Central Administrative Tribunal - Delhi
R. D. Bohet vs Government Of Nct Of Delhi on 3 October, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.3775/2012 Order Reserved on: 29.07.2013 Order pronounced on 03.10.2013 Honble Shri V. Ajay Kumar, Member (J) Honble Shri Shekhar Agarwal, Member (A) R. D. Bohet S/o Shri Bhoop Singh Bohet Aged about 59 years R/o Quarter No.B-5, Officers Colony Central Jail, Tihar Complex New Delhi 110 064. . Applicant (By Advocate: Shri Nilansh Gaur) Versus Government of NCT of Delhi Through its Chief Secretary Delhi Sachivalaya I.P.Estate New Delhi 110 002. Director General of Prisons Prisons Headquarters Tihar, Janakpuri New Delhi. Respondents (By Advocate: Sh. Vijay Pandita) O R D E R By V. Ajay Kumar, Member (J):
Questioning the Order dated 26.10.2012 of the respondents in rejecting the request of the applicant for voluntary retirement under Rule 48 of the CCS (Pension) Rules, 1972, the present OA has been filed.
2. The admitted facts, in brief, are that while the applicant was working as Deputy Superintendent Grade-I in Tihar Jail, New Delhi, the respondents vide Order dated 26.09.2005 dismissed him from service, by dispensing with the inquiry proceedings, as an offence was registered against him vide FIR No.25/2005 under Prevention of Corruption Act, 1988, in connection with a sting operation conducted by Aajtak T.V.Channel. However, the said dismissal Order was set aside by this Tribunal in OA No.778/2006 dated 24.11.2006 which was upheld by the Honble High Court as well as by the Supreme Court. Consequently, the applicant was reinstated in service w.e.f. 21.01.2011, and the intervening period of dismissal from 26.09.2005 to 21.01.2011 has been treated as deemed suspension vide Order dated 30.09.2011 (Annexure A2). The applicant was discharged from the criminal proceedings for want of any incriminating evidence by the concerned criminal court.
3. As the applicant suffered with a paralytic stroke, he became immobile and medically unfit for discharging the duties on active basis, and as he has completed the 30 years qualifying service, applied for voluntary retirement, under Rule 48 of CCS (Pension) Rules, 1972 vide his letter dated 07.08.2012. He further requested in the said letter that the notice period of three months may be curtailed and permit him to retire voluntarily on immediate basis. The respondents vide the impugned order dated 26.10.2012 rejected the said request of the applicant due to pendency of the disciplinary proceedings against him and that an inquiry under Rule 14 of the CCS (CCA) Rules, 1965 is contemplated, and the draft chargesheet is in the process of sending to the Directorate of Vigilance.
4. Shri Nilansh Gaur, the learned counsel for the applicant submits that the competent authority can withhold permission to allow the Government servant to exercise his right to retire voluntarily under Rule 48 of the CCS (Pension) Rules, 1972, only when the said Government servant is under suspension. He further submits that withholding of permission on the ground of pendency or contemplation of disciplinary proceedings is not permissible under the said Rule. He placed reliance on a Judgement of the Honble Apex Court in Union of India v. S.P.Singh, (2008) 5 SCC 438.
5. Per contra, Sh. Vijay Pandita, the learned counsel for the respondents, submits that the application of the applicant for voluntary retirement has been considered and rejected vide Order dated 26.10.2012 for want of vigilance clearance. He further submits that the request of the applicant to curtail the notice period under Rule 48(1-A) (a) was rejected by the competent authority by exercising its discretion under Rule 48(1-A)(b). As the respondents rejected the request of the applicant for voluntary retirement, he retired from service on superannuation w.e.f. 31.01.2013, and that the respondents have issued a Charge Memorandum dated 29.01.2013 to the applicant and the same was served on him on 30.01.2013, i.e., before the date of his retirement on superannuation, and that conducting the departmental inquiry is very much necessary in order to rule out the possibility of any motivated action in the sting operation. In these circumstances, he states that there is no illegality or infirmity in the order passed by the respondents.
6. Heard Shri Nilansh Gaur, learned counsel for the applicant and Shri Vijay Pandita, learned counsel for the respondents, and have been through the pleadings on record.
7. Rule 48 of the CCS (Pension) Rules, 1972 reads as follows:
48. Retirement on completion of 30 years' qualifying service (1) At any time after a Government servant has completed thirty years' qualifying service -
(a) he may retire from service, or
(b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension :
Provided that -
(a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and
(b) the appointing authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice :
Provided further that where the Government servant giving notice under clause (a) of the preceding proviso is under suspension, it shall be open to the appointing authority to withhold permission to such Government servant to retire under this rule :
Provided further that the provisions of clause (a) of this sub-rule shall not apply to a Government servant, including scientist or technical expert who is -
(i) on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes,
(ii) posted abroad in foreign based offices of the Ministries/Departments,
(iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.
1(1-A) (a) A Government servant referred to in clause (a) of the first proviso to sub-rule (1) may make a request in writing to the appointing authority to accept notice of less than three months giving reasons therefor.
(b) On receipt of a request under clause (a) the appointing authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.
(2) A Government servant, who has elected to retire under this rule and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority :
Provided that the request for withdrawal shall be within the intended date of his retirement.
(3) For the purpose of this rule the expression 'appointing authority' shall mean the authority which is competent to make appointments to the service or post from which the Government servant retires.
8. The Judgement in S.P.Singhs case (supra), on which the applicant placed reliance, is not applicable to the facts of the present case, as the applicant therein was, in fact, placed under suspension on the relevant date but the said order was not validly communicated to him, which is not the case in the present OA.
9. Admittedly, the applicant has completed the qualifying service of 30 years in terms of the aforesaid Rule. Further, admittedly, he was not under suspension either on the date of his application for voluntary retirement, i.e., on 07.08.2012 or during the three months notice period, which expires on 07.11.2012.
10. Though the Government can refuse to curtail the notice period of three months, on merits, and if it is satisfied that the curtailment will cause any administrative inconvenience, but it cannot reject the request of the delinquent official for voluntary retirement on any ground other than what is mentioned in Rule 48 itself. When a Government servant fulfils all the other requirements under Rule 48, the Government cannot withhold its permission except when the Government servant is under suspension, in terms of the proviso to Rule 48(1)(a).
11. In view of the fact that the applicant was not under suspension and since the respondents failed to show any other provision empowering them to withhold the permission to the applicant to retire, other than the Proviso to Rule 48(1)(a), the applicant is entitled for the declaration that he had voluntarily retired from service w.e.f. 07.11.2012, i.e., w.e.f. the expiry of three months notice period.
12. In the similar circumstance, a Coordinate Bench of this Tribunal at Ahmedabad in Shri Rasikgar K. Goswami v. Union of India & Others (OA No.100/2011, decided on 20.07.2011), held as follows:
6 In view of the above discussion, we are of the considered opinion that the respondents could not have rejected the applicants request for voluntary retirement as the applicant had given three months notice and he had also completed more than 30 years of qualifying service. Contemplated disciplinary proceedings is not a legally valid ground for rejecting the request for voluntary retirement under Rule 48 of CCS Pension Rules.
7. For the reasons stated above, OA is allowed. The impugned communications dated 10.3.2011 and 14.3.2011 (A/1 and A/2) are quashed and set aside. The applicant shall be deemed to have voluntarily retired with effect 15.3.2011. The respondents are directed to extend consequential benefits arising out of the voluntary retirement in accordance with rules within a period of three months from the date of receipt of copy of this order.
13. In these circumstances, and for the aforesaid reasons, the O.A. is allowed and the Annexure A1 dated 26.10.2012 is quashed. The respondents are directed to treat the applicant retired voluntarily from service w.e.f. 07.11.2012 and to grant him all the consequential benefits. Though, after the request of the applicant for Voluntary Retirement was rejected on 26.10.2012 and after the present OA is filed on 07.11.2012, the respondents issued Charge Memorandum dated 29/30.01.2013, the applicant neither questioned the same nor pleaded any thing about its validity, and hence, no opinion on the same is expressed. No order as to costs.
(Shekhar Agarwal) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/