Central Administrative Tribunal - Delhi
Kukkikatte Krishnamurthy vs Union Of India Through on 25 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1228 of 2010 Misc. Application No.1347/2011 This the 25th day of November, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Kukkikatte Krishnamurthy S/o Kukkikatte Gopal Shanbogue, R/o # 38, Kamakshi Apartments, Sector 6, Dwarka, New Delhi 110075 last employed as: Joint General Manager, MPF, Ordnance Factory Board, Ambarnath. Applicant ( By Shri Rohit Rao, Advocate ) Versus 1. Union of India through Ordnance Factory Board, Ministry of Defence, 10-A, Shaheed Khudiram Bose Road, Kolkata-700001. 2. DGOF & chairman, Ordnance Factory Board, 10-A, Shaheed Khudiram Bose Road, Kolkata-700001. 3. Shri B. Pugazhendhi, Additional General Manager, Heavy Vehicles Factory, Avadi, Chennai. 4. Union of India represented by Shri Kuldip Singh, Under Secretary, Ministry of Defence, D(FY.I), Sena Bhawan, New Delhi-110011. Respondents ( By Shri V. S. R. Krishna, Advocate ) O R D E R Justice V. K. Bali, Chairman:
This original application was dismissed in default on 25.04.2011. Misc. application bearing MA No.1347/2011 came to be filed seeking restoration of the Application, in which notice was given on 06.05.2011. Even though there is no specific order passed in that regard, but the learned counsel representing the parties were given to understand that if the misc. application seeking restoration is allowed, arguments on merits would be heard on the same date. There is no opposition to the prayer made in the misc. application, and, therefore, order dated 25.04.2011 is recalled and the OA is restored to its original number. On consent, the main matter was taken on board and arguments heard on 22.11.2011 when judgment was reserved.
2. Kukkikatte Krishnamurthy, the applicant herein, an officer of the Indian Ordnance Factories Service of 1980 batch, sequel to a departmental enquiry held against him under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965), vide Presidential order dated 26.06.2009, has been removed from service. It appears, almost on the heels of the charge memo issued to him on 07.12.2005 for proceeding against him in a departmental enquiry, the applicant sought voluntary retirement on 21.08.2005, which request was rejected by the competent authority on 29.11.2005, in which order it has also been mentioned that a decision had been taken to initiate disciplinary proceedings against him for non-compliance with MoD/OFB direction. The applicant, as may appear from the order dated 26.06.2009, was put to departmental trial on charges that while functioning as Joint General Manager/MPF, Ambarnath, he had committed gross misconduct by willfully defying the directions of superior authority to report for duty at OFT/OFK after 31.12.2003; that he remained with ILO, Ministry of Labour beyond his extended period of deputation, i.e., 31.12.2003 without permission of the competent authority; and that he failed to maintain devotion to duty and conducted himself in a manner unbecoming of a Government servant in violation of rule 3(1)(ii) & (iii) of the CCS (Conduct) Rules, 1964. The facts as mentioned in the order aforesaid further reveal that the tenure of the applicant with ILO had expired on 31.12.2003, but he continued with the said organization without permission after expiry of his deputation period. In anticipation of his release from ILO, he was posted as Joint General Manager/OF Tiruchirapally (OFT) vide OFB order dated 10.12.2003 and was directed to get himself relieved from the ILO on completion of his deputation on 31.12.2003, with direction to report to the General Manager/OFT, but he would not abide by the said order and requested for another extension up to August, 2005, which request was considered but the same was not agreed to. It is further recited in the order that his representations maintaining that five years tenure would be permissible for foreign assignment in terms of DOP&T instructions, were rejected by observing that the duration prescribed therein is a ceiling which cannot be breached and is not in the nature of mandatory limit for which an officer has to be allowed by the cadre controlling authority, and further that approval of the cadre controlling authority is mandatorily required under the DOP&T instructions, and once such approval has not been granted, the officer concerned cannot flout the orders on the pretext that the competent authority has denied his extension due to wrong interpretation of rules. It is also mentioned in the order aforesaid that the applicant requested for voluntary retirement on 21.08.2005, which was duly considered by the competent authority, but the same was rejected and communicated to him vide OFB letters dated 29.11.2005 and 01.12.2005, as no rule for voluntary retirement would apply in case an officer is unauthorizedly absenting himself from duty. The applicant is stated to be not eligible for voluntary retirement, since he remained unauthorizedly absent without resuming duty at OFB since 31.12.2003. In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, in addition to the challenge to the order aforesaid and quashing of the enquiry proceedings, the applicant also seeks a declaration that he stood retired from service with effect from 31.11.2005.
3. At the very outset, we may mention that even though challenge is to the disciplinary proceedings and the final outcome thereof culminating into order of punishment as mentioned above, the learned counsel representing the applicant has concentrated only on the relief as regards automatic secession of the employer and employee relations w.e.f. 30.11.2005. That being so, there would be no need to unnecessarily burden the judgment with all such facts which may be relatable to the enquiry culminating into the order of punishment. That the controversy as raised in the present OA is limited, would also be made out from order dated 21.02.2011 and yet another order dated 27.05.2011, which came to be passed after hearing the arguments when judgment was reserved and when we required some clarifications. Both the orders aforesaid are reproduced hereinbelow:
Order dated 21.02.2011:
There is limited controversy involved in this case. The applicant sought voluntary retirement under Rule 48-A of the C.C.S. (Pension) Rules, 1972 on 21.08.2005, indicating period of expiry of three months, which would be 30.11.2005. It is the case of the applicant that no communication of rejection or acceptance of the request mentioned above has been received before that date. Counsel for respondents would contend that the order rejecting the request of the applicant was passed before expiry of three months as reflected in the record and communication thereof would not make any difference.
List again on 2.03.2011. Respondents will have the relevant records available with them as the same are not available today. Order dated 27.05.2011:
Arguments in this case were heard on 26.5.2011 when judgment was reserved. The only plea raised during the course of arguments in challenging the impugned order dated 26.6.2009 removing the applicant from service was that far before that, i.e., on 21.8.2005, the applicant had sought voluntary retirement, and no order thereon was passed for three months, nor even communicated to the applicant, and, therefore, the applicant would be deemed to have retired on expiry of a period of three months. This Tribunal was given to understand that even though, the order rejecting the request of the applicant for voluntary retirement may have been passed within three months, but the same was communicated later. The only discordant view between the parties was as regards communication of the order rejecting the request of the applicant for voluntary retirement. While, however, preparing the judgment, we find that whereas, the applicant had sought voluntary retirement on 21.8.2005, the same had been rejected on 29.11.2005, and as per the records produced by the applicant, communicated to him on the same date. It could well be the case of the respondents that the notice of the applicant for voluntary retirement dated 21.8.2005 was received later, and from the said date the order rejecting the request of voluntary retirement was within three months, but there is no clarity on this aspect of the matter. We also find from the counter reply filed on behalf of the respondents that rejection of the notice of voluntary retirement was conveyed to the applicant on 1.12.2005, even though it is also stated in the earlier paragraph that it was communicated to the applicant on the same day, i.e., 29.11.2005. This shall also need some explanation.
List the matter for re-hearing on 30.5.2011. Copy of this order be supplied to learned counsel for parties today itself. Pursuant to orders aforesaid, the respondents have filed an additional affidavit.
4. Insofar as the case of the applicant as regards deemed voluntary retirement as projected in the Application, is concerned, the same would reveal that the applicant had sent three months notice for voluntary retirement as contemplated under Rule 48-A of the CCS (Pension) Rules, 1972 (hereinafter to be referred as the Rules of 1972) on 21.08.2005. The notice period would lapse on 21.11.2005. It is the case of the applicant that no refusal was ever communicated to him, and thus, by operation of the proviso to sub-rule (2) of Rule 48-B of the Rules of 1972, his retirement would become effective from 30.11.2005, and as such the whole disciplinary proceedings, which commenced after his deemed retirement, would be a nullity. It is pleaded that the only response on the application for voluntary retirement was from the Director General of Ordnance Factories, who wrote a letter dated 01.12.2005 to the Director, ILO, mentioning the fact that the application of the applicant for voluntary retirement had not been accepted by the Ministry of Defence. The letter aforesaid, it is pleaded, was written after expiry of the notice period. If the period of three months contemplated under rule 48-A is to be reckoned from 21.08.2005, for the sake of argument, even then there has been no refusal that was communicated to the applicant, within the stipulated period, as the response to his request for voluntary retirement is dated 01.12.2005, whereas the notice period, if reckoned, for the sake of argument from 21.08.2005, would lapse on 30.11.2005. Contents of letter/notice dated 21.08.2005 seeking voluntary retirement read as follows:
I am an IOFS Officer of 1981 batch, presently working for International Labour Organization on UN deputation from August 2000.
I would be completing 24 years of service soon and I would like to avail voluntary retirement benefit and continue to work in ILO.
This may kindly be treated as notice for three months and I may kindly be granted voluntary retirement with effect from November 30, 2005.
The Indian Ordnance Factory Service provided me very outstanding opportunity for my career and personal development while I was working within the organization or on deputation outside. I would like to render my heard felt thanks to you and the organization which includes all my colleagues with whom I have worked directly or indirectly. It appears that the applicant has not placed on records the letter/notice dated 21.08.2005, and since the original records have been summoned by us, we have taken the said letter from the records.
5. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. As regards the averments made in the OA with regard to voluntary retirement of the applicant, it has inter alia been pleaded that the 1st respondents issued a letter dated 29.11.2005 by post, conveying that the competent authority had considered the application for voluntary retirement and had not accepted the same. It was also intimated that it had been decided to initiate disciplinary proceedings against the applicant for non-compliance of MoD/OFB directions. It is then pleaded that the competent authority had considered the application dated 21.08.2005 of the applicant seeking voluntary retirement and rejected the same, and that in view of the contemplated disciplinary action, it had also been decided to initiate disciplinary action against the applicant for non-compliance of MoD/OFB directions. The above decision, it is pleaded, had been communicated to the applicant vide OFB letter dated 01.12.2005. On the pleadings as referred to above, when the matter came up for hearing before us on an earlier occasion, it was urged that even though the order rejecting the request of the applicant for voluntary retirement may have been passed within the stipulated time, considering the request of the applicant in his letter dated 21.08.2005 that the voluntary retirement be accepted from 30.11.2005, the same was communicated beyond the period of three months. It is for that reason alone, as mentioned in the order reproduced aforesaid that we required clarification from the respondents, as during the course of arguments, we were told that the communication was also sent to the applicant within time, i.e., on the same day when the order was passed. In the additional affidavit that has now been filed pursuant to our orders referred to above, it has been stated that the application of the applicant dated 21.08.2005 was received in the office of the respondents on 02.09.2005, and that the same was considered by the appointing authority and the decision was communicated to the applicant vide OFB letter No.2984/A/G dated 29.11.2005. Copy of the letter dated 29.11.2005 and the proof of dispatch thereof has been annexed as Annexure R-2 (collectively) with the additional affidavit. Another letter of even number dated 01.12.2005 addressed to Director, ILO, New Delhi with copies endorsed to various officers stating that voluntary retirement notice of the applicant had not been accepted and that the applicant must be relieved immediately for reporting/joining at OF, Khameria, was also issued. Copy of the letter aforesaid has also been placed on records as Annexure R-3. Letter dated 29.11.2005 (Annexure R-2) addressed to the applicant with the subject Application for Voluntary Retirement reads as follows:
I am directed to refer to your application dated 21.8.2005 for voluntary retirement and to state that the Competent Authority has considered the said application and has not repeat not accepted the same. It has also been decided to initiate disciplinary action against you for non-compliance with MOD/OFB direction.
In view of the above, you are hereby directed to report to Ordnance Factory Khameria immediately. Placed on records is also copy of the dispatch register, and the entry at serial number 2 dated 29.11.2005 would reveal sending of letter No.2984/A/G to the applicant on the said date. Request of the applicant vide a detailed note dated 17.10.2005, came up before Director (P), who recorded the following note on the same date:
Ref note 101/anti.
The officer has applied for voluntary retirement on 21st August, 2005, with the request that the same shall be granted w.e.f. 30.11.2005.
Unless specifically refused, before 30.11.2005, the retirement shall become effective from the said date. We may seek approval of RRM rejecting the application for voluntary retirement.
In addition, we may write to DGOF to initiate action as per draft d.o. placed opposite.
Para 3 above put up for approval of RRM pl. On 19.10.2005, JS (OF) made the following note:
The proposal of OFB for acceptance of V.R. of Sri K. Krishnamurthy deserves to be rejected.
Submitted. The matter then came up before AS (DP) and Secretary (DP), when, it appears, proposal of JS (OF) was accepted. There is no manner of doubt nor is there any dispute as well that the order rejecting the voluntary retirement of the applicant came to be definitely passed on 29.11.2005, and from the additional affidavit dated 14.07.2005 filed pursuant to orders of the Tribunal as mentioned above, as also from the dispatch resister, it is absolutely clear that the order refusing voluntary retirement request was passed not only within the stipulated time, but it was communicated to the applicant as well. Learned counsel representing the applicant, on earlier occasion had, however, urged that there is manipulation of records, and it is for that reason that we have called for the records. We do not find any manipulation in the records whatsoever. Counsel for the applicant would also contend that assuming that the respondents had communicated refusal of the voluntary retirement request of the applicant and had sent it as well, but the applicant had not received it. In our view, when a letter is sent to an addressee at his known address, there is presumption that it has been received, which may be a rebuttable presumption, but it is the applicant who has to rebut the same. That apart, non-receipt by the applicant of the communication sent to him refusing his request for voluntary retirement may not be fatal. This Tribunal in OA No.1515/2006 in the matter of S. R. Goyal v Government of NCT of Delhi & others, decided on 07.11.2007, when even though rejection of voluntary retirement was sent to the place of posting of the applicant and the authorities thereat communicated it to him later in point of time, held that once the communication to the applicant was beyond the stipulated period, it would be a case of deemed acceptance of voluntary retirement. The said judgment has since been upset by a Division Bench of the Honble High Court of Delhi in two connected writ petitions bearing WP(C) No.146/2008 and 158/2008, vide order dated 30.05.2008. It has been held that it is the date of sending the communication which is important and it is not necessary that the communication should reach the Government servant within three months.
6. Before we may part with this order, we may reiterate that no arguments whatsoever have been raised as regards the order removing the applicant from service, even though, setting aside the said order would have been a natural corollary if the applicant was to be deemed to have voluntarily retired before such order came to be passed, and which is also the precise contention raised in the pleadings.
7. Finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/