Decided on June 08,2012



BARIN GHOSH, C.J. - (1.) ON 30th June, 2003, respondent employer propounded a Voluntary Separation Scheme. The said scheme was not available to an employee against whom disciplinary proceedings for major penalty are in progress and / or are contemplated, and / or employees facing charges from external agencies. An employee interested to take the advantage of the said scheme was required to respond on or before 30th of September, 2003.
(2.) PETITIONER, an employee of the respondent employer, was posted at the establishment of the respondent employer situate at Dehradun prior to 17th January, 2003. By an order passed by the competent authority, petitioner was transferred from the establishment of the respondent employer situate at Dehradun to the establishment of the respondent employer situate at Assam. In order to give effect to the said transfer, petitioner was relived from the establishment of the respondent employer situate at Dehradun on 17th January, 2003. Petitioner did not join his transferred post at the establishment of the respondent employer situate at Assam. Petitioner applied under the said scheme to take advantage of the benefits thereunder on 31st July, 2003. On 9th December, 2003, the said application of petitioner was rejected in view of pending major penalty against the petitioner. Challenging the stand, thus, taken in the letter dated 9th December, 2003, petitioner approached this Court by filing a writ petition registered as Writ Petition (SB) No. 2 of 2004. In the writ petition, the principal contention was that as on 9th December, 2003, no major penalty proceeding was pending against the petitioner. The writ petition was kept pending until 29th October, 2010. On 29th October, 2010 when the said writ petition was considered, Court was informed that the disciplinary proceeding has been concluded. The Court, accordingly, directed the application for voluntary retirement to be considered. Accordingly, the application for voluntary retirement was considered and thereupon by a letter dated 18th April, 2011, petitioner was informed that the voluntary scheme under which the application was made by the petitioner, was limited for a specified period and that having expired, the application of the petitioner can not be considered. This order dated 18th April, 2011 was sought to be challenged in the said writ petition, but this Court felt, as recorded in its order dated 25th May, 2011, that the impugned action, as depicted in the letter dated 18th April, 2011, can be challenged by filing a fresh writ petition. Accordingly, the present writ petition has been filed. In the writ petition, it has been contended that in view of the order of this Court dated 29th October, 2010, on the principle of relating back, the application for voluntary retirement should have had been decided proceeding on the basis that the same was made on time but was not considered at the time when it should have had been considered. We feel that this submission / contention may not be appropriate in the present case, inasmuch as, as aforesaid, the said scheme was not available to an employee against whom a disciplinary proceeding for awarding a major penalty was pending or contemplated. It was contended that when the respondent employer disclosed disinclination to consider the application of the petitioner for voluntary retirement on 9th December, 2003, there was neither any disciplinary proceeding for awarding major penalty pending or contemplated, but the fact remains that such contention was not gone in by the Court when the writ petition was considered and, accordingly, petitioner permitted his contention that on 9th December, 2003, neither any disciplinary proceeding was pending or contemplated to be rejected, inasmuch as, in law, it must be deemed that when a plea has been taken but the same has not been dealt with, it is deemed that the plea, thus taken, has been rejected. The Court by its order dated 29th October, 2010, though, directed the VRS application to be considered under the Scheme, but the fact remains that as on the date the Court passed the order, the scheme had come to an end. The Court by its order dated 29th October, 2010 did not keep the scheme alive for the purpose of consideration of the application of the petitioner. In the circumstances, application of the petitioner could not be considered under the scheme. That being the situation, petitioner has made an alterative prayer. Petitioner has, accordingly, prayed for payment of salary and other service benefits along with due promotions and arrears, time scale, TA/DA, salary for the inquiry period, LTC, medical benefits of the petitioner with effect from 2003 and all other consequential benefits. It appears to be the contention of the petitioner that his unauthroised absence has been exonerated in the disciplinary proceeding and, accordingly, petitioner is entitled to all the benefits of service. It has been submitted that after the disciplinary proceeding was concluded, competent authority has also sanctioned leave to the petitioner. It was submitted that in such circumstances, petitioner is entitled to a direction for release of his salaries and other consequential payments.
(3.) IN the charge-sheet, which resulted in initiation of the disciplinary proceeding against the petitioner, the 3rd charge was unauthorized absence of the petitioner for the period commencing from 17th January, 2003. Inquiry Officer found that the relieving order was received by the petitioner on 20th January, 2003 and before that and even subsequent thereto, petitioner applied for grant of leave. Those applications were received but not dealt with. Inquiry Officer, accordingly, opined that in such circumstances, without rejecting the applications for leave, it could not be contended that the absence was unauthorized. This finding has been accepted by the disciplinary authority. Therefore, the disciplinary authority or employer has accepted that since the applications for leave made by the petitioner were not rejected, it could not be contended that the petitioner was absent unauthorisedly. In the circumstances, it cannot be pronounced by us that the employer by any of its conduct has accepted the fact that the petitioner served the employer. The action on the part of the employer suggesting grant of leave upto August, 2005 only suggests that as entitled to the petitioner has been accorded leave upto August, 2005. There is nothing else on record, from where it would be evidenced that the employer has accepted service by the petitioner of his employment entitling the petitioner to remuneration and other benefits of service. In those circumstances, we are not in a position to issue any direction upon the employer to release either salary or any other benefits of service to the petitioner. We, however, make it clear that it shall be open to the petitioner, after joining his service with the employer, to demand for whatever he is otherwise entitled to and thereupon to take such step, as he may be advised. With the observations as above, the writ petition is disposed of.;

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