Rajesh Thomas v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 24TH DAY OF MAY 2019 / 3RD JYAISHTA, 1941** ## **WP(C).No. 2111 of 2019** ## **PETITIONERS:** **RAJESH THOMAS, AGED 44 YEARS, S/O K.C.THOMAS, MANGALAPALLY HOUSE, VADAVATHOOR P.O., KOTTAYAM-10.** **BY ADVS. SRI.K.S.MADHUSOODANAN SMT.C.C.BINDHYA SMT.S.JESSIN SRI.K.S.MIZVER SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR** ## **RESPONDENTS:** **1 KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT P.O., THIRUVANANTHAPURAM-695 023, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.** **2 EXECUTIVE DIRECTOR (ADMINISTRATION), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT P.O. THIRUVANANTHAPURAM PIN 695 023.** **BY ADV. SHRI.T.P SAJAN, SC, KERALA STATE ROAD TRANSPORT CORPORATION - KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 ``` WP(C) 2111 OF 2019 ``` ## **JUDGMENT** The petitioner, while working as Inspector in Kottayam Depot of the Kerala State Road Transport Corporation, the 1[st] respondent herein, submitted Ext.P2 application dated 29.12.2017 for voluntary retirement, on the strength of Ext.P1 medical certificate dated 28.08.2017, as per which he was suffering from 'Kadegraham' (back pain due to disc complaint). At the time of submission of Ext.P2 application, he was continuing on medical leave from 14.08.2017, which was extended from time to time, till 08.03.2018. According to the petitioner, on Ayurvedic treatment, he recouped health. In Ext.P3 fitness certificate dated 07.03.2018, the Doctor has certified that the petitioner has recovered from his illness and he is fit to resume duties. The petitioner submitted Ext.P4 application dated 06.03.2018 before the 2[nd] respondent, who is the Executive Director (Administration) of the 1[st] respondent Corporation, to withdraw Ext.P2 application for voluntary retirement and to resume duty. Ext.P4 application was followed by Ext.P5 application dated 04.04.2018. 3 ``` WP(C) 2111 OF 2019 ``` 2. The petitioner approached this Court in W.P.(C) No.20835 of 2018, seeking a writ of mandamus commanding the 2[nd] respondent to consider Exts.P4 and P5 applications, in the light of Ext.P3 fitness certificate and drop all further proceedings in Ext.P1 application for voluntary retirement, by permitting him to rejoin duty immediately. The said writ petition was disposed of by Ext.P6 judgment dated 03.07.2018, by directing the 2[nd] respondent to consider and pass appropriate orders on Exts.P4 and P5 applications, strictly in accordance with law, with notice to the petitioner and after affording him an opportunity of being heard, within a period of six weeks from the date of receipt of a certified copy of that judgment. 3. Pursuant to the directions contained in Ext.P6 judgment, the 2[nd] respondent conducted a personal hearing on 14.08.2018 and issued Ext.P7 order dated 04.01.2019, whereby the petitioner is sanctioned voluntary retirement based on Ext.P2 application, as a special case, and the officers concerned are directed to do the needful to process that application and disburse all the benefits due to him as if he has been sanctioned 4 ``` WP(C) 2111 OF 2019 ``` voluntary retirement after completion of 20 years of qualifying service. In Ext.P7 order, the 2[nd] respondent found that the petitioner has only 19 years, 8 months and 14 days qualifying service, as against 20 years qualifying service required for voluntary retirement. Feeling aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 order dated 04.01.2019 of the 2[nd] respondent; a declaration declaring that the withdrawal of VRS of the petitioner being effective, he is continuing in service and entitled for all consequential benefits; and a writ of mandamus commanding the respondents to reinstate him in service with all consequential benefits. 4. On 08.02.2019, when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel for KSRTC took notice for respondents 1 and 2 and sought time to file counter affidavit. 5. A counter affidavit has been filed by respondents 1 and 2, opposing the reliefs sought for in this writ petition. Paragraphs 4 and 5 of the said counter affidavit read thus; 5 ``` WP(C) 2111 OF 2019 ``` “4. It is submitted that pursuant to the above direction, the case of the petitioner was considered in detail. In Ext.P2 application, the petitioner had submitted that he has unable to perform duties due to physical disability on account of corrosion of his disk. Since it will be difficult for a person having back pain due to corrosion of disk to perform the duty of the conductor in a bus, the case of the petitioner was considered sympathetically and his application for voluntary retirement was allowed irrespective of the fact that he had completed only 19 years 8 months and 14 days for qualifying service. Pursuant to that necessary directions were given to the concerned officers to process his application for VRS and disburse all benefits due to him as if he has completed 20 years qualifying service. 5. It is submitted that from the experience of the Corporation with persons like petitioner, if voluntary retirement is not granted on their application, they will apply for light duty posting or category change. As far as the Corporation is concerned, the bus staff strength ratio is very much high and it is one of the reasons for the increase in the operations expenses of the Corporation. The Corporation do not have so much lihgt duty post for accommodating all those persons who are having physical disability for performing the duties attached to their post. So, if employees who express his willingness on the basis of physical disability to perform the duties attached to his post, to voluntarily retire from the service of the Corporation, the same will be accepted by the Corporation due to the above 6 ``` WP(C) 2111 OF 2019 ``` mentioned reasons. It was on the above reason that the Corporation accepted the application of the petitioner for voluntary retirement on the ground that he was physically unable to perform the duties attached to this post. Ext.7 order is issued in the best interest of the Corporation and there is no illegality or irregularity in issuing Ext.P7.” 6. Heard the learned counsel for the petitioner and also the learned Standing Counsel for KSRTC, representing the respondents. 7. The sole issue that arises for consideration in this writ petition is as to whether Ext.P7 order dated 04.01.2019 of the 2[nd] respondent, whereby sanction has been accorded for voluntary retirement of the petitioner with effect from 29.12.2018, as a special case, despite submission of Ext.P4 application dated 06.03.2018 and Ext.P5 application dated 04.04.2018 to withdraw Ext.P2 application for voluntary retirement, is legally sustainable. 8. It is well settled by the judgment of the Apex Court in **J.N.Srivastava v. Union of India [(1998) 9 SCC 559]** that an employee has _locus standi_ to withdraw the application for voluntary retirement before he is actually relieved from service. 9. In **Captain Gurdarshan Kaur Sandhu v. Air India** 7 ``` WP(C) 2111 OF 2019 ``` **Express Ltd. and other [2018 (3) KHC 916]** , this Court held that the request made by an employee for withdrawal of an application for voluntary retirement is liable to be accepted if the same is given well before his relationship with the employer severed. This Court held further that resignation becomes complete and effective only when one severs the link with his office and terminates its tenure. Paragraphs 18 to 20 of the said judgment read thus; “18. As rightly pointed out by the learned counsel for the petitioner, in the light of the judgment of the Apex Court in Srikantha S.M. v. Bharath Earth Movers Ltd., 2005 KHC 1886:2005(8) SCC 314:2005 SCC (L&S) 1119:2005 (3) CLR 806, Rajasekharan Nair S. v. State of Kerala and Others, 2009 (4) KHC 567:2009 (4) KLT 611:ILR 2009(4) Ker.775, J.N.Srivastava v. Union of India and Another, 1998 KHC 1311:1998 (9) SCC 559:1998 SCC (L&S) 1251:AIR 1999 SC 1571, Shambhu Murari Sinha v. Project and Development India Ltd., and Another, 2002 KHC 1831:2002 (3) SCC 437:2002 SCC (L&S) 444:AIR 2002 SC 1341:2002 (3) SLR 359:2002 (2) LLJ 430, etc the resignation/voluntary retirement can be withdrawn by the employees before he is actually released from service. 19. The judgment of the Apex Court in Srikantha's case (supra) is rendered in more or less similar circumstances, 8 ``` WP(C) 2111 OF 2019 ``` where the question of withdrawal of resignation was considered by the Apex Court. Reiterating the propositions laid down in the judgments in Union of India v. Gopal Chandra Misra, 1978 KHC 517: AIR 1978 SC 694:1978 (2) SCC 301 : 1978 SCC (L&S) 303: 1978 (1) LLJ 492 : 1978 Lab IC 660, Balram Gupta v. Union of India, 1987 KHC 757 : 1987 Supp SCC 228 : 1988 SCC (L&S) 126 : AIR 1987 SC 2354 : 1987 (2) LLJ 541 : 1987 (2) LLN 906, J. N. Srivastava v. Union of iNida, 1998 KHC 1311 : 1998 (9) SCC 559 :198 SCC (L&S) 1251 : AIR 1999 SC 1571, Shambhu Murari Sinha v. Project and Development Inida, 2000 KHC 1214 : 2000 (5) SCC 621 : AIR 2000 SC 2473 : 2000 SCC (L&S) 741 : 2000 (4) SLR 577 : 2000 (3) LLN 513 : 2000 Lab IC 2610 and Punjab National Bank v. P.K. Mittal, 1989 KHC 760 : (1989) Supp 2 SCC 175 : 1990 SCC (L&S) 143 : AIR 1989 SC 1083 : 1989 (1) SCR 612 : 1989 (2) SLJ 1 etc, it was held as follows: “26. On the basis of the above decisions, in our opinion, the learned counsel for the appellant is right in contending that though the respondent Company had accepted the resignation of the appellant on 04.01.1993 and was ordered to be relieved on that day, by a subsequent letter, he was granted casual leave from 05.01.1993 to 13.01.1993. Moreover, he was informed that he would be relieved after office hours on 15.01.1993. The vinculum juris, therefore, in our considered opinion, continued and the relationship of employer and employee did not come 9 ``` WP(C) 2111 OF 2019 ``` to an end on 04.01.1993. the relieving order and payment of salary also make it abundantly clear that he was continued in service of the Company up to 15.01.1993” 20. In the case resignation letter was tendered on 04.01.1993 requesting to relieve him as per Company rules and it was initially accepted on the same day. Though he was informed that he would be relieved with immediate effect, he was later informed that he would be relieved on 15.01.1993. In the meanwhile the letter of resignation with withdrawn as per letter dated 08.01.1993. But on 15.01.1993 appellant was informed that he would be relieved on that day giving notice pay. The Apex Court held that the withdrawal letter was liable to be accepted as the same was given well before his relationship with the employer severed. The Apex Court reiterated the law laid down in Gopal Chandra Misra's case (supra) and in Balram Gupta's case (supra) that resignation becomes complete and effective only when one servers the link with his office and terminates its tenure.” 10. Viewed in the light of the law laid down in the decisions referred to supra, when the petitioner has made Ext.P4 application on 06.03.2018 to withdraw Ext.P2 application for voluntary retirement, the 2[nd] respondent was not at all justified in according sanction for voluntary retirement of the petitioner, with effect from 29.12.2017, by Ext.P7 order dated 04.01.2019. In 10 ``` WP(C) 2111 OF 2019 ``` such circumstances, Ext.P7 order is legally unsustainable and the petitioner is entitled for reinstatement in service with all consequential monetary benefits. 11. In the result, this writ petition is disposed of by setting aside Ext.P7 order dated 04.01.2019 of the 2[nd] respondent and by declaring that the petitioner is entitled for reinstatement in service, with effect from 29.12.2017, with all consequential monetary benefits. The competent among the respondents shall pass necessary orders in this regard, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment and the petitioner shall be permitted to rejoin duty. The consequential monetary benefits payable to the petitioner shall be sanctioned and disbursed within a further period of one month. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 11 ``` WP(C) 2111 OF 2019 ``` ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 28.8.17 ISSUED FROM DIST. AYURVEDA HOSPITAL, KOTTAYAM.** **EXHIBIT P2 PHOTOCOPY OF THE APPLICATION IN THE PRESCRIBED FORM WITH FORWARDING LETTER AND SUBMISSION DATED 29.12.17.** **EXHIBIT P3 PHOTOCOPY OF THE FITNESS CERTIFICATE DATED 7.3.18.** **EXHIBIT P4 PHOTOCOPY OF THE APPLICATION DATED 6.3.18 TO THE 2ND RESPONDENT.** **EXHIBIT P5 PHOTOCOPY OF THE APPLICATION DATED 4.4.18.** **EXHIBIT P6 PHOTOCOPY OF THE JUDGMENT IN W.P. (C)NO.20835/18 DATED 3.7.2018.** **EXHIBIT P7 PHOTOCOPY OF THE ORDER BEARING NO.PL.10/000735/18 DATED 4.1.2019 OF THE 1ST RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL** **TRUE COPY** **P.A. TO JUDGE**