P. Sundari Bhai v. Kerala State Road Transport Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 WA.No. 458 of 2009() -------------------AGAINST THE JUDGEMENT IN WPC.37752/2007 Dated 05/01/2009 .................... APPELLANT(S): PETITIONER: ------------------------- P.SUNDARI BHAI,(W/O LATE J.JUSTUS, CONDUCTOR, KSRTC,ALUVA,EXPIRED ON 22.01.2002), VARUTHATTUVILA VEEDU, PONNAMBI, VELLARADA.PO, THIRUVANANTHAPURAM. BY ADV. SRI.K.P.RAJEEVAN RESPONDENT(S): RESPONDENTS -------------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT,THIRUVANANTHAPURAM. 2. THE DISTRICT TRANSPORT OFFICER, KSRTC, ALUVA. ADV. SHRI.V.V.NANDAGOPAL NAMBIAR, SC, KSRTC FOR R1-2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.R.** ## **K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. -----------------------------------------------------W.A. No.458 of 2009** **-----------------------------------------------------Dated this the 11[th] day of March, 2010** ## **JUDGMENT** ## **Ravindran, J.** The appellant is the petitioner in W.P.(C) No.37752 of 2007. The brief facts of the case are as follows: 2. The appellant's husband late J. Justus entered service as Conductor in the Kerala State Road Transport Corporation (hereinafter referred to as the 'Corporation') on 19.1.1979. He passed away on 22.1.2002 after prolonged illness. After her husband passed away, the appellant moved the respondents claiming payment of terminal benefits including family pension and also employment assistance under the dying-in-harness scheme for her daughter. By Ext.P3 memo dated 25.6.2003, the District Transport Officer, Aluva informed her that separate requests have to be given for pensionary benefits, medical claim and employment assistance. Accordingly, the appellant filed separate applications claiming the said benefits. The benefits were not granted on the ground that late J.Justus had resigned from service on 18.8.1995 and the resignation was accepted by the Board of Directors of the Corporation on 1.2.2003. The appellant was accordingly informed by W.A.No.458/2009 2 Ext.P4 letter dated 24.4.2006 that late J.Justus is not eligible for any service benefit other than Provident Fund and Staff Welfare Fund. The writ petition was thereupon filed claiming the following reliefs: - “(i) Call for the records leading to this case and issue a writ of certiorari quashing Exhibit P4. - (ii) Declare that the husband of the petitioner is expired while in service and legal heirs are entitled for all service benefits including family pension and appointment under dying in harness scheme. - (iii) issue a writ of mandamus or any appropriate writ or order directing the respondents to sanction and disburse family pension, Provident Fund, Staff Welfare Fund and all other benefits including appointment under dying in harness scheme to the petitioner and her family.” The appellant contended, inter alia, that as her husband passed away on 22.1.2002 long before his resignation was accepted, his legal heirs are entitled to all terminal benefits. 3. The respondents resisted the writ petition contending, inter alia, that late Sri.J.Justus had submitted a letter of resignation dated 18.8.1995, that the said letter was placed before the Managing Director of the Corporation on 23.8.1995, that he thereafter contested the election to the Block Panchayat held on 23.9.1995, that in the resignation letter he had claimed pension and other terminal benefits, that as employees who resign from service are not entitled to any terminal benefits, the Assistant Transport Officer, Aluva as per memo dated 21.11.1995 called W.A.No.458/2009 3 upon Sri.J.Justus to intimate whether he would prefer invalid pension or resignation and that he thereupon submitted an application dated 12.10.1995 opting for invalid pension with effect from 19.9.1995. It was also contended that in O.P. (Ele.) No.111 of 1995 filed in the Court of the District Judge of Thiruvananthapuram, the election of Sri.J.Justus to Peringadavila Block Panchayat was challenged on the ground that he is an employee of the Corporation and therefore ineligible to contest the election, that Sri.J.Justus filed an affidavit in that petition to the effect that he has resigned from the Corporation, that at the time of submission of the nomination he was not an employee of the Corporation and that O.P. (Ele.) No.111 of 1995 was therefore dismissed finding that Sri.J.Justus was not an employee of the Corporation when he filed the nomination. The respondents also contended that after the expiry of his tenure as a member of the Block Panchayat, Sri.J.Justus filed O.P.No.124 of 2001 in this Court seeking a direction to the Corporation to grant him invalid pension, that the said writ petition was disposed of by judgment delivered on 23.3.2001 with a direction to the Corporation to dispose of his representation dated 3.3.2001, that based on the said direction a personal hearing was conducted on 31.10.2001 in which the appellant herein participated for the reason that her husband was laid up, that before orders could be passed on the said representation, Sri.J.Justus passed away on 22.1.2002, that thereafter the files were placed before W.A.No.458/2009 4 the Board of Directors of the Corporation, that the Board of Directors of the Corporation that met on 1.2.2003 resolved to accept the resignation tendered by late J.Justus with effect from 18.8.1995 and that pursuant to the said decision Ext.R1 (b) memo dated 28.2.2003 was issued directing the District Transport Officer, Aluva to ascertain and realise the liabilities, if any, outstanding against late J.Justus. The respondents also contended that Ext.P3 memo dated 25.6.2003 was issued by the District Transport Officer, Aluva ignoring the fact that the legal heirs of an employee who has resigned from service are entitled only to payment of Provident Fund and Staff Welfare Fund and are not entitled to claim pensionary benefits or employment assistance under the dying-in-harness scheme. 4. W.P.(C) No.37752 of 2007 was heard on 5.1.2009. The learned single Judge held that as the appellant's husband had contested the election to the Peringadavila Block Panchayat in the election held on 23.9.1995 and as he could not have validly contested the election without resigning from the service of the Corporation, he and his legal heirs cannot turn round and contend that as his resignation had not been accepted, he continued to be an employee of the Corporation till his death. The learned single Judge also held that the application for invalid pension submitted by late Sri.J.Justus on 12.10.1995 at a time when he was not an employee of the Corporation cannot be acted upon. The writ petition was accordingly dismissed. Aggrieved thereby, the appellant has W.A.No.458/2009 5 filed this writ appeal. 5. We heard Sri.K.P.Rajeev, the learned counsel appearing for the appellant and Sri.V.V.Nandagopal Nambiar, the learned Standing Counsel appearing for the Corporation. We have also gone through the relevant files that were made available to us pursuant to the directions issued by this Court on 24.11.2009. The appellant's husband entered service as Conductor in the Corporation on 19.1.1979. His date of birth is 15.3.1952. He could have continued in service till 31.3.2007. He had admittedly submitted a letter of resignation dated 18.8.1995 which reads as follows: “ ഞ�ന K.S.R.T.C. ആല�വ ഡ�സ����ക�ല കണകറ�യ� ജ��ല� ജ��ക� വര�ന�. ഗ�ര�തരമ�യ� ജര�ഗ� ബ�ധ�ച� ഞ�ന കഴ�ഞ 6 മ�സമ�യ� ജ��ല�ക� ജ%�ക�ന�ല. ഡയബറ�സ��, വ�തവ�� ക�രണ� എ��ക� ത��രന+ ജ��ല� ച-യ���ള കഴ�വ�ല . ആയത���ല ഞ�ന ഇത���ല K.S.R.T.C. സര12സ�ല ��ന� ര��� വച�ര�ക�ന�. എചനറ ര��� സ32കര�ച � എ��ക� ച%ന4� �� മറ�� �ക+ല5ങള�� തരണചമന�അജ%ക�ക�ന�.” ## The English translation thereof is given below: “I am working as Conductor in the K.S.R.T.C. in Aluva District. Owing to serious illness I have not been attending duty for the past 6 months. Due to Diabetes and Rheumatism I am not fit to continue to work. Therefore, I hereby resign from the service of the KSRTC. I request that my resignation may be accepted and pension and other benefits disbursed.” 6. The said letter was received by the Managing Director of the Corporation on 23.8.1995. On receipt of the said letter, the Managing W.A.No.458/2009 6 Director of the Corporation issued a memorandum dated 29.8.1995 directing the District Transport Officer, Aluva to get an application for resignation in the prescribed form from Sri.J.Justus duly attested and counter signed. The memorandum dated 29.8.1995 issued by the Managing Director of the Corporation to the District Transport Officer, Aluva reads as follows: “Sri.J.Justus, Conductor, Aluva has requested to resign from the service of the Corporation vide his representation dated 18.8.1995. District Transport Officer, Aluva is directed to obtain and forward an application for resignation from the Conductor in the prescribed form duly witnessed and countersigned. Liabilities, if any, should also be furnished and directed not to admit him to duty until further orders.” 7. As directed by the Managing Director, the District Transport Officer issued a memorandum dated 31.8.1995 calling upon Sri.J.Justus to submit an application for resignation in the prescribed form, duly attested and counter signed. On receipt of the said letter, the District Transport Officer also directed all section heads to furnish the liability if any outstanding against him. Sri.J.Justus accordingly submitted an application for resignation in the prescribed form. The application for resignation was however not accepted. In the meanwhile, he contested the election to the Peringadavila Block Panchayat held on 27.9.1995 as a candidate from Vellarada constituency and he was elected. His election was challenged by a rival candidate who filed O.P. (Ele.) No.111 of 1995 7 W.A.No.458/2009 in the Court of the District Judge of Thiruvananthapuram. It was contended that Sri.J.Justus is an employee of the Kerala State Road Transport Corporation and therefore his nomination and election are invalid. Sri.J.Justus who was the first respondent in O.P. (Ele.) No.111 of 1995 filed a counter affidavit contending that he had resigned from the Corporation even prior to the date of his nomination, that his resignation was accepted by the competent authority and that on the date of election he was neither an employee nor an officer of the Corporation. By order passed on 22.5.1999, the Court of the District Judge of Thiruvananthapuram dismissed O.P. (Ele.) No.111 of 1995. The learned District Judge held that though the resignation submitted by the employee had not been accepted, as the employee had done everything within his control by submitting a letter of resignation, it cannot be said that he should be deemed to be in service until his service is put an end to by the Corporation by accepting the resignation. The Court of the District Judge also relied on the decision of this Court in **Cochin Port S.C.S. Association** v. **Harrisons and Crossfield Ltd.** (1982 KLT 455) wherein a learned single Judge of this Court had held that in the case of resignation which remains unaccepted, the employee cannot be deemed to be in service for months or years together. 8. While O.P. (Ele.) No.111 of 1995 was pending, pursuant to the direction issued by the head office, the District Transport Officer, Aluva W.A.No.458/2009 8 issued a memo dated 21.11.1995 calling upon Sri.J.Justus to forward a written submission within seven days stating whether he prefers payment of invalid pension or resignation. The memo dated 21.11.1995 reads as follows: “As per directions from Chief Office you are hereby directed to forward a written submission to this office as to whether you prefer invalid pension or resignation. The submission will be forwarded to this office, within seven days from the receipt of this memo, otherwise the matter will be reported to Chief Office for taking further steps in the matter.” 9. On receipt of the said letter, Sri.J.Justus submitted an application for invalid pension in the prescribed form accompanied by a medical certificate dated 25.9.1995 in the form prescribed in rule 43 of Part III, Kerala Service Rules. Since the medical certificate did not relate back to the period from 18.8.1995, the District Transport Officer issued a memorandum dated 2.1.1996 to Sri.J.Justus calling upon him to produce a medical certificate with effect from 18.8.1995 or to apply for invalid pension with effect from 25.9.1995 so as to enable him to forward the application to the Chief Office. The memorandum dated 2.1.1996 reads as follows: “You have applied for invalid pension with effect from 18.9.95 as per your application dated 12.10.95. The Medical Certificate produced is dated 25.9.1995. Since invalid pension can be sanctioned only with effect from the date of Medical Certificate produced, you are hereby instructed to produce Medical Certificate with effect from 18.9.1995 or to apply for 9 W.A.No.458/2009 invalid pension with effect from 25.9.1995 so as to forward the same to Chief Office.” Sri.J.Justus thereupon submitted a fresh application for invalid pension with effect from 25.9.1995. However, no action was taken on that application. 10. A few months later, the Managing Director of the Corporation issued charge sheet No.VLD-021454/96 dated 30.5.1996 to Sri.J.Justus alleging that in violation of the rules, he had contested the elections to the local body while he was still an employee of the Corporation. Sri.J.Justus submitted a reply wherein he inter alia stated that as he has submitted a letter of resignation dated 18.8.1995, he is not liable to be charge sheeted. However, no further action was taken pursuant to the memo of charges dated 30.5.1996. Sri.J.Justus was a chronic diabetic. He was also suffering from hypertension and was under long treatment for the said ailments. When his illness aggravated, he was admitted as an inpatient on 2.6.1999 in Medical College Hospital, Thiruvananthapuram where he continued as an inpatient till 9.6.2000. Meanwhile, he also developed renal failure and was treated at Christian Medical College and Hospital, Vellore. He had to incur very heavy expenditure in connection with his treatment. When his representations to the authorities claiming invalid pension did not evoke any response, he filed a detailed representation on 3.3.2001 before the Managing Director of the W.A.No.458/2009 10 Corporation claiming invalid pension. He thereafter filed O.P.No.124 of 2001 in this Court seeking the following reliefs: - “(i) Issue a writ of mandamus directing the respondent to sanction and disburse Invalid Pension to the petitioner with 18% interest from 23.8.1995, forthwith. - (ii) Issue such other writ, direction or order which this Hon'ble Court deems fit and proper in the circumstances of the case, including the costs from the respondent.” 11. O.P.No.124 of 2001 was heard and disposed of by judgment delivered on 23.3.2001 with a direction to the Corporation to consider the request made by Sri.J.Justus in the representation dated 3.3.2001 a copy of which was produced and marked as Ext.P14 therein. The Corporation was directed to pass appropriate orders within two months from the date of receipt of a copy of the judgment after hearing the appellant as Sri.J.Justus was hospitalised because of his illness. Sri.J.Justus forwarded a copy of the judgment of this Court in O.P.No.124 of 2001 to the Managing Director of the Corporation along with his letter dated 26.7.2001 wherein he sought expeditious orders on his application for invalid pension. As directed by this Court in O.P.No.124 of 2001, a hearing was conducted on 31.10.2001 by the Executive Director of the Corporation. The appellant participated in the hearing. However, before Sri.J.Justus passed away on 22.1.2002 orders were not passed in the matter. The application submitted by Sri.J.Justus for invalid pension was W.A.No.458/2009 11 thereafter placed before the Board of Directors of the Corporation. The Board of Directors of the Corporation that met on 1.2.2003 resolved, as can be seen from Ext.R1 (a), to accept the letter of resignation with effect from 18.8.1995. In arriving at the said decision, the Board of Directors of the Corporation relied on the averment in the written statement filed by late J.Justus in O.P. (Ele.) No.111 of 1995 which is extracted in paragraph 3 of Ext.R1 (c) order passed by the Court of the District Judge of Thiruvananthapuram in that case. Ext.R1 (b) memorandum dated 28.2.2003 was thereupon issued, directing the District Transport Officer, Aluva to ascertain the liabilities if any outstanding against late J.Justus. It was also ordered that the name of J.Justus is removed from the rolls of the Corporation with effect from 18.8.1995. ## 12. In **Cochin Port S.C.S. Association** v. **Harrisons and** **Crossfield Ltd.** (1982 KLT 455), M.P.Menon, J. after holding that the letter of resignation tendered by the employee of a private limited company did not put an end to his service without anything more, proceeded to hold that in the case of a resignation which remains unaccepted the employee cannot be deemed to be in service for months or years together and that after the lapse of a reasonable period of notice, the contract would be deemed to have come to an end, whether the resignation is accepted or not. In **Raj Kumar** v. **Union of India** (AIR W.A.No.458/2009 12 1969 SC 180) the Apex Court considered the question whether a letter of resignation can be withdrawn after its acceptance by the Government but before communication of the order of the acceptance. In that case, the appellant before the Apex Court who was a member of the Indian Administrative Service, working as Collector of Kota District in Rajasthan submitted a letter of resignation dated 30.8.1964 to the Chief Secretary to Government of Rajasthan with a request to forward it to the Government of India together with the remarks of the State Government. The State Government recommended that the letter of resignation may be accepted. The Government of India accepted the resignation on 31.10.1964 and requested the Chief Secretary to Government of Rajasthan to intimate the date on which the appellant was relieved of his duties so that a formal notification could be issued in that behalf. The appellant thereafter changed his mind and requested the Chief Secretary to Government of Rajasthan to recommend acceptance of the withdrawal of his resignation from the Indian Administrative Service. He also addressed a letter to the Government of India separately to the effect that he was withdrawing his resignation from the Indian Administrative Service. The letter withdrawing the resignation was ignored and he was directed to hand over charge to the Additional Collector, Kota. The appellant challenged the said order by filing a writ petition in the High Court of Punjab. The writ petition was dismissed by a Division Bench of W.A.No.458/2009 13 the Punjab High Court (See **Raj Kumar Ishwar Dass** v. **Union of India and another** (AIR 1966 Punjab 221). An appeal was thereupon filed in the Apex Court. Before the Apex Court, relying on the decision in **State of Punjab** v. **Amar Singh Harika** (AIR 1968 SC 1313) the appellant contended that as the order accepting the resignation has not been communicated or otherwise published, it was open to him to withdraw the letter of resignation. Overruling the said contention, the Apex Court in **Raj Kumar's case** (supra) held as follows: “Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus paenitentiae but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted. In the present case the resignation was accepted within a short time after it was received by the Government of India. Apparently the State of Rajasthan did not, immediately implement the order, and relieve the appellant of his duties, but the appellant cannot profit by the delay in intimating acceptance or in relieving him of his duties.” (emphasis supplied) W.A.No.458/2009 14 ## In **Central Inland Water Transport Corporation** v. **Brojo Nath** (AIR 1986 S.C. 157) the Apex Court held that resignation comes into operation only when the employer accepts the same and that the employer can refuse to accept the letter of resignation on the ground that disciplinary action is pending or that certain urgent works require to be completed. The Apex Court held as follows: “................... A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer would be justified in refusing to accept the employee's resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or important and for the completion of which his presence and participation are necessary. An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry.” In the light of the authoritative pronouncements of the Apex Court, we have to necessarily hold that the opinion of M.P.Menon, J. in **Cochin Port S.C.S. Association's** case (supra) that in the case of a resignation which remains unaccepted, the employee cannot be deemed to be in service for months or years together after the lapse of a reasonable period of notice, cannot be applied in the case of employees in public service or of Government owned undertakings like the Corporation, who are governed by statutory rules like the Kerala Service Rules, the Kerala 15 W.A.No.458/2009 State and Subordinate Services Rules, 1958 and the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 etc.. 13. In **P.Lal** v. **Union of India** ((2003) 3 SCC 393), the Apex Court held that after an application for voluntary retirement is accepted and the retirement becomes effective, the relationship of master and servant stands severed and thereafter, a request for withdrawal of the request for voluntary retirement cannot be accepted. In **Chand Mal Chayal** v. **State of Rajasthan** ((2006) 10 SCC 258) the Apex Court held that though it is a well settled principle of law that the employee is entitled to withdraw his resignation before its acceptance, once the resignation is accepted, the employee cannot seek for withdrawal of the resignation or reinstatement in the post. The aforesaid decisions proceed on the principle that once the letter of resignation or an application for voluntary retirement is accepted by the employer, the employeremployee relationship or mater-servant relationship comes to an end and the employee cannot thereafter withdraw the letter of resignation or application for voluntary retirement. 14. It is now settled law that resignation is a bilateral concept and that, generally, in the absence of an express provision to the contrary, an offer of resignation becomes effective only when it is accepted by the competent authority. It is also settled law that in the absence of any stipulation to the contrary, the employee can withdraw the resignation W.A.No.458/2009 16 before it is accepted. No provision of the Regulations governing service conditions of employees of the Corporation was brought to our notice which stipulates that resignation takes effect when the letter of resignation is submitted and that it is not necessary for the competent authority to accept the same. The letter of resignation submitted by Sri.J.Justus is dated 18.8.1995. We have already extracted the contents of the said letter. In that letter, after tendering resignation Sri.J.Justus had also sought payment of pension and other benefits. The said letter was placed before the Managing Director of the Corporation on 23.8.1995. He, in turn, directed his subordinate to get an application for resignation in the prescribed form, duly witnessed and counter signed. Pursuant to that direction, the District Transport Officer, Aluva issued a memorandum dated 31.8.1995 calling upon Sri.J.Justus to submit an application for resignation in the prescribed form. Such an application in the prescribed form was also submitted. Thereafter, pursuant to the directions issued from the head office, Sri.J.Justus was called upon to state whether he would prefer to resign or retire on invalid pension. Thereupon, the District Transport Officer, Aluva issued a memorandum dated 21.11.1995 the contents of which also we have extracted above. Sri.J.Justus thereafter submitted an application dated 12.10.1995 seeking invalid pension with effect from 18.8.1995. Since the medical certificate in the form prescribed in Rule 43 of Part III, Kerala Service Rules did not W.A.No.458/2009 17 relate to the date 18.9.1995, he was called upon by memorandum dated 2.1.1996 to submit a fresh medical certificate from 18.9.1995 or to apply for invalid pension afresh. The employee thereafter submitted a fresh application for invalid pension. In our opinion, with the submission of the application for invalid pension pursuant to the direction of the head office of the Corporation, the letter of resignation dated 18.8.1995 submitted by Sri.J.Justus stood withdrawn. If the competent authority had accepted the resignation tendered by Sri.J.Justus on 23.8.1995 or immediately thereafter, there would have been no occasion for the employer to call upon the employee to make a choice between resignation and retirement on invalid pension or for the employee concerned to submit an application for invalid pension. 15. The files disclose that Sri.J.Justus was a chronic diabetic and was also suffering from hypertension. Evidently, that was the reason why those at the helm of affairs of the Corporation gave him an opportunity to retire on invalid pension. He had admittedly submitted an application for invalid pension pursuant to the memo dated 21.11.1995. Therefore, with the submission of that application for invalid pension, Sri.J.Justus had made it known that he wants to retire on invalid pension instead of resigning from service. He had made an informed choice to retire from service on invalid pension and an application for invalid pension was also submitted by him. The _**“Locus Poenitentiae”**_ or opportunity to W.A.No.458/2009 18 withdraw from the contemplated course of action namely resignation was then available to him for the reason that his letter of resignation had not been accepted. In such circumstances, we have no hesitation to hold that Sri.J.Justus had withdrawn the letter of resignation submitted by him and had instead opted to retire from service on invalid pension. 16. Under rule 29 of Part III, Kerala Service Rules which governs employees of the Corporation, resignation entails forfeiture of past service. Rule 33 of the Kerala State and Subordinate Services Rules, 1958 also stipulates that a member of a service shall, if he resigns his appointment, forfeit not only the service rendered by him in the particular post held by him at the time of resignation but all his previous service under the Government. It is also stipulated that the re-appointment of such a person to any service shall be treated in the same way as a first appointment to such service by direct recruitment and all rules governing such appointment shall apply; and on such re-appointment he shall not be entitled to count any portion of his previous service for any benefit or concession admissible under any rule or order. Resignation thus entails forfeiture of past service, meaning thereby that any benefit linked with and relatable to the past service rendered by the employee is automatically denied. Sri.J.Justus entered service on 19.1.1979. He had the minimum qualifying service for pension as on 18.8.1995. In view of his illness, he was also entitled to retire on invalid pension. The facts and W.A.No.458/2009 19 circumstances referred to above establish beyond doubt that the intention of late J.Justus was not to resign from the service of the Corporation but to retire from service due to his illness. The employee was a Conductor of the Corporation. Even in the letter of resignation he had stated that he is suffering from Diabetes and Rheumatism and that he has not been attending to his duties for the past six months. He had also claimed payment of pension and other terminal benefits. Thus, on an analysis of the facts and circumstances detailed above, we are persuaded to hold that the letter of resignation submitted by the employee stood withdrawn when he applied for invalid pension pursuant to the option given to him by the head office either to resign from service or to retire on invalid pension. 17. In the instant case, during the life time of Sri.J.Justus the letter of resignation submitted by him was not acted upon. As permitted by the employer he had opted to retire on invalid pension instead of resigning from service. He passed away on 22.1.2002 while his application for invalid pension was pending with the Corporation. On his death on 22.1.2002, the master servant relationship came to an end. In other words, with the death of Sri.J.Justus the _**“Vinculum Juris”**_ stood dissolved. The employer could not have thereafter acted on the letter of resignation submitted by the employee. Further, as held by us earlier when the employee opted to retire on invalid pension based on the W.A.No.458/2009 20 opportunity extended to him in that regard by the employer, the letter of resignation stood withdrawn. For that reason also we are of the opinion that the decision taken by the Board of Directors of the Corporation to accept the letter of resignation cannot be sustained. 18. It is no doubt true that Sri.J.Justus had contended before the Court of the District Judge of Thiruvananthapuram in O.P.(Ele.) No.111 of 1995 that he has resigned from service. The Court of the District Judge had called for the relevant files from the Corporation. After going through the contents of the letter of resignation and the files, taking note of the fact that Sri.J.Justus had not worked after submitting the letter of resignation, the Court of the District Judge held that as the employee had done everything within his control by submitting a letter of resignation and had not performed duties as an employee of the Corporation, the petitioner in the election petition cannot contend that the employee should be deemed to be in service until his service is put an end to by the Corporation by accepting his resignation in due course of time. The said finding cannot, in our opinion, be taken to be a finding that the letter of resignation submitted by Sri.J.Justus was accepted by the competent authority. On the other hand, the materials available in the files conclusively establish the fact that the letter of resignation was not accepted till 1.2.2003 when the Board of Directors of the Corporation decided to accept the resignation and that too after the employee who W.A.No.458/2009 21 tendered the resignation passed away. 19. We also notice that Sri.J.Justus had filed O.P.No.124 of 2001 in this Court seeking payment of invalid pension with effect from 23.8.1995. The said writ petition was filed on 1.1.2001 and it was disposed of after notice to the Corporation by judgment delivered on 23.3.2001. This Court directed the Corporation to consider the request made by Sri.J.Justus to retire from service on invalid pension in his representation dated 3.3.2001 which was produced and marked as Ext.P14 in O.P.No.124 of 2001. Pursuant to the said direction, a hearing was also conducted on 30.10.2001 in which the appellant participated as directed by the Managing Director of the Corporation in his memorandum dated 22.10.2001. However, orders were not passed on the representation dated 3.3.2001 submitted by Sri.J.Justus. Sri.J.Justus died thereafter on 22.1.2002. It was more than one year thereafter that the Board of Directors decided to accept the resignation tendered by him more than seven years back on the premise that the Court of the District Judge has held that he had resigned from the service of the Corporation. In coming to the said decision, reliance was placed on the stand taken by the employee before the court below that he is no longer an employee of the Corporation. As noticed earlier, the Court of the District Judge did not consider the question whether the letter of resignation stood withdrawn when the employee opted to retire on invalid pension pursuant to the W.A.No.458/2009 22 offer extended to him by the competent authority either to opt for resignation or to retire on invalid pension. Further, the Court of the District Judge had only held that as the employee had done everything within his control, the petitioner in the election petition cannot be heard to contend that he continues to be an employee of the Corporation till his resignation is accepted by the competent authority. The Court of the District Judge has not in Ext.R1 (c) judgment entered a finding that the resignation submitted by Sri.J.Justus was accepted. 20. The respondents have no case that late J.Justus was not entitled to retire on invalid pension. They have not pleaded or proved that his application for invalid pension was rejected on the merits. Necessarily therefore we have to hold in the light of our finding that the letter of resignation submitted by late J.Justus stood withdrawn when he applied to retire from service on invalid pension, that he was entitled to retire on invalid pension with effect from 25.9.1995. He passed away only on 22.1.2002. He was therefore entitled for payment of invalid pension at the applicable rates during the period from 25.9.1995 to 21.1.2002. The appellant who is the wife of late J.Justus became entitled to receive family pension with effect from 22.1.2002. Her claim for family pension was rejected by Ext.P4 on the short ground that her husband's resignation from service has been accepted. In view of our finding that the letter of resignation stood withdrawn when Sri. J.Justus applied for retirement of W.A.No.458/2009 23 invalid pension, that ground cannot any longer be held out against the appellant. We accordingly hold that the appellant is entitled to family pension at the applicable rates with effect from 22.1.2002. For the reasons stated above, we allow the writ appeal, reverse the judgment of the learned Single Judge, quash Ext.P4 and direct the respondents to sanction and disburse invalid pension and all other terminal benefits due to Sri.J.Justus for the service rendered by him during the period from 19.1.1979 till 25.9.1995. The respondents shall also pass necessary orders sanctioning payment of family pension to the appellant. Necessary steps in that regard shall be taken and arrears of invalid pension payable to late J.Justus for the period from 25.9.1995 till 21.1.2002 and arrears of family pension due to the appellant disbursed to her expeditiously and in any event within four months from the date on which the appellant produces a certified copy of this judgment before the Managing Director of the Corporation. ## **K.BALAKRISHNAN NAIR Judge** ## **P.N.RAVINDRAN Judge** vaa