Allowed

Jitendranath Nayer v. the Oriental Insurance Co. Ltd. and Anr.

Bombay HC21 Jun 2007WP/303/2007

Case brief

AI extract

What is this about?

The High Court quashed the penalty of removal from service imposed by the petitioner's employer. Holding that the employer failed to communicate refusal within the mandatory 90-day notice period for voluntary retirement under the General Insurance (Employees) Pension Scheme, 1995, the court ruled the subsequent proceedings for abandonment of service were vitiated.

What did the court decide?

Proceedings commenced pursuant to the communication dated 1st October, 2001, including the charge sheet, enquiry, and subsequent punishment, were quashed and set aside.

Jitendranath Nayer Vs the Oriental Insurance Co. Ltd… — Service and Employment | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 (1) Writ Petition No.303 of 2007

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 Jitendranath Nayer )
 adult, Indian Inhabitant of )
 Mumbai, residing at B/602, )
 Great Eastern Garden, L.B.S. )
 Marg, Kanjur Marg (West), )
 Mumbai 400 078 ) ..Petitioner
 vs.

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 1. The Oriental Insurance Co. )
 Ltd., having its Registered )
 Office at Oriental House, )
 A-25/27, Asif Ali Road )
 New Delhi 110 002 and its )
 Mumbai Regional Office No.1 )
 at Oriental House, 2nd floor)
 7,Jamshedji Tata Road, )
 Churchgate, Mumbai 400 020 )
 2. Dilip Dhar )
 General Manager )
 The Oriental Insurance Co. )
 Ltd.,Mumbai Regional Office )
 No.1 at Oriental House, 2nd )
 Floor, 7,Jamshedji Tata Road)
 Churchgate, Mumbai 400 020 ) ..Respondents
 (2) Writ Petition No.44 of 2002
 Jitendranath Nayar )
 C/504, Adarsha Apartments )
 Spring Mills Compound, Naigaon )
 Dadar(East), Mumbai 400 014 ) ..Petitioner
 Vs.
 1. The Oriental Insurance Co. )
 Ltd., having its Registered )
 Office at Oriental House, )

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 A-25/27, Asif Ali Road )
 New Delhi 110 002 and its )

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 Mumbai Regional Office No.1 )
 at Oriental House, 2nd floor)
 7,Jamshedji Tata Road, )
 Churchgate, Mumbai 400 020 )

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 2. M.K.Jindal, )
 Asst.General Manager )
 The Oriental Insurance Co. )
 Ltd.,Mumbai Regional Office )
 No.1 at Oriental House, 2nd )
 Floor, 7,Jamshedji Tata Road)
 Churchgate, Mumbai 400 020 ) ..Respondents

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 Mr.M.B.Singh for petitioner.
 Mr.A.G.Khothari for respondents.

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 Closed for order: 19th April,2007
 Order Pronounced on: 21st June,2007

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CORAM: SWATANTER KUMAR C.J.
& S.C.DHARMADHIKARI J.
 21st June, 2007

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J U D G M E N T: (Per S.C.Dharmadhikari J.)

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 1. Rule in Writ Petition No.303 of 2007. Respondents
 waive service. By consent, rule made returnable
 forthwith. Both sides agree that any order passed in this
 petition would cover writ petition no.44 of 2002. That
 petition is also placed on board for hearing by consent of

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‘ parties.

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 2. The first petition under Article 226 of the
 Constitution of India is directed against an order dated
 18th August, 2006, a copy of which is annexed as annexure

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 "I" (page 99) to the petition. By this order the
 respondents imposed upon the petitioner the penalty of
 "Removal from service" which shall not be disqualification
 for future employment". This penalty is imposed in terms
 of Rule 23(f) of General Insurance (Conduct, Discipline
 and Appeal) Rules, 1975 as amended with effect from 20th
 January, 1995. The consequence of the punishment,
 according to the respondents, is that the name of the
 petitioner is struck off from the roll of the company with
 immediate effect.

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 3. That the petitioner had earlier approached this Court
 by filing Writ Petition no.44 of 2002 is not in dispute.
 Further, by order passed on 17th June, 2002 in that
 petition, interim relief was denied to the petitioner.
 However, the petition has been admitted by this Court.

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 4. The facts are very few and simple. The petitioner was
 employed by Respondent no.1 as a Manager. According to
 him, he served the Company with loyalty and full
 dedication. He joined the service on 19th June, 1978.
 The petitioner was contributory to the provident fund of
 the first respondent in as much as in accordance with the
 scheme framed under the Provident Fund Act, 8.33% of the

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 petitioner’s wages were deducted as Provident Fund
 contribution. The petitioner states that the employer was
 contributing equal amount.

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 5. The submission of the petitioner is that in 1995, the
 Government of India, Ministry of Finance (Department of
 Economic Affairs) (Insurance Division) notified in the
 Gazette dated 28th June,1995 a scheme called "General
 Insurance (Employees) Pension Scheme, 1995". The scheme
 was notified in exercise of the power conferred by section
 17A of the General Insurance Business (Nationalisation)
 Act, 1972. The petitioner communicated his option of
 joining the scheme. Para 30 of the scheme provides for
 voluntary retirement and reads thus:

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 "(30). Pension on voluntary retirement:-

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 (1) At any time after an employee has completed
 twenty years of qualifying service, he may, by
 giving notice of not less than ninety days, in
 writing to the appointing authority, retire from
 service:

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 Provided that this sub-paragraph shall not apply to
 an employee who is on deputation unless after

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 having been transferred or having returned in India
 he has resumed charge of the post in India and has
 served for a period of not less than one year.

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 Provided further that this sub-paragraph shall not
 apply to an employee who seeks retirement from
 service for being absorbed permanently in an
 autonomous body or a public sector undertaking to
 which he is on deputation at the time of seeking
 voluntary retirement.

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 (2) The notice of voluntary retirement given under
 sub-paragraph (1) shall require acceptance by the
 appointing authority: -

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 Provided that where the appointing authority does
 not refuse to grant the permission for retirement
 before the expiry of the period specified in the
 said notice, the retirement shall become effective
 from the date of expiry of the said period.

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 (3)(a) An employee referred to in sub-paragraph (1)
 may make a request in writing to the appointing
 authority to accept notice of voluntary retirement
 of less than ninety days giving reasons therefor;

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 (b) on receipt of request under clause (a), the
 appointing authority may, subject to the provisions
 of sub-paragraph (2), consider such request for the
 curtailment of the period of notice of ninety days
 on merits and if it is satisfied that the
 curtailment of the period of notice will not cause
 any administrative inconvenience, the appointing
 authority may relax the requirement of notice of
 ninety days on the condition that the employee
 shall not apply for communication of a part of his
 pension before the expiry of the notice of ninety
 days.

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 (4) An employee who has elected to retire under
 this paragraph and has given necessary notice to
 that effect to the appointing authority shall be
 precluded from withdrawing his notice except with
 the specific approval of such authority:

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 Provided that the request for such withdrawal shall
 be made before the intended date of his retirement.

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 (5) The qualifying service of an employee retiring
 voluntarily under this paragraph shall be increased

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 by a period not exceeding five years, subject to
 the condition that the total qualifying service
 rendered by such employee shall not in any case
 exceed thirty three years and it does not take him
 beyond the date of retirement.

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 (6) The pension of an employee retiring under this
 paragraph shall be based on the average emoluments
 as defined under clause (d) of paragraph 2 of this
 scheme and the increase, not exceeding five years
 in his qualifying service, shall not entitle him to
 any notional fixation of pay for the purpose of
 calculating his pension.

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 Explanation: For the purpose of this paragraph,
 the appointing authority shall be the appointing
 authority specified in Appendix-1 to this scheme."

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 6. The petitioner submitted an application dated 5th
 March, 2001 seeking Voluntary Retirement from service of
 the 1st respondent in accordance with para 30 of the
 scheme.

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 7. The petitioner states that this application was
 received and duly acknowledged. Further, by letter dated

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 12th April, 2001 the petitioner requested that the notice
 period of 3 months may be reduced to one month as was done
 by respondent no.1 in other cases. The petitioner
 confirmed his willingness to pay 2 months salary in lieu
 of notice period. Though the scheme envisages 90 days
 notice, the petitioner sought curtailment of notice period
 as above.

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 8. It is the case of the petitioner that he heard nothing
 from respondent no.1 in response to his application for
 voluntary retirement. Therefore, he presumed that
 respondent no.1 has no objection to the petitioner
 retiring voluntarily from service in terms of the
 application dated 5th March, 2001. He proceeded on the
 basis that he had voluntarily retired with effect from
 16th April, 2001.

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 9. The petitioner submitted an application for permission
 to accept commercial employment which was also received.
 This application was made in terms of para 49 of the
 scheme which reads thus:

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 (49) Commercial employment after retirement:-

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 (1) If a pensioner who, immediately before his

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 retirement was holding the post of Deputy Manager
 or above and wishes to accept any commercial
 employment before the expiry of two years from the
 date of his retirement, he shall obtain the
 previous sanction of the Corporation or a Company,
 as the case may be, to such acceptance :

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 Provided that an employee who was permitted by the
 Corporation or a Company as the case may be take up
 a particular form of commercial employment during
 his leave preparatory to retirement or during
 refused leave shall not be required to obtain
 susbsequent permission for his continuance in such
 employment after retirement......

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 (8) In this paragraph,

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 (a) The expression "commercial employment" means:

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 (i) an employment in any capacity including that of
 an agent, under a company, co-operative society,
 firm or individual engaged in trading, commercial,
 industrial, financial or professional business and
 includes also a directorship of such company and
 partnership of such firm, but does not include

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 employment under a body corporate, wholly or
 substantially owned or controlled by the Central
 Government or a State Government;

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 (ii) setting up practice, either independently or
 as a partner of a firm, as adviser or consultant in
 matters in respect of which the pensioner -

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 (A) has no professional qualifications and the
 matters in respect of which the practice is to be
 set up or is carried on or relatable to his
 official knowledge or experience, or;

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 (B) has professional qualifications but the matters
 in respect of which such practice is to be set up
 are such as are likely to give his clients an
 unfair advantage by reason of his previous official
 position, or;

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 (C) has to undertake work involving liaison or
 contract with the offices or officers of the
 Corporation or a company as the case may be.

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 Explanation:

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 For the purpose of this clause, the expression

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 "employment under a co-operative society" includes
 the holding of any office, whether elective or
 otherwise, such as that of President, Chairman,
 Manager, Secretary, Treasurer and the like, by
 whatever name called in such society."

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 The petitioner has thereafter joined M/s Bajaj Allianz
 General Insurance Company. He was in touch with
 respondent no.1 for the purposes of collecting his retiral
 dues. He was, however, shocked and surprised to receive a
 letter dated 1st October, 2001 addressed by the then
 General Manager of the first respondent informing him that
 the petitioner’s twin requests, as above, have been
 rejected for want of vigilance clearance. It was pointed
 out that the petitioner has unilaterally stayed away from
 duty which act would be termed as "unauthorised absence"
 from service and that is how he would be dealt with.

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 10. Upon receipt of this letter, the petitioner moved the
 first petition being Writ Petition No.44 of 2002 in this
 Court.

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 11 On account of interim relief being refused, the
 petitioner received a show cause notice dated 20th
 September, 2002 alleging abandonment of service. The

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 petitioner filed two replies thereto. His case was clear
 in as much as he contended that the Employer- Employee
 relationship does not subsist the moment period of 90 days
 prescribed in para 30 of the scheme has come to an end.
 Since the company refused to communicate anything to the
 petitioner with regard to his voluntary retirement
 application within a period of 90 days, then, after the
 said period the petitioner ceases to be in employment and
 stands retired in terms of para 30 of the Scheme.

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 12. This stand of the petitioner was not acceptable to
 the first respondent and it proceeded to pass the impugned
 order holding therein that on account of admitted facts
 there is abandonment of the service by the petitioner
 which act is also punishable and, therefore, in the
 peculiar case of the petitioner it is permissible to
 impose penalty without holding any enquiry.

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 13. The action initiating the Enquiry and imposing
 penalty is subject matter of challenge in this petition.

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 14. Shri Singh, learned Counsel appearing for the
 petitioner, invites our attention to para 30 of the scheme
 and submits that there is no power to hold any enquiry in
 the light of clear wording of para 30(2). He emphasises

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 the proviso to para 30(2). He submits that though the
 notice of voluntary retirement given in sub para (1)
 requires acceptance by the appointing authority such
 acceptance or rather refusal to grant permission to retire
 must be before the expiry of the period specified in the
 notice. Such a notice has to be of not less than 90 days.
 Upon expiry of the period specified in the notice, there
 cannot be any refusal to grant permission for retirement
 and, therefore, retirement becomes effective after expiry
 of 90 days in this case.

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 15. Shri Singh invites our attention to para 30(3) and
 submits that curtailment of 90 days is a distinct
 contingency. In his submission para 30(4) would make the
 intention clear,. The intention to permit the employee to
 retire voluntarily after he has elected to retire and has
 given necessary notice to that effect is apparent and
 clear. Upon serving notice as aforesaid a condition is
 imposed on the employee. He cannot withdraw the notice
 except with specific approval of the employer and that too
 before the intended date of his retirement. Equally the
 employer is obliged to communicate his refusal, if any,
 within the period of notice i.e.90 days. Once the notice
 period expires then retirement becomes effective.

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 16. In support of his submissions, Shri Singh placed
 reliance upon the orders passed in similar cases by
 Division Benches of Delhi High Court.

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 17. On the other hand, Shri Kothari appearing for the
 respondents submits that the petitioner is not entitled to
 any discretionary and equitable relief. His conduct is
 such that he did not bother to inform the respondents
 before accepting commercial employment in private sector.
 His application made on 5th March, 2001 itself cannot be
 considered as a request for voluntary retirement in terms
 of para 30 of the Scheme. Once such is the position, then
 there is no question of further paras or clauses of para
 30 being applicable. Consequently, the act of the
 petitioner, in staying away from service unauthorisedly
 has to be viewed seriously and for which penalty
 prescribed by the Rules can be imposed upon him. That
 such a penalty (removal from service) can be imposed
 without fulfledged departmental enquiry, in an appropriate
 case, is not being disputed at all. There is no question
 of any voluntary retirement from service nor can it be a
 case of resignation by the petitioner. In these
 circumstances and when on earlier occasion, this Court
 declined interim relief, the present petition should not
 be entertained and is liable to be dismissed with costs.

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 18. Shri Kothari has relied upon the following decisions
 in support of the above submission.

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 i) Dharmarathmakara Raibahadur Arcot Ramaswamy

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 Mudaliar Educational Institution Vs. Educational
 Appellate Tribunal and others reported in (1997) 7
 Supreme Court Cases 332.

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 ii) Aligarh Muslim University and others Vs.
 Mansoor Ali Khan reported in (2000) 7 Supreme Court
 Cases 529; and

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 iii) Dr.Anil Bajaj Vs. Post Graduate Institute of
 Medical Education and Research and others reported
 in 2002(4) All MR 248 (SC).

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 19. For properly appreciating the rival contentions, it
 would be appropriate if a reference is made to the
 application preferred by the petitioner on 5th March,
 2001.

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 20. In that application, the petitioner prayed that he
 should be permitted to retire voluntarily so also to take

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 up commercial employment. He requested that the notice

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 period be reduced from 90 days to 30 days. He has given
 an undertaking that he would not apply for commutation of
 part of the pension before expiry of notice period of 90
 days. A separate application was being made by him for
 permission to engage in commercial employment.

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 21. On perusal of this application, it is not possible to
 agree with Shri Kothari that para 30 of the Pension Scheme
 of 1995 is not being invoked by the petitioner. The first
 contention of Shri Kothari must, therefore, fail.

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 22. Secondly, what we find is that on 12th April, 2001
 the petitioner addressed a communication in the following
 terms.

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 The Oriental Insurance Company Limited

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 12th April,2001

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 The Chairman-cum-Managing Director
 Oriental Insurance Company
 Head Office
 New Delhi

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 THROUGH PROPER CHANNEL
 BY REGD.A.D.

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 Dear Sir

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 Re: My application for Voluntary
 Retirement from the services
 of the Oriental Insurance
 Company.

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 This has reference to my application dated 5th
 March, 2001 for Voluntary Retirement from the
 services of the Company. In the said application I
 had requested that the notice period of three
 months may please be reduced to one month as was
 done by the company in other cases. I also confirm
 that I would be willing to pay two months salary in
 lieu of notice period in keeping with the Company’s
 practice.

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 In view of the fact I have not heard anything
 regarding my application for Voluntary Retirement
 from the services of the Company, I presume that
 the Company has no objection to my Voluntary
 Retirement as per the terms of my application dated
 5th March, 2001. In view of this fact, I presume
 that the same has been accepted and I shall proceed
 on Voluntary Retirement from 16th April, 2001.

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 I once again wish to place on record my gratitude
 to each one in Oriental Insurance for the support
 extended to me during the discharge of my duties.

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 Thanking you.

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 Yours faithfully,
 Sd/-
 (J.Nayar)

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 Manager.

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 Shri B.D.BANERJEE
 CHAIRMAN CUM MANAGING DIRECTOR
 THE ORIENTAL INSURANCE CO.

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 HEAD OFFICE, NEW DELHI.

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 23. To both communications referred to above, a reply was
 sent on 1st October, 2001 by the respondents which is in
 the following terms:

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 " THE ORIENTAL INSURANCE COMPANY LIMITED
 Mumbai Regional Office No.1
 Oriental House, 2nd floor,
 7,Jamshedji Tata Road,
 Mumbai 400 020.

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 1st October, 2001

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 PERSONAL DEPT.

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 Shri J.Nayar
 C/504, Adarsha Apartments
 Spring Mills Compound
 Naigaon, Dadar,
 MUMBAI 400 014

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 Re: Your request for Voluntary retirement
 under Para 30 of the Pension Scheme and
 request for Commercial employment.

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 We refer to your letters dated 5th march, 2001 and 12th

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 April, 2001 on the above subject.

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 The matter was referred to the Competent Authority and we

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 have been informed that your request for Voluntary
 Retirement could not be considered for want of Vigilance
 Clearance from the concerned Authorities.

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 We take reference of your letter dated 12/04/2001
 informing the Company that you have unilaterally on your
 own presumed acceptance of VRS and decided to keep away
 from the duties of the Company since 16/04/2001.

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 We may add here that the permission to accept Commercial
 Employment after retirement arises only after request for
 Voluntary Retirement is accepted by the Competent
 Authority.

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 In view of the above, your absence from duty
 w.e.f.16/04/01 is being treated as Unauthorised absence.

¶123

 Thanking you,

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 Yours faithfully,

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 Sd/-
 (M.K.JINDAL)
 ASSTT.GENERAL MANAGER.

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 24. We have reproduced para 30 of the Scheme only to
 emphasise the fact that the scheme postulates retirement
 which is on attaining the age of superannuation so also by

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 other mode.

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 25. Para 2(j) defines the term "Date of Retirement",
 which reads as under:

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 "2(j) "date of retirement" means the last day of
 the month in which an employee attains the age of
 superannuation or the date on which he is retired
 by the Corporation or a Company or the date on
 which the employee voluntarily retires."

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 26. Thus, the date of retirement can be a date on which
 the employee voluntarily retires. The term "retirement"
 is defined in para 2(t) of the scheme to mean the
 following.

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 "(t) "Retirement" means:

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 (i) the retirement in accordance with the
 provisions contained in paragraph 12 of General
 Insurance (Rationalisation and Revision of Pay
 scales and Other Conditions of Service of

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 Supervisory, Clerical and Subordinate Staff)
 Scheme, 1974 notified under the notification of
 Government of India in the Ministry of Finance

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 (Department of Revenue and Insurance) number S.O.

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 326(E) dated the 27th May, 1974;

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 (ii) the retirement in accordance with the
 provisions contained in paragraph 4 of the General
 Insurance (Termination, Superannuation and
 Retirement of Officers and Development Staff)
 Scheme, 1976 notified under notification of
 Government of India, in the Ministry of Finance
 (Department of Economic Affairs) number S.O.627(E)
 dated 21st September, 1976;

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 (iii) Voluntary retirement in accordance with the
 provisions contained in paragraph 30 of the scheme:

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 27. Thus, Voluntary Retirement in accordance with Rules
 contained in para 30 of the scheme is nothing but
 retirement from services of the respondents.

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 28. In this backdrop, Chapter V in which para 30 falls
 needs to be noticed. An employee who has completed 20
 years of qualifying service, may by giving notice of not
 less than 90 days, retire from service. The words "not
 less than 90 days" would mean that a longer period is also
 contemplated. It can be thus more than 90 days but not

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 less than the same. This is the period of notice. The

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 notice has to be given in writing to the Appointing
 Authority. The notice requires acceptance by the
 Competent Authority. However, if within the period of
 notice (specified in the notice itself) permission to
 retire voluntarily is not refused, then, the retirement
 shall become effective from the date of expiry of the said
 period.

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 29. A combined reading of the sub paras of para 30 would
 make it clear that for an employee to be admissible to
 pension his voluntary retirement application has to be in
 the manner provided in para 30. Its acceptance also must
 be in the same manner. If the employee cannot withdraw
 his offer after the period of 90 days or Notice Period has
 expired, then, the employer is also bound to act in terms
 of the proviso below para 30(2) of Chapter V of the
 scheme.

¶146

 30. In the instant case, the communication dated 1st
 October, 2001 is much beyond the period prescribed in para
 30. The application for voluntary retirement stipulates
 90 days. The application is dated 5th March, 2001. There
 is a reminder on 12th April, 2001.It is true that the
 petitioner proceeded upon the basis that his application

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 for voluntary retirement is accepted. He proceeded for
 commercial employment even before the period stipulated in
 the notice came to an end. Thus, without waiting for 90
 days to get over he proceeded in the matter. According to
 Shri Kothari this act of the petitioner disentitles him to
 all benefits under para 30 of the scheme. It is clear
 that by his own conduct he has waived the notice and
 right, if any, flowing therefrom. It is not possible for
 us to accept these submissions. Once we hold that the
 notice is for voluntary retirement in terms of para 30 of
 the scheme, then, it was incumbent upon parties to abide
 by the stipulations thereof. The scheme provides for the
 voluntary retirement and also the date when it is
 effective. On both sides conditions are imposed. This is
 a scheme fully covered by the law laid down in the case of
 Bank of India and others Vs.O.P.Swaranakar etc. reported
 in AIR 2003 Supreme Court 858 and more particularly the
 observations in paras 92 to 117 thereof. In such
 circumstances, the communication of 1st October, 2001
 purporting to refuse permission is contrary to the scheme.
 Assuming that the act of the petitioner in not reporting
 for work after 16th April, 2001, is contrary to para 30 of
 the scheme which postulates minimum 90 days notice period,
 yet, nothing prevented the respondents from communicating
 to the petitioner the refusal in terms of the proviso to

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¶150

 para 30(2) within the period of 90 days or if the
 vigilance clearance was awaited or investigation ordered
 by the Special Judge, communicate that fact as well,
 atleast by August, 2001. Admittedly the letter of 1st
 October, 2001 is beyond the period stipulated in the
 notice issued by the petitioner and received by the
 respondents. It is not the respodnents’ case that they
 received the communicationsl of the petitioner after the
 notice period. There is no explanation forthcoming from
 the respondents about the period i.e. date of receipt of
 notice from the petitioner till October, 2001. The
 communication dated 1st October, 2001 rejecting permission
 to retire voluntarily for want of vigilance clearance is
 bad in law being contrary to the scheme itself. If the
 record in Writ Petition No.44 of 2002 is perused, it is
 apparent that the communication from CBI was received by
 the respondents on 10th May, 2001. The CBI was of the
 view that there is enough material to hold regular
 Departmental Enquiry against the petitioner and others.
 It is not as if this fact was already known to the
 petitioner. There is no material to hold that he decided
 to take voluntary retirement on account of his involvement
 in a criminal case. The criminal case is of 1999.

¶151

 Despite this the respondents accepted the application
 dated 5th March, 2001 and further letter dated 12th April

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¶153

 but did nothing within the notice period.

¶154

 31. It is in the facts peculiar to this case and

¶155

 considering the clear language of the scheme that it is
 not necessary to deal with any larger issue and
 controversy. The petitioner could not have been proceeded
 with for abandoning his services when the conduct of the
 respondent is contrary to the scheme. The scheme and the
 para under consideration will have to be read in its
 entirety. Nothing can be seen in isolation and torn from
 context. If all sub clauses/paras of para 30 are read
 together it is clear that obligation of the employer has
 not been discharged by the respondents in this case. This
 is a case where fraud or ulterior motives are not alleged

¶156

 by the respondents. It is not their case that the
 petitioner is in any way responsible or instrumental in

¶157

 the respodnents not responding to his letters dated 5th

¶158

 March, 2001 and 12th April, 2001. In a case of fraud

¶159

 being alleged and proved the situation is bound to be
 viewed differently. Fraud vitiates every thing.

¶160

 32. In the result all proceedings which have been

¶161

 commenced pursuant to the communication/letter dated 1st
 October, 2001 including the charge sheet and enquiry so
 also the subsequent punishment are vitiated and,

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¶163

 therefore, deserve to be quashed and set aside.

¶164

 33. The conduct of the petitioner and the order passed by
 this Court refusing interim relief in the earlier petition
 and permitting the employer to hold an enquiry could not
 in any manner be considered as diluting the rigour of para
 30 of the scheme. In any event, the order is an interim
 order. Any observation or finding or direction which
 takes away the right conferred upon the employee by para
 30 of the scheme cannot be given effect to or else the
 scheme would be rendered nugatory. We cannot lose sight
 of the fact that the scheme is framed in exercise of the
 powers conferred by Sec.17A of the Act of 1972. Nothing
 is pointed out from the scheme and the Act which would
 take away the benefit under the scheme available to the
 petitioner merely bercause some case is pending in a
 criminal court. It may be that the order passed by this
 Court on 17th June, 2002 makes a reference to the
 proceedings culminating in the order of the Special Judge,
 C.B.I.dated 8th June, 2001. However, nothing prevented

¶165

 the respondents from initiating appropriate proceedings
 and refusing permission to retire in the face of this
 order within the period prescribed or the notice period
 i.e. 90 days. Far from assisting the respondents, the
 fact of the order dated 8th June, 2001 of the Special

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¶167

 Judge in the CBI Special case being known to them much
 earlier militates against their stand. The permission to
 retire could have been refused by the respondents within
 90 days from 16th April, 2001. That having not been done,
 the CBI case or the conduct of the petitioner is wholly
 irrelevant in the facts of this case. For identical
 reasons, the observations in the interim order of this
 Court in Writ Petition No.44 of 2002 would not be of any
 assistance. In the light of the conclusions drawn by us,
 the decisions of the Supreme Court on the concept of
 abandonment of service and the penalty prescribed for
 unauthorised absence are totally inapplicable. They are
 rendered in the context of admitted unauthorised absence
 and overstaying extra ordinary leave. The Hon’ble Court
 upheld the argument that principles of natural justice may
 not apply in such cases.

¶168

 34. Consequently, writ petition No.303 of 2007 succeeds.
 Rule is made absolute in terms of prayer clause (a).
 However, as the petitioner has himself relied upon Delhi
 High Court orders and his communication making it clear
 that he does not want pension for the concerned period so
 also he is willing to pay the amount of two months salary
 in lieu of notice, it is directed that the petitioner
 would not be granted pension for two years. This order is

¶169

 -28-

¶170

 passed because the petitioner had already taken up

¶171

 commercial employment. Rule is made absolute in the above
 terms with no order as to costs. However, this judgment
 and order and any observation herein shall not in any
 manner influence the outcome of the criminal/special case
 which must proceed on its own merits and in accordance
 with law.

¶172

 35. In the light of the order passed in Writ Petition
 No.303 of 2007 writ petition no.44 of 2002 does not
 survive and is accordingly disposed of.

¶173

( CHIEF JUSTICE )

¶174

(S.C.DHARMADHIKARI J.)

Jitendranath Nayer v. the Oriental Insurance Co. Ltd. and Anr.

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Jitendranath Nayer v. the Oriental Insurance Co. Ltd. and Anr.

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