Upgrad LLM

voluntary retirement


Dear Friends,

 

I was a state government for last 12 years. I approached High Court for a Study Leave. But the Hon'ble Court gave me voluntary retirement and then my employer released me. Now my employer is saying that I cannot get pension since my service is less than 20 years. But if I am not eligible for pension, I am also not eligible for voluntary retirement, which is also for 20 years as per rules.

Due to sudden termination of my secured job, I kept silent for 4 months, but then appealed before the High Court for my reinstatement. But this was rejected by Court.

I am now a looser in all respect. What should I do now to get my job back or at least to get pension?

Please Help Me.

 
Reply   
 
Dy Director

refusal of study leave was no ground to move to go to court.

 

your query doe snot show the details of the case.  Pri-faie given facts indicate dead end.

 

come forard with facts if any facts are hidden.

 
Reply   
 



Thank you for your reply SudhirJi.


The facts are a follows:

1. In July 2013, I got an Higher Study offer and applied for study leave immediately through proper channel. But it was kept delaying by my employer.

2. In december 2013, I moved to High Court.

3. My lawyers prepared the writ petition and perhaps had little knowledge on service matters, he also misadvised me.

4. In the write petition, I decsribed the facts and in the PRAYER portion, it was written only to grant study leave and pass any other order as the Court thinks fit and proper.

5. Inside the petition (not in the prayer), with misadvise of my lawyer, it was written that "If study leave is not granted, I further pray for relinquishment of my service subject to the grant of proportionate pension and all other retirement benefits for the period of my service".

6. At the time of hearing, my application for study leave to my employer was not still rejected, but it was under consideration. Also, I never prayed to my employer for relinquishment of my service. Still, the Judge ordered that "I ORDER THE EMPLOYER TO ACCEPT HIS PRAYER FOR VOLUNTARY RETIREMENT AND RELEASE HIM WITHIN 7 DAYS AND TAKE STEPS FOR RELEASING BENEFITS TO HIM WHATEVER ADMISSIBLE UNDER THE RULES".

7. Being dissatisfied with the order, I appealed in the same court for recalling and withdrawal of the order after 5 days, but before I serve the copies of this appeal to the employer, they gave me the release order.

8. I was shocked and lost my sole income source, therefore to proceed further with my appeal and bear the huge legal expense was not possible for me.

9. After 4 months, I moved with the appeal. But the Court rejected my appeal saying that I have already accepted voluntary retirement so it is irrevocable.

10. I immediately filed appeal in division bench which is now pending.

 
Reply   
 
advocate/counsel supreme court

my dear friend,

when you know 20 years are needed for voluntary retirement, after 12 years of service you are allowed voluntary retirement by hon high court , as you needed study leave, is it not?

Let us say you do not know, as you are not a law knowing person but some administrative man in state service.

when so you are given voluntary retirement under presumed deemed 20 years service rule principle, when so you can issue the Notice to the state government authority u/s 80 CPC why they did not argue then and there that the appellant  had  in the state not completed 20 years service rule fitment for voluntary retirements and ;

the state suppressed to inform the rule relating of 20 years to get voluntary retirement to be permitted; and thus the state authority committed perjury against court;, if the state informed probably court may not have allowed your plea for study leave; if that were so, naturally you would be in the same service on a continuous basis;  and you would have worked at least another 8 years more and earned your legitimate  voluntary retirement, as pension is a legitimate expectation of an employee if he works 5 years or more  like in gratuity case under gratuity statute or law, whartever you may choose to call

 

so the state govt committed contempt of court by not pleading the 20 year service rule and state govt authority is punishable under contempt of court, so you can inform the state why you should not file contempt of court proceedings against state for suppression of rule of 20 year minimum condition for voluntary retirement, as court may not have recollected then, after all courts work on a serious burden of over whelming cases invariably filed by state and central governments.

second plea the authority made unnecessarily made the state to pay you voluntary retirement benefits, if paid; then, they cut into tax payers funds to state;

if not paid, but just accepted resignation and treated as voluntary resignation in records purposes they again committed double jeopardy that is the state authority committed  clear contempt, under perjury on hon court ,as also perjury against State;

as the authority chose to play clever with hon court; when they allowed  you so called voluntary retirement ,by not paying voluntary retirement benefits;

 

if paid the authority again committed another contempt   against State service rules which is again tantamounting  to third or fourth perjury,;

and as such your notice seeks under what rules of procedure they should stop proceeding against the authority ;

and if reply is not forthcoming with in 21 days of receipt of your Notice from the Authority, you would presume, they have no suitable reply  to your Notice;

and thus you would be compelled to file contempt of court and contempt of State rules as also perjury cases against state ;

 

Again you ask in your Notice when voluntary resignation order of court is given effect,  neither court nor State considered the voluntary resignation position granted to you automatically confers on you the right for pension;

as pension is a fundamental property right  under Art 31 to be read under Art 30O,;

Chandrakumar judgement by SC,  thus, you can invoke,  your fundamental right property  doctrine as  explained in the said case law by a constitutional bench;

, you seek from the state authorities what is their position that you should not proceed against them by law ;and if so, ask them to furnish the relevant provisions from service law jurisprudence or any statute, not supporting your position  by relevant sections of service rules or relevant statutes you are governed by, in the state.

 

If no response is provided to you within 21 days of the Notice u/s 80 of CPC 1908, you would presume that the state has no suitable response and accordingly another contempt the authorities committed against constitution of India and thus you would use Art 226 Writ before HC.

 

Look for replies in 21 days of each Notice, send separate Notices under each perjury and contempt laws, that would make them make contrary claims which would turn against them under conflict of their own claims that in the end a compromise might be struck by state with you like giving you job treating your absence as some extraordinary leave under special Governor's Order as a GO or they might grant you pension treating your 12 years service as deemed 20 years service for purposes of pension,  

Always study leave is granted without pay and allowances maximum for two years subject to extensions, if your study is anyway helpful to the State as such, none can deny any one's betterment by education under Art 19 r/w Art 21'

Study leave need not necessarily be helpful to stat,e but for the betterment of a person as a citizen of a country.

In these circumstances you can eclipse the authority;  regards

 
Reply   
 
Dy Director

It is your fault if you had gone to litigation in service matter without an advocate having knowledge of service laws.  All lawyers cannot be masters of service matters.  You can see examples on this forum also.

 

Both you and Govt have hidden the fact from court that you were ineligible for pension. Beware the court order as you stated grants only retirement it does not grant pension.

 
Reply   
 
Dy Director

I am not able to agree with following observations of Dr G Balakrishnan

 

"Always study leave is granted without pay and allowances maximum for two years subject to extensions, if your study is anyway helpful to the State as such, none can deny any one's betterment by education under Art 19 r/w Art 21"

 

Leave rules provdes that study leave is granted :-

 

(i) only to permanent employee

(ii) employee should have compelted 5 years of service

(iii) employee should have atleast 5 more years of servise left.

(iv) granted upto 24 months in entire career.

(v) the course in the opinion of the deptt  should enable the employee to perform wellin his profession

(vi) employee on completion of last spell of study leave has to serve for minimum of three years.

(vi) failure to complete three years service renders him liable to refund entire pay and allowances drawn during study leave.

 

Further if the study leave is granted it is never without paid, it is a paid leave.

Further  no leave can be claimed as a matter of right.

 
Reply   
 
Dy Director

It is not wise to infer what he pleasded or the state pleaded in their defence without seeng each and every papers, [about 10 Kg] that he may behaving.

 

He has not even been kind enough to disclosed :-

 

  1. What is his profession
  2. what is the course
  3. why leave was not granted.
  4. what did he plead before court
  5. what did the deptt plead
  6. whether he has challnaged high court judgement in time.
 
Reply   
 
advocate/counsel supreme court

i think law club has better lawyers to browbeat the client, i do not think i am a right man, may be because i do not want to deny our indian experts lose a client but certainly all of the experts seem to be on panel of governments in our law club, best of luck.

any way i suggest the appellant move a clarification petition for the words used Voluntary and Voluntary resignation used in his order instead of pleading reinstatement that is all,

 

i am replying from Boston on lecture tour in USA. I amon Original side of Bombay high court for about two decades earlier in other courts though i was a professor of law at University of Bombay, overall abt 50 years equal to many of our experts regular age means i am still a learner i do not claim as an expert though i a sr counsel in SC too. thanks n regds,

 
Reply   
 

  1. What is his profession: Lecturer, State Aided University (Permanent)
  2. what is the course: Post Doctoral Research in USA
  3. why leave was not granted.: They Authority did not rejected, but was delaying the matter and the last dead of joining the Post Doctoral work was ahead.
  4. what did he plead before court: My Lawyer, without having any knowledge (and may be bribed by the opposite parties), pleaded that if study leave cannot be granted, then voluntary retirement may be considered.
  5. what did the deptt plead: The applicant should pray before the employer seeking voluntary retirement
  6. whether he has challnaged high court judgement in time: I filed for revisional order to the same court within 5 days, but before I could serve the notice, I was released by my Employer. I could not proceed any further due to loss of sole income source. I proceeded with the matter after 4 months.  
 
Reply   
 
Dy Director

The author has already suffered at the hands of a lawyer who did not know service rules.

 
Reply   
 

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