1984 PLP 832 (PLC(CS))

Syed Noor Ahmad for Respondents. Date of hearing : 4th September, 1983. The appeal captioned above emanates from the decision, dated 27th March, 1982 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, where the grievance petition of the appellant for setting aside the order, dated 12th August, 1979 passed by respondent No. 2 and for issuing direction to respondent No. 3 to withdraw his order, dated 25th June, 1979 was dismissed.

2. The facts are that the appellant gave on 6th June, 1979 three months' notice of retirement on the ground of domestic troubles. He had completed 25 years' qualifying service for retirement. The application was accepted, vide order dated 25th June, 1979 copy of which is Exh. P-1. He on 28th July, 1979 applied for the withdrawal of his three months' notice of retirement on the ground :hat his domestic troubles had come to an end. This application was recommended and forwarded by respon dent No. 3 the appointing authority to respondent No. 2 but the latter rejected the same vide order, dated 12th August, 1979 copy Exh. P-5. The appellant made second application, copy Exh. P-2, to respondent No. 1, which was accepted on 19th August, 1979. This order was not imple mented by respondent No. 2 and consequently the appellant was retired on the expiry of three months' notice. 3- Admittedly, respondent No. 3 was the appointing authority and respondent No. 2 next higher authority. It has not been shown by the appellant that respondent No. 1 had any say in the matter. .He has not based his case on the basis of the order passed by respondent No.

1. His prayer is that the order of respondent No. 2, dated 12th August. 1979 be set aside and direction be issued to respondent No. 3 withdraw the retirement order. dated 25th June, 1979.

4. It has not been argued by the learned counsel for the appellant that under section 21 of the General Clauses Act, respondent No. 3 is competent to withdraw his order dated 25th Juue, 1979 and has supported his argument by citing P L D 1969 S C 407 and 1981 S C M R

604. What actually has been held in the two rulings is that where an order has not taken effect, it can be withdrawn under the rule of locus poenitentiae. But it does not mean that it should be withdrawn. If an order has not taken legal effect, it may be withdrawn. So far as the former ruling is concerned, pay had been fixed by the President at Rs. 1,000 p. m. and the order had been endorsed to the concerned authority as well as the employee concerned. So, it had taken legal effect. It was, therefore, held that it could not be afterwards withdrawn. The facts of 1981 S C M R 604 are that auction of leasehold was made but it was cancelled before it was confirmed, documents executed and permission delivered. It was, therefore, held that the auction was rightly set aside. In the present case the order of accepting the petition for premature retirement after service of 25 years was duly communicated to the concerned authority and to the appellant. It was clearly directed in the order that retirement would take place on the expiry of three months' notice given by the appellant.

5. The other thing is that every case is to be decided according to it own facts and circumstances. The reasons for which premature retirement was sought and the reasons for which withdrawal of the request of retire ment were domestic troubles. In the present case the appellant did not B disclose the grounds. He in his application said that due to domestic troubles, he wanted to retire and in his application for withdrawal of the said request he simply said that his domestic troubles had come to a end. The troubles were not disclosed. But the applications were vague. If there are sufficient grounds for withdrawal of the request of retirement, of course, it may be accepted. The facts of case from which 1973 P L C 75 arose were that the Police Officer concerned was advised by the doctor to leave service to save his eye sight. So, he applied for premature retire ment. When he in connection with the treatment of the disease consulted the specialist, he was told that there was no serious defect and that he could continue in service. He, therefore, applied for withdrawal of his application for retirement. Apart from it in the said case there was no rule debarring the withdrawal of request of premature retirement but there was a different instruction in the shape of a paragraph 8 which was held to be having no force of a rule. But in the present case there is rule 801 (b) of Personnel Manual, Volume I which expressly debars the employee to IC withdraw the request of premature retirement. So unless a strong case for withdrawal of request of retirement is made, an order passed cannot be sought to be withdrawn. Almost same kind of view was taken in P L D 1979SC835.

6. It has also been argued that a retrenched rule has no binding force. The personal files of the employees namely Pessonnel Manual, Volume I were caused to be produced before the learned lower Court. The said employee had been allowed to withdraw their request of premature retirement. Unfortunately, the copies of the applications for retirement, for withdrawal of request of retirement and of the relevant order passed thereon were not produced in this case, therefore, facts and circumstances are unknown. If there were sufficient grounds as in case of 1973 P L C 75, it would not be said that the rule 801 (b) was not enforced. So the two rulings relied upon by the appellant cannot be used for holding that rule 801 (b) of Personnel Manual Volume-I is a retrenched rule. The learned trial Judge, therefore, rightly dismissed the grievance petition of the appellant.

7. As upshot of the observations made above, i do not find any force in the appeal and dismiss the same. A. E. Appeal dismissed.