up an employment in a private firm in

an honorary capacity, from 28.3.1996 to 12.8.1997.

xxx xxx xxx

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V. The allegation that the answering respondent

immediately on submitting his application for voluntary

retirement worked with M/s. California Design and

Construction Inc. U.S.A. as Managing Director is not

admitted and hence denied. It is further submitted that

the answering respondent did not take any employment in

India in any company, concern or firm till 28.3.1996. It is

however submitted that on recovery from his ill-health and

in absence of any response to his application for voluntary

retirement, the answering respondent filed an application

dated 18.4.1995 to withdraw the request for voluntary

retirement and the same was rejected by Union of India on

20.6.95. The answering respondent herein was left with

no option but to take a job in a private firm in India in

honorary capacity to keep himself occupied. The said

employment was only for a short period from 28.3.1996 to

12.8.1997.

xxx xxx xxx

It is submitted that the answering respondent took an

employment in a private firm in India in an honorary

capacity on 28.3.1996, as he neither received any reply to

various representations made by him for withdrawal of

request for voluntary retirement nor was given any posting

order till 18.8.98. It is submitted that Union of India

erroneously passed the order dated 20.6.1995 due to lack

of correct and true information furnished by the State

Government. The State Government illegally, erroneously

and unilaterally severed the master servant relationship.

The State Government's following actions, made the

answering respondent come to the conclusion that his

services are no more required by the authorities :-

i) No posting order given to the answering respondent

pursuant to his joining report dated 18.4.1995.

ii) For all administrative and practical purposes, the

State Government struck off the name of the

answering respondent from the Punjab IPS Cadres

Gradation List.

iii) No salary given to answering respondent during the

period 5.5.1993 to 18.8.1998.

iv) Eight letters issued from 26.6.1995 to 4.4.1997 by

State Government declaring answering respondent

has retired from service. (emphasis supplied)

It is further submitted that the answering respondent on

the basis of sequence of events and conduct of parties was

compelled to believe that his employment in a private

organization would not violate any rules as he had been

retired by the State Government. Accordingly, the State

Government or for that matter the petitioner cannot have

any grievance on that account and are estopped from

making such reckless allegations."

The Appellant has now produced a letter dated 15th March, 1996

addressed by Respondent No. 3 as a Director of M/s. California Design

and Construction INC. to the Superintendent Engineer to the Public

Health Circle, Faridabad. This shows that even on 15th March, 1996

Respondent No. 3 was a director of this foreign firm. His statement of

oath before this Court that he took employment with effect from 28th

March, 1996 is shown to be patently false. It is clear that he was

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employed with the foreign firm even prior to 28th March, 1986.

Before we consider the arguments it is important to set out

certain other facts. Respondent No. 3 had also filed a Special Leave

Petition before this Court challenging that portion of the impugned

judgment which held that the Appellant had locus; that the Central

Administrative Tribunal had jurisdiction and the directions to hold a

disciplinary enquiry against him. The Special Leave Petition was

dismissed by an Order dated 10th December, 2001. This Court

however clarified that the enquiry must be conducted without being

influenced by any observations made by the High Court. Thus so far

as Respondent No. 3 is concerned the findings in the impugned

judgment, that the Appellant had locus and that the Central

Administrative Tribunal had jurisdiction, have become final.

In these Special Leave Petitions by Order dated 11th January

2002, this Court stayed the impugned Judgment. This necessarily

meant that the Judgment of the Central Administrative Tribunal

became effective again. The effect of the order of the Central

Administrative Tribunal is that Respondent No. 3 ceased to be in

service. In view of the above position the Principal Secretary to the

Government of Punjab, by an Order dated 23rd January, 2002, held

that Respondent No. 3 ceased to be in service with immediate effect in

view of the order of this Court. Surprisingly another Principal

Secretary, one Mr. S. K. Singh, by an Order dated 31st March, 2002

withdraws the earlier order dated 23rd January, 2002. Respondent

No. 3 immediately assumes charge as Inspector General of Police on

31st March, 2002. By an Order dated 18th April, 2002 he is posted

against the vacant post of ADGP / Internal Vigilance Cell to look after

the Litigation Wing and Internal Vigilance Cell. On 10th May, 2002

these facts are then brought to the notice of this Court. This Court

therefore directs the Principal Secretary to state on affidavit as to how

the Order dated 31st March, 2002 came to be passed in violation of the

order passed by this Court on 11th January, 2002. The Principal

Secretary has filed an affidavit dated 13th June, 2002 stating that the

earlier Order of 23rd June, 2002 had been passed by the Principal

Secretary to the Government of Punjab, but that on a representation

submitted by Respondent No. 3 it was found that the power to relieve

an officer from service rests with the Government of India and not

with the Government of Punjab. It was stated that it was found that

the Order dated 23rd January, 2002 was without jurisdiction and

deserved to be withdrawn and was therefore withdrawn. It was

stated that the subsequent order was passed after obtaining legal

advice. The reasoning given is entirely untenable. The effect of the

order of the Central Administrative Tribunal was that Respondent No. 3

ceased to be in service. Respondent No. 3 was not being relieved by

Order dated 23rd January, 2002. The Order dated 23rd January, 2002

merely informed Respondent No. 3 that he had ceased to be in

service. In any event, in view of the stay order, Respondent No. 3

could not have been given a posting order. By an Order dated 24th

May, 2002, the posting order of R. K. Sharma has been held in

abeyance pending decision in these Appeals. But Respondent No. 3

is still allowed to continue in service in breach of an interim order of

this Court and in violation of the order of the Central Administrative

Tribunal.

One last fact which requires to be mentioned is that as per the

direction of the High Court a charge-sheet has been issued against

Respondent No. 3 on 27th September, 2001. As has now become

common for Respondent No. 3, he again applies for voluntary

retirement on 10th October, 2001. The D.G.P. again recommends that

the charge sheet be dropped as he has applied for voluntary

retirement. Following the recommendation for dropping of the charge

sheet Respondent No. 3 has, on 26th November, 2001, again

withdrawn his request for voluntary retirement.

The submissions of the parties have to be considered in the light

of the above facts.

Mr. Jethmalani submitted that Respondent No. 3 is from the

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1967 Batch of I.P.S. Officer, whereas the Appellant is from the 1969

Batch, i.e. two years junior to him. He submitted that it is for the

Government to decide whether or not to accept the request of

Respondent No. 3 for withdrawal of voluntary retirement. He

submitted that the Appellant had no locus to challenge the action of

the Government in accepting the request for withdrawal of voluntary

retirement. He submitted that the Central Administrative Tribunal had

no jurisdiction to entertain the Petition filed by the Appellant. He

submitted that under Section 14 of the Administrative Tribunals Act,

1985, the Tribunal exercises such jurisdiction as was exercised by the

Courts earlier. He submitted that it is settled legal position that the

Court only protect legal rights. He submitted that mere expectations

or accidental windfalls do not give any right and Courts would not

protect claims based on expectations or accidental windfalls. He

submitted that Section 19 of the Administrative Tribunal Act provides

that it is only a "person aggrieved" who can file an application before

the Tribunal. In support of his submission he relied upon the cases of

Thammanna v. K. Veera Reddy reported in (1980) 4 SCC 62 and Bar

Council of Maharashtra v. M. V. Dabholkar reported in (1975) 2 SCC

702, wherein it has been held that a person aggrieved must be a man

who has suffered a legal grievance i.e. a man who has been wrongfully

deprived of something or to whom something has been refused

wrongfully. He also relied upon the case of Mohd. Shujat Ali v. Union

of India reported in (1975) 3 SCC 76, wherein it has been held that

the right to promotion is not the same thing as a mere chance to

promotion. He submitted that the Appellant is basing his expectations

on an accidental windfall by hoping that Respondent No. 3 would not

be in service. Mr. Jethmalani submitted that the Appellant is not a

person aggrieved in as much as he has no real right to claim seniority

over Respondent No. 3. He submitted that the Appellant has not been

deprived of anything. He submitted that in any event the Appellant's

complaint that his seniority would be affected, has been protected and,

therefore, the Appellant can no longer have any complaint regarding

seniority.

We are unable to accept the submissions of Mr. Jethmalani. As

has been pointed out hereinabove, against the portion of the

impugned judgment which held that the Appellant had locus and that

the Central Administrative Tribunal had jurisdiction, Respondent No. 3

had filed a Special Leave Petition. That has been dismissed by this

Court on 10th December, 2000. It is therefore not open to Respondent

No. 3 to again raise these contentions. These findings in the

impugned judgment have become final as against Respondent No. 3.

Even otherwise, we see no substance in these submissions.

Section 3(q) of the Administrative Tribunals Act defines "service

matters" as follows:

"(q) "service matters", in relation to a person, means all

matters relating to the conditions of his service in

connection with the affairs of the Union or of any

State or of any local or other authority within the

territory of India or under the control of the

Government of India, or, as the case may be, of any

corporation or society owned or controlled by the

Government, as respects -

(i) remuneration (including allowances),

pension and other retirement benefits;

(ii) tenure including confirmation, seniority,

promotion, reversion, premature retirement

and superannuation;

(iii) leave of any kind;

(iv) disciplinary matters; or

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(v) any other matter whatsoever."

Thus, amongst other things, the question of seniority is a matter which

is a service matter. Section 14 vests in the Tribunal the jurisdiction,

power and authority earlier exercised by Courts, amongst others, in

respect of service matters. As admitted by Mr. Jethmalani if

Respondent No. 3 is allowed to remain in service he would be senior to

the Appellant. The Appellant's seniority would be affected. If in fact

Respondent No. 3 has ceased to be in service the question of seniority

between Appellant and Respondent No. 3 would not arise. Thus

Appellant can legitimately point out that Respondent No. 3 has ceased

to be in service. Thus Appellant's claim is not based on mere

expectations or accidental windfall. The Appellant is a person

aggrieved and has locus. Even otherwise, as has been explained in

great detail, both by the Tribunal as well as the High Court, the

Tribunal had jurisdiction to entertain the application filed by the

Appellant. Merely because Respondent No. 3 made a statement before

the High Court that he would not claim seniority would not be a ground

for holding that the Tribunal had no jurisdiction. A statement made in

a Writ Petition before the High Court would not deprive the Appellant

of locus and/or the Tribunal of jurisdiction.

Mr. Jethmalani next submitted that a public servant has a right

to withdraw his request for voluntary retirement at any time until the

retirement becomes effective. He submitted that the relationship of

master and servant does not come to an end until the same is

terminated. He submitted that the relationship of master and servant

does not get severed or ruptured merely because the employee

conducts himself in a manner which gives to the employer a right to

bring about a severance. He submitted that unless and until the

employer takes some positive action and severes the relationship of

master and servant the same would continue. He further submitted

that an IPC Officer is appointed by the President of India. He

submitted that the appointment is notified in the official Gazette and

thus the removal can only be accomplished in a similar manner i.e. by

a Presidential Order duly notified in the Official Gazette. He submitted

that mere notings in the official files or mere administrative orders do

not have the effect of severing the relationship of master and servant.

Mr. Jethmalani submitted that even if it is held that acceptance

of a voluntary retirement need not be by a Presidential Order duly

notified in the Gazette, even then the relationship of master and

servant would not come to an end unless and until there is effective

communication of the order accepting the request for voluntary

retirement. He submits that a termination would take place

automatically on the happening of a particular situation, for example

absence from office, abundant of service etc. only if there is a specific

rule which so provides. He submitted that in the absence of such a

rule termination of service does not take place automatically. He

relied upon sub-rules (2) and (2A) of Rule 16 of the All India Services

(Death-cum-Retirement) Rules, 1958 which read as follows:

"16. Superannuation gratuity or pension.- (1) A

member of the Service shall be required compulsorily to

retire from the service with effect from the afternoon of

the last day of the month in which he attains the age of 58

years:

Provided that he may be retained in service after the

last day of the month in which he attains the age of 58

years on public grounds which, shall be recorded in

writing-

(a) for an aggregate period not exceeding six

months by the State Government; and

(b) for any period beyond six months, with the

sanction of the Central Government;

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Provided further that a member of the Service shall

not be retained in service beyond the age of 60 years

except in very special circumstances.

(2) A member of the service may, after giving at least

three months' previous notice in writing, to the State

Government concerned, retire from service on the date on

which such member completes thirty years of qualifying

service or attains fifty years of age or on any date

thereafter to be specified in the notice:

Provided that no member of the Service under

suspension shall retire from service except with the

specific approval of the Central Government.

(2A) A member of the service may, after giving three

months' previous notice in writing to the State

Government concerned retire from service on the date on

which he completes 20 years of qualifying service or any

date thereafter to be specified in the notice:

Provided that a notice of retirement given by a

member of the service shall require acceptance by the

Central Government if the date of retirement on the expiry

of the period of notice would be earlier than the date on

which the member of the service could have retired from

service under sub-rule (2):

Provided further that a member of the Service, who

is on deputation to a corporation or company wholly or

substantially owned or controlled by the Government or to

a body controlled or financed by the Government, shall not

be eligible to retire from service under this rule for getting

himself permanently absorbed in such corporation,

company or body.

He submitted that at the relevant time Respondent No. 3 had not

completed 30 years of service or attained 50 years of age and

therefore sub-rule (2) would not have been applicable. He submitted

that under sub-rule (2A) the notice for voluntary retirement would not

take effect until it was accepted by the Central Government. He

submitted that acceptance could only take place if there was effective

communication of the acceptance.

Mr. Jethmalani relied upon the case of Shambhu Murari Sinha

v.Project & Development India reported in (2000) 5 SCC 621. In this

case the question was whether it is open to a person having exercised

the option of voluntary retirement to withdraw his application before it

is made effective. Relying upon earlier Judgments of this Court, it was

held that the voluntary retirement, in spite of its acceptance, can be

withdrawn before the effective date. Mr. Jethmalani also relied upon

the case of Bank of India v. O. P. Swarnakar reported in (2002) 9

SCALE 519 wherein also it is held that a request for voluntary

retirement can be withdrawn before it becomes effective. He

submitted that the Government's Order dated 2nd March, 1995,

accepting the request for voluntary retirement, had not been

communicated to Respondent No. 3. He submitted that Respondent

No. 3 was therefore entitled to withdraw his request for voluntary

retirement. He submitted that the application of Respondent No. 3

dated 18th April, 1995 (withdrawing his request for voluntary

retirement) was prior to the retirement becoming effective as till that

date the Government's order had not been communicated to him. He

submitted that the High Court was right in holding that the relationship

of master and servant had continued. Mr. Jethmalani relied upon the

affidavit filed by the Union of India in this Court on 21st March, 2002,

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wherein it has been averred that the order accepting voluntary

retirement had not become effective as the same had not been served

on Respondent No. 3 before he withdrew his request for voluntary

retirement. Mr. Jethmalani pointed out that even according to the

Government of India the relationship of master and servant had not

been terminated. He pointed out that by an Order dated 27th

February, 1997 leave has been sanctioned to Respondent No. 3. Mr.

Jethmalani also relied upon an affidavit dated 2nd April, 2002 filed by

the State of Punjab, wherein it has been stated that gazette

notification of a retirement order is mandatory. Mr. Jethmalani

submitted that it was an admitted position that in this case there was

no gazette notification. At this stage itself it must be pointed out that

this stand taken by the State of Punjab, on oath, is contrary to the

stand taken by them, on oath, in an affidavit filed by them before the

Punjab & Haryana High Court on 13th November, 1998. In that

Affidavit it is inter alia stated as follows:

"No grounds are available to the petitioner to challenge

order passed by the CAT :-

a) The order passed by the Central Administrative Tribunal

is proper valid and depict the correct interpretation of

law. The petitioner himself wanted his voluntary

retirement to be effective with immediate effect vide

notice/application dated 5.5.93. Intention of petitioner

was clear when he deposited 3 months salary in lieu of

notice. His voluntary retirement was accepted by

Government of India and order issued to this effect

were intimated through the answering respondent and

Director General of Police, Punjab at his last notified

address. The orders were also published in the News-

papers.

b) The order of the acceptance of voluntary retirement was

twice sent to the last notified address of the petitioner

where he was not found available. It appears that the

petitioner intentionally had given wrong address. The

acquittance of voluntary retirement was duly published

in the news-papers. There is no requirement/practice

to get the order of retirement published in the official

Gazette." (emphasis supplied)

Mr. Jethmalani submitted that it was for the Government of India

to decide whether or not to condone absence from duty. He submitted

that Respondent No. 3 was a very good officer who had had an

unblemished record. He submitted that there was nothing wrong in

the Government of India condoning minor lapses on the part of such a

good officer and retaining him in service. Mr. Jethmalani submitted

that as the Government of India desired to retain the services of such

a good officer and as Respondent No. 3 now had only 2 more years of

service left, this Court should not pass any adverse order. Mr.

Jethmalani also suggested that Respondent No. 3's stay abroad and

work with the foreign firm were part of an assignment given to him.

He suggested that it is for this reason that the Government of India

was bound to regularise leave and retain Respondent No. 3 in service.

As against this Mr. Gupta submitted that the conduct of

Respondent No. 3 in leaving India without waiting for the Government

to accept his request for voluntary retirement and thereafter taking an

employment with foreign firm indicates that Respondent No. 3 had

abandoned the service. He submitted that by his own conduct there

was severance of relationship of master and servant. He submitted

that in any event withdrawal of request for voluntary retirement can

only be within the notice period. He submitted that the notice period

was only for 3 months. He submitted that the effective date within

which the request for voluntary retirement could be withdrawn was

only 3 months. He submitted that in any event by Order dated 2nd

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March, 1995, the Government of India had accepted the request of

Respondent No. 3 and permitted him to retire from service. He

submitted that on such acceptance the relationship of master and

servant came to an end. He submitted that thereafter Respondent

No. 3 could not be permitted to withdraw his request for voluntary

retirement. He submitted that the case that Respondent No. 3 had

been sent abroad and/or asked to work for a foreign firm cannot be

believed.

We have considered the submissions of both the parties. As has

been set out, in Shambhu Murari's case and Bank of India's case, an

employee can withdraw his application for voluntary retirement before

the effective date. The effective date would necessarily be the date on

which the retirement takes effect. The request, which Respondent No.

3 had made by his letter dated 5th May, 1993, was to be allowed to

retire voluntarily with immediate effect. He had also deposited Rs.

30,870/- in lieu of three months' notice. Thus so far as Respondent

No. 3 was concerned the effective date was 5th May, 1993. Of course

Rule 16(2A) of the All India Services (Death-cum-Retirement) Rules,

1958 provides that a notice of retirement had to be accepted by the

Government of India. In this case, the Government of India accepted

the request on 2nd March, 1995 and permitted Respondent No. 3 to

retire with effect from May 1993. The moment Government of India

accepted the notice the retirement became effective. The relationship

of master and servant came to an end. We are unable to accept the

submission that the relationship of master and servant did not

terminate till the acceptance was communicated to Respondent No. 3.

It must be remembered that Rules 16(2) and 16(2A) enable a member

to retire from service on giving the required notice. Once such a

notice is given it merely has to be accepted by the Government of

India. The moment it is accepted the retirement would become

effective. If any other view is taken it would lead to absurd results.

Such a view would mean that even though a member had given a

notice for voluntary retirement stopped attending office and/or gone

away abroad and/or taken up some other employment after a number

of years of absence the member could claim to come back into service

because the Government, for some unforeseen reasons, had not

communicated its acceptance. Taken to its absurd length such a

member could after superannuation claim that, as the services were

not terminated, he was entitled to pension and gratuity on the basis

that he had continued in service. The requirement of communication

of acceptance would only arise in cases where, even after giving of a

notice of voluntary retirement the member continues to work/perform

his duties. In such cases the member would need to know from what

date he can stop attending office. In cases where the member has by

his own conduct abandoned service the severance of the relationship

of master and servant takes place immediately on acceptance of

notice. We are unable to accept the submission that the severance of

relationship of master and servant cannot take effect until there is an

Order by the President of India and the same is duly notified in the

Gazette. Rules 16(2) and 16(2A) have been set out hereinabove. All

that it requires is acceptance by the Government of India and not by

the President of India. Admittedly the request for voluntary retirement

has been accepted by the Government of India on 2nd March, 1995.

No provision or rule could be shown which requires such acceptance to

be gazetted. On the contrary, as has been set out hereinabove, in its

affidavit before the Punjab & Haryana High Court, the Government of

Punjab had categorically stated that there was no provision for

gazetting such an order.

That the relationship of master and servant had been severed is

clear from the affidavit filed by Respondent No. 3 in this Court. The

relevant portion has been reproduced hereinabove. Even according to

Respondent No. 3 no posting order had been issued to him.

According to Respondent No. 3 the Government of India had struck

off, his name from the Gradation list, no salary was paid to him and 8

letters have been issued declaring that he has retired from service.

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We are unable to accept Mr. Jethmalani's submission that,

Respondent No. 3 had been sent abroad and asked to take up

employment with a foreign firm by the Government. There is no proof

of such a case. Neither the Government of India nor the Governments

of Punjab/Haryana state that this was so. This appears to us to be an

argument in desperation.

In view of the above it is held that the High Court erred in

coming to the conclusion that the relationship of master and servant

had not been terminated. As has been set out hereinabove, the

relationship of master and servant had been terminated before

Respondent No. 3 sought to withdraw his request for voluntary

retirement on 18th April, 1995. Once relationship of master and

servant had been severed and/or terminated, by this back door

method, Respondent No. 3 could not get back to service. The Order of

the Government of India dated 14th August, 1997 cannot be sustained

and was correctly quashed by the Central Administrative Tribunal. In

this view of the matter the impugned Judgment requires to be and is

hereby set aside. The Order of the Central Administrative Tribunal

dated 3rd February, 1998 is restored.

Mr. Gupta had raised various other submissions. In the view

that we have taken it is not necessary to set out or deal with those

submissions.

Accordingly the Appeals are allowed with costs.

In view of what has happened in the past it needs to be clarified

that Respondent No. 3 has ceased to be in Government service with

effect from May 1993 in the rank/position that he then held. There is

now no necessity of issuing an order terminating his service. All that

is required is correction of official record if they purport to show that

Respondent No. 3 has continued in service. So far as Respondent No.

3 is concerned, this Judgment and Order of Central Administrative

Tribunal are notice to him that his request for voluntary retirement

dated 5th May, 1993 has taken effect from May, 1993. It goes without

saying that with effect from May 1993 Respondent No. 3 would not be

entitled to any pay or any other consequential benefits. It is expected that if any pay and

/or benefits have been given to him the same would be returned/reimbursed by him so that the

concerned Government is not forced to recover the same.