Union of India, through Secretary, Ministry of Home Affairs Vs Mr. Naresh Kumar Tyagi

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Neutral Citation No. 2026:JHHC:3564-DB

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No. 22 of 2025

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Union of India, through Secretary, Ministry of Home Affairs, North Block, P.O. & P.S.- Lodhi Road, New Delhi.

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Director General, Central Industrial Security Force, Ministry of Home affairs, Block 13, P.O. & P.S.- Lodhi Road, New Delhi.

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The Deputy Inspector General, C.I.S.F. Unit BCCL, Koyla Nagar, P.O. & P.S.- Dhanbad, Dist: Dhanbad (Jharkhand).

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The Commandant CISF Unit BCCL Koyla Nagar, Dhanbad (Jharkhand), (Bihar).

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... Respondents/Appellants

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Versus

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Mr. Naresh Kumar Tyagi, Ex-Constable CISF, son of Sri Attar Singh, resident of Village – Kharkhauda, P.S. Kharkhauda, P.O. Kharkhauda, District Meerut (Uttar Pradesh)

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... Petitioner/Respondent --------- CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE RAJESH SHANKAR

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--------For the Appellants: Mr. Prashant Pallav, A.S.G.I. Ms. Niki Sinha, C.G.C. Ms. Shreya Shukla, A.C. to A.S.G.I. For the Respondent: None. --------- 06/Dated: 10.02.2026

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I.A. No. 11177 of 2025

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1. This I.A. seeks condonation of delay of 140 in instituting this appeal.

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2. Mr Prashant Pallav, learned A.S.G.I., appearing for the appellant, states that notices were issued on 01.05.2025 and that the records show they were duly served.

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3. Some cause is shown in paragraphs nos. 5 to 8, and we deem the same as sufficient.

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4. Accordingly, the delay of 140 days in instituting this appeal is condoned, and I.A. No. 11177 of 2025 is disposed of.

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Neutral Citation No. 2026:JHHC:3564-DB

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L.P.A. No. 22 of 2025

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5. Upon condoning the delay, we have heard Mr Prashant Pallav, learned A.S.G.I., in the LPA challenging the learned Single Judge’s order dated 20^th February 2024, allowing the sole respondent’s W.P. (S) No.5345 of 2017 and directing his reinstatement with consequential benefits.

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6. Mr Prashant Pallav, learned A.S.G.I., submitted that the finding about the respondent’s application for voluntary retirement not being voluntarily or submitted under some coercion or undue influence warranted a summary dismissal. There was no material whatsoever in support of such a contention. In any event, such a contention could not have been adjudicated in summary proceedings under Article 226 of the Constitution of India.

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7. Mr Pallav submitted that, by an application dated 16^th of June 2010, the respondent offered to retire voluntarily, effective from 01.09.2010. But this offer was approved and provisionally accepted by letter dated 07.08.2010. After the acceptance, the respondent could not have applied for withdrawal of the application dated 16.06.2010. Inasmuch as this contention has not been correctly appreciated, the learned Single Judge’s order warrants interference.

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8. Mr Pallav, without prejudice, submitted that the respondent, having accepted all retirement benefits, including pension, was estopped from challenging the letter dated 07.08.2010 by which his application for VRS was provisionally accepted. He further submitted that the impugned order had not issued any directions for the

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Page 2 of 12

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Neutral Citation No. 2026:JHHC:3564-DB

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adjustment of the amounts already paid, out of the consequential benefits. He submitted that this was an error apparent on the face of the record, which was required to be corrected by this Court.

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9. Mr Prashant Pallav submitted that there was no clear evidence that the respondent had applied to the competent authority on the 30th of August 2010. Therefore, it was not improper to disregard the respondent’s belated representations seeking withdrawal of the offer of VRS. He further submitted that the representations dated 09.08.2010, 16.08.2010 and 25.08.2010 were neither clear nor categorical, and on that basis there was no question of permitting the withdrawal of the offer to voluntarily retire effective from 01.09.2010.

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10. Without further prejudice, Mr Prashant Pallav submitted that there was neither any statement in the original writ petition nor any evidence to show that the respondent was not gainfully employed. In such circumstances, the learned Single Judge grossly erred in directing payment of full back wages.

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11. Mr. Prashant Pallav relied upon Allahabad Bank and Others vs. Avtar Bhushan Bhartiya¹ to contend that the burden of establishing that the employee was not gainfully employed, is always on the employee. Mr Prashant Pallav submitted that in this case, such burden has not been discharged and therefore, full back wages would not have been ordered.

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12. Mr Prashant Pallav also submitted that the petition before the learned Single Judge was filed only in September 2017, when the

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1 (2022) 13 SCC 202

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Page 3 of 12

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alleged cause of action arose in September 2010. He submitted that this delay was both inordinate and unexplained. For this reason, the respondent's petition warranted summary dismissal.

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13. Based on all the above contentions, Mr. Prashant Pallav submitted that this appeal may be allowed and the learned Single Judge’s order may be set aside. In the alternative, he submitted that the impugned order may be suitably modified in the context of an order for payment of all consequential benefits.

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14. As noted earlier, the respondent, though served, has not chosen to appear today. Considering the averments in the petition relating to the respondent's financial status, it is possible that the respondent's non-appearance is attributable to the respondent's inability to afford the costs of litigation. Besides, the learned Single Judge’s order, which is impugned in this petition, was made on 20.02.2024. Under this order, the respondent was directed to be reinstated with all consequential benefits. However, despite there being no interim relief from the Division Bench, the appellants have chosen not to implement the learned Single Judge’s directions. Even this appeal was filed after a delay of 140 days.

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15. The records show that, by application dated 16.06.2010, the sole respondent offered to retire voluntarily from his service, specifying that such retirement should take effect from 01.09.2010. Records also show that there is a background which prompted the sole respondent to take this step of offering voluntary retirement from service.

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Page 4 of 12

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16. The respondent was appointed as a constable in the CISF on 26.08.1987. During the service, he observed certain activities that, in his view, were detrimental to the organization’s interests. Therefore, he made complaints to his superiors. These complaints were not well taken, and he has pleaded that he was compelled to offer to retire voluntarily. He has pleaded that he was reprimanded by his superiors. Ultimately, by application dated 16.06.2010, the respondent applied to proceed on voluntary retirement effective from 01.09.2010.

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17. At this stage, we do not wish to go into the issue of whether the offer for voluntary retirement was indeed voluntary or it was a product of coercion. Even the learned Single Judge has not proceeded on the premise that the offer to retire voluntarily was not, in fact, voluntary. Even if we proceed on the premise that the offer was voluntary, the respondent clarified that the voluntary retirement should take effect from 01.09.2010.

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18. Merely because such an offer of voluntary retirement was provisionally accepted by letter dated 07.08.2010, the respondent did not forfeit his locus poenitentiae to seek withdrawal of the offer at any date before 01.09.2010. The contention that the respondent lacks locus standi to withdraw his offer once the offer was accepted on 07.08.2010, therefore, cannot be accepted. Such contention is contrary to several decisions of the Hon’ble Supreme Court that have already been considered by the learned Single Judge in the impugned order.

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19. The contention that the withdrawal letter of 30.08.2010 was never received by the competent authority or that the earlier representations

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dated 09.08.2010, 16.08.2010 and 25.08.2010 were not quite clear cannot be accepted. The records clearly indicate that the communication dated 30.08.2010 and the representations made prior to that date were received by the competent authority. All these communications state that the petitioner wished to withdraw his offer for voluntary retirement.

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20. The communication dated 30.08.2010 is clear and unambiguous. When the previous representations are holistically considered, they clearly spell out the respondent’s intention to withdraw the offer of voluntary retirement, much before the date on which the same was to take effect. The representations also shed light on the circumstances under which the petitioner offered to retire voluntarily from service. Therefore, contention based upon the ambiguity or non-receipt of the communications seeking to withdraw the offer of voluntary retirement cannot be accepted.

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21. In the case of Balram Gupta vs. Union of India and Another² , the Hon’ble Supreme Court has held that where the retirement from Government service was to take effect at a subsequent date prospectively, and that withdrawal was long before that date, the Government Servant had the necessary locus poenitentiae to withdraw the offer even though, in the meantime, the Government had purported to accept the offer and attempted to relieve the Government employee.

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22. The Court held that, up to the prospective date indicated in the offer to retire voluntarily, the employee was, and remained, a

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2 1987 Supp SCC 228

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government employee. Any unilateral termination in the meantime was of no consequence, and until the prospective date, such a Government employee could seek withdrawal of the offer of voluntary retirement.

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23. The Hon’ble Supreme Court also interpreted the rules that empowered the competent authority to reject the offer of voluntary retirement. In Balram Gupta (supra) , the only reason put forward by the Government employee was that his relatives and colleagues persuaded him to withdraw the offer. The Hon’ble Supreme Court held that this could be a good and valid reason. The Hon’ble Court noted that in the modern age, we should not put an embargo upon people’s choice or freedom. The Hon’ble Court noted that in the modern and uncertain age it is very difficult to arrange one’s future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, at least they should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the Government employee to withdraw his letter of retirement. Many complications that arose could have been avoided by such a graceful attitude. The Hon’ble Court also condemned circuitous ways “to ease out” uncomfortable employees. The Court noted that, as a model employer, the Government must conduct itself with high probity and candour toward its employees.

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24. The above decision, which has been subsequently followed in J.N. Srivastava vs. Union of India and Another³ and Dharam Pal

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3 (1998) 9 SCC 559

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Neutral Citation No. 2026:JHHC:3564-DB

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Singh vs. Union of India and Others⁴ , affords a complete answer to the contentions of Mr Prashant Pallav in this appeal. Since the learned Single Judge’s order is in line with the law laid down by the Hon’ble Supreme Court in the above-referred decisions, we see no good grounds to interfere with the same in the appeal.

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25. So far as the issue of delay and laches is concerned, the learned Single Judge rightly rejected it in the facts of the present case. The records show that after the cause of action accrued, the respondent instituted a Civil Suit No. 272 of 2012 before the District Court in New Delhi. This was dismissed on 29.04.2015 only on the ground of ‘lack of territorial jurisdiction’. On legal advice, the petitioner appealed the dismissal, and this appeal was also dismissed on 15.03.2016 by the learned Additional District Judge, Saket Courts, New Delhi. Soon thereafter, Writ Petition No. 5345 of 2017, in which the impugned order was made, was filed. This constitutes a reasonable explanation for the so-called delay.

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26. This is not a case where the respondent acquiesced in the appellants' decision, thereby forcing him to retire. This is a case where the respondent immediately raised the issue before a court of law. Only after the Civil Courts ruled “it lacked territorial jurisdiction”, the respondent instituted the W.P. (S) No. 5345 of 2017. Thus, there is no merit in the argument based on delay and laches.

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27. On the issue of back wages, the decision in the case of Allahabad Bank and others (supra) applies the law laid down in

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4 (2007) 15 SCC 770

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Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya and Others⁵ which holds that ordinaril y, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. Further, if the employer seeks to avoid payment of full back wages, it must plead and lead cogent evidence to prove that the employee/workman was gainfully employed and was receiving wages equal to those he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee demonstrates that he was not employed, the onus lies on the employer to plead and prove that the employee was gainfully employed and was receiving the same or substantially similar emoluments.

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28. Now in this case, the respondent, both in his suit as well as the writ petition, has pleaded that he hails from a poor family; his son was studying for Engineering and the same involved a lot of expenses; his daughter was of marriageable age; his old parents were bed-ridden; and more pertinently, the respondent pleaded that he had no source of income other than the meager pension.

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5 (2013) 10 SCC 324

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27. Again, in the context of explaining the delay in instituting the petition, the respondent explained that he comes from a poor agricultural family; he has a large family to support, and his native place is District Meerut (U.P.). For these reasons, he could not move the Jharkhand High Court and was advised to challenge the appellants’ action by filing a civil suit in Delhi.

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29. The averments in the petition demonstrate sufficient compliance with the requirement referred to in Allahabad Bank (supra) and Deepali Gundu Surwase (supra). The respondent clearly pleaded that he had no source of income other than the meagre pension he was receiving. The respondent also pleaded his pathetic financial condition, coupled with the financial responsibilities he was bearing. In contrast, the appellants did not even bother to plead, much less lead cogent evidence to prove that the respondent was indeed gainfully employed and was getting wages equal to the wages he was drawing before the termination of his services.

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30. Thus, the respondent’s pleadings were well within the ambit prescribed in the two decisions relied upon by Mr Prashant Pallav; the appellants’ pleadings, coupled with a complete lack of cogent evidence, conflict with the law laid down in these two decisions. Therefore, based on these two decisions, there is no basis to deny the respondent back wages and other consequential benefits.

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31. Mr. Pallav submitted that the respondent has attained the age of superannuation on 31^st of March 2025. If that is correct, then the direction for reinstatement may no longer be capable of compliance. To

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that extent, the learned Single Judge’s order will stand modified. However, this will not relieve the appellants of their obligation to pay all consequential financial benefits to the respondent up to the date of his superannuation, i.e., 31^st of March 2025. Pensionary benefits will also be revised and paid to the respondent.

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32. The learned Single Judge has expressly directed payment of “consequential benefits”. This means that, out of the back wages and other financial benefits due and payable to the respondent, suitable adjustments will have to be made to reflect the amounts the appellants have already paid to the respondent, including, inter alia, retirement benefits and pension. The balance amount should now be paid to the respondent within eight weeks from today, without forcing the respondent to institute yet another contempt petition.

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33. The appellants must give some credence to the fact that there was no allegation of any dereliction of duties or lack of integrity qua the respondent. Perhaps some superiors were not pleased with the respondent's repeated complaints, which may have rendered the respondent an “uncomfortable employee”. As observed by the Hon’ble Supreme Court in the case of Balram Gupta (supra), the Courts cannot but condemn circuitous ways “to ease out” uncomfortable employees. As a model employer, the Government must conduct itself with high probity and candour with its employees.

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34. This appeal is accordingly disposed of in the above terms without any order for costs. However, we clarify that if the respondent’s dues are not paid within eight weeks from today, they shall accrue interest at

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7% p.a. from the date such amount becomes due, calculated from the date of actual payment. Further, such interest should first be paid by the appellants and then recovered from the officials responsible for the delay. Directions for payment of interest shall be without prejudice to

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any action under the Contempt of Courts Act, 1971.

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35. The appeal is, thus, disposed in the above terms.

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36. Pending I.A., if any, shall also stand disposed of.

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(Rajesh Shankar, J.)

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February 10, 2026

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A.F.R.

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Manoj/ Sharda/Cp.2 Uploaded on 12-Feb-26

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Union of India, through Secretary, Ministry of Home Affairs v. Mr. Naresh Kumar Tyagi

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Union of India, through Secretary, Ministry of Home Affairs v. Mr. Naresh Kumar Tyagi

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