Central Administrative Tribunal - Jabalpur
Ravi Kumar Amb vs M/O Railways on 11 April, 2018
1 OA No.201/00544/2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING: INDORE
Original Application No.201/00544/2015
Jabalpur, this Wednesday, the 11th day of April, 2018
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Ravi Kumar Amb,
S/o Late Shri Pushkar Raj Amb,
60 years,
Retired Chief Goods Supervisor
R/o 43 Scheme No.7
Neemach Cantt. (M.P.) 458441 -Applicant
(By Advocate -Shri P.J. Mehta)
Versus
1. Union of India,
Through Secretary
Ministry of Railways,
Rail Bhawan,
Raiseema Road
New Delhi 110001
2. The General Manager
Western Railway,
Head Office,
Churchgate
Mumbai 400029
3. The Divisional Railway Manager (P)
Divisional Office,
Do Batti
Ratlam 457001 - Respondents
(By Advocate -Shri P.K. Jain)
(Date of reserving the order:15.12.2017)
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2 OA No.201/00544/2015
ORDER
By Ramesh Singh Thakur, JM:-
This Original Application has been filed against the order dated 20.04.2011 issued by the respondent No.3 whereby application for voluntary retirement is rejected by the competent authority without informing the applicant. He is also aggrieved by the letter dated 12.01.2012 (Annexure A-1) whereby the respondent No.3 has directed the applicant to join his duty first only thereafter any decision would be taken in respect of his voluntary retirement.
2. The applicant in this Original Application has sought for the following reliefs:-
"8.1 It be held that the un-communicated order dated 20.04.2011 rejecting the application of voluntary retirement preferred by the applicant is void ab initio and be quashed.
8.2 It be held that the letter issued on 12.01.2012 after his retirement Annexure A/1, asking him to join duty, is void ab initio and be quashed.
8.3 The direction may kindly be given to Respondents to treat the applicant retired from 10.05.2011 and pay him pension and all retiral dues along with interest at current market rate from 10.05.2011.
8.4. Any other relief as deemed proper by this Hon'ble Tribunal and the costs of this O.A."Page 2 of 17 3 OA No.201/00544/2015
3. Precisely the case of the applicant is that the applicant was appointed Commercial Clerk in Western Railway on 16.05.1978. Thereafter he had been suffering from some problem in his legs but it become acute in 2011 and the applicant was not able to walk. The applicant submitted various medical certificates for Government Servants Recommended Leave or Extension of Leave or Commutation of Leave (Form No.3) and other medical certificates of Bansal Poly Clinic Indore to the Station Manager, Manglia (Annexure A/2). In 2006, the applicant was subjected to departmental enquiry but neither the show cause notice informing him the proposed punishment was given to him nor any order of punishment was ever served upon him.
4. The applicant due to his illness and family problem sought voluntary retirement on 10.02.2011 after giving three months notice which was to expire on 09.05.2011. When the respondent did not decide his application seeking voluntary retirement within notice period, the applicant preferred Original Application No.1016/2011 and the same was disposed of by this Tribunal on 22.11.2011 (Annexure A-3) with liberty to the applicant to prefer a fresh representation to that extent and respondents were directed to decide his representation within one month from the date of receipt of representation. Thereafter, the applicant preferred Execution Page 3 of 17 4 OA No.201/00544/2015 Application (M.A. No.164/2012) in Original Application No.1016/2011). The respondents filed the reply on 10.08.2012 (Annexure A-4) stating therein that applicant's said application was rejected on 20.04.2011 by the competent authority on the ground that inquiry for major misconduct against the applicant was pending. So, the execution application (MA No.164/2012) was withdrawn at 18.03.2013 (Annexure A-5) with liberty to file Original Application against the order dated 12.01.2012 (Annexure A/1). Thereafter the applicant preferred Original Application No.240/2013 which was disposed off on 07.05.2014 (Annexure A-
6) with a direction to the respondents that if any enquiry is pending it shall be commenced within the next two weeks and be completed within the next two months because the rejection of applicant's application for voluntary retirement was rejected on the ground of pendency of a departmental enquiry and respondents were not able to point out to this Court that which departmental enquiry was pending. The applicant thereafter filed the Civil Contempt Petition No.201/00041/2014 which was disposed off on 17.03.2015 (Annexure A-7).
5. The contention of the applicant is that till date no punishment has been awarded upon the applicant. The applicant has attained the age of superannuation on 30.06.2014. The main Page 4 of 17 5 OA No.201/00544/2015 ground of the applicant is that as per para vii of "Scheme of Voluntary Retirement for Railway Employees", Annexure R/3 annexed with Annexure A/4, to the effect that the Railway Servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice. It is specifically submitted that the order becomes effective only if it is communicated to the concern person. As per Para vii of the voluntary retirement scheme for Railway Employees, the voluntary retirement of the applicant became effective as per the terms of the notice. So, the applicant stood voluntary retired w.e.f. 10.05.2011. The applicant has further made the contention that the applicant has retired as per provisions of the voluntary retirement scheme introduced by the respondents but he has not been paid his retrial dues and pension w.e.f. 10.05.2011.
6. The respondents have filed their reply. In the preliminary objection, the replying respondents have submitted that the applicant was served major charge sheet on 30.01.2006 for unauthorized absence from 07.06.2005 to 31.12.2005 and disciplinary enquiry was pending till 02.01.2012. During the pendency of this disciplinary enquiry, the applicant applied for voluntary retirement through Station Manager, Mangilya vide his Page 5 of 17 6 OA No.201/00544/2015 application dated 10.02.2011. This application for voluntary retirement was rejected due to pendency of above disciplinary enquiry and rejection was communicated through the same Station Manager vide letter dated 12.03.2011 (Annexure R/1). The applicant asked about the decision of the respondents on his application for voluntary retirement through the Union. The replying respondents vide letter dated 20.04.2011 (Annexure R/2) informed to the applicant through the same Union regarding rejection of his application. The intimation was again sent to the applicant through Station Manager Mangliya through letter dated 23.09.2011. It has been further submitted by the replying respondents that order of rejection of application was later on sent to his unit in-charge on 23.09.2011 (Annexure R/3). So, during the pendency for major misconduct the application for voluntary retirement cannot be accepted. It has been further specifically submitted by the replying respondents that the applicant has suppressed the fact of rejection of application for voluntary retirement before filing of OA No.1016/2011 and the applicant has fraudulently obtained the order for consideration of representation from this Court. Since the application for voluntary retirement was rejected prior to filing of O.A. No.1016/2011 on 20.11.2011 and in the said O.A. praying for issuance of formal voluntary retirement Page 6 of 17 7 OA No.201/00544/2015 was not maintainable. So order Annexure A-3 was null and void being obtained fraudulently. It has been further submitted by the replying respondents that the report of enquiry officer in Form 5 was sent by the disciplinary authority to the applicant and the applicant has submitted representation dated 17.08.2011 (Annexure R/6) and has requested to drop the department proceedings pending against him, which shows that the pendency of departmental proceedings till 17.08.2011 was within the knowledge of the applicant. The applicant has not challenged the validity of the impugned rejection order in the present Original Application. It was further submitted by the respondents that the applicant was punished with "reduction of same time scale of pay by four stages below for a period of two years effecting with future effect of seniority and increment" and accordingly his retirement dues were paid. Copy of NIP dated 02.01.2012 was sent to the applicant at his duty place on 04.01.2012 and also his available residential address by the Registered office and the same was returned undelivered with remarks of Post Office that "person has left" (Annexure R/7). Resultantly, the replying respondents submitted that Original Application is liable to be dismissed.
7. The applicant has also filed the rejoinder. The applicant has submitted that the application for voluntary retirement scheme was Page 7 of 17 8 OA No.201/00544/2015 rejected due to pendency of disciplinary enquiry and rejection was communicated through the same Station Master vide letter dated 12.03.2011 (Annexure R/1) and vide letter dated 20.04.2011 (Annexure R/2). The applicant was informed through Union regarding rejection of application. It was again sent to the applicant through Station Master, Mangaliya vide letter dated 23.09.2011 (Annexure R-3). Ultimately as per Annexure A/4 the application for voluntary retirement was rejected. It has been submitted by the applicant that Annexure R/1 and Annexure R/3 are internal departmental correspondence within the Division and Annexure R/2 is a letter to a third party which has no business with the applicant's voluntary retirement. So it is submitted by the applicant that in case of rejection of application for voluntary retirement the communication of rejection letter is not as per scheme of voluntary retirement, and as such the applicant has not been communicated within the prescribed period. Further the respondents have failed to produce any order issued by the competent authority rejecting the applicant's application for voluntary retirement before effective date as per application of the applicant. Regarding pending departmental enquiry, the applicant has relied upon the Railway Board's circular dated 03.04.1986 issued by Government of India to complete the departmental enquiry in 150 days but in the present Page 8 of 17 9 OA No.201/00544/2015 case the applicant has not been served with the charge sheet on 30.01.2006 which was made pending till 02.01.2012, the circular is annexed at Annexure A-8.
8. We have heard the learned counsel for both the parties and have also gone through the pleadings and documents annexed therewith.
9. It is admitted fact that the applicant was appointed as Commercial Clerk in Western Railway on 16.05.1978. It is also admitted by both the parties that the applicant has sought for the voluntary retirement on 10.02.2011 after giving three months notice which was to expire on 09.05.2011. Thereafter when the respondents do not decide the application regarding the voluntary retirement within notice period, the applicant had preferred Original Application No.1016/2011. The said Original Application was disposed off on 22.11.2011 with the liberty to the applicant to prefer fresh representation to that extent and respondents were directed to decide his representation within one month from the date of receipt of representation.
10. The applicant has also preferred Execution Application (M.A. No.164/2012) in Original Application No.1016/2011. The respondents have filed their reply on 10.08.2012 (Annexure A-4) stating therein that applicant's said application was rejected on Page 9 of 17 10 OA No.201/00544/2015 20.04.2011 by the competent authority on the ground that inquiry for major misconduct against the applicant was pending. Now, vide letter dated 12.01.2012 (Annexure A-1) the respondent No.3 has directed the applicant to join his duties first and thereafter his application for voluntary retirement shall be considered. This document was annexed to the execution application. Resultantly, the applicant has withdrawn the execution application (MA No.164/2012) on 18.03.2013 (Annexure A-5) with liberty to file a fresh Original Application against the order dated 12.01.2012.
11. The main contention of the applicant is that he has preferred application for voluntary retirement on 10.02.2011 and three months notice was given to the respondents which were to be expired on 09.05.2011. As per Annexure A-4 which is the reply of application for execution by the respondents, in Para 2 it has been specifically submitted by the replying respondents that the application dated 10.02.2011 for voluntary retirement was rejected on 20.04.2011 by the competent authority on the ground that inquiry for major misconduct against the applicant was pending. So as per applicant the application for voluntary retirement was rejected on 20.04.2011 but the same was never intimated /informed to the applicant. As per reply filed by the respondents in the instant Original Application, it has been specifically submitted that his Page 10 of 17 11 OA No.201/00544/2015 application for voluntary retirement was rejected due to pendency of disciplinary enquiry and rejection was communicated through the Station Manager, Mangilya vide letter dated 12.03.2011 (Annexure R-1). The respondents again vide letter dated 20.04.2011 informed to the applicant through the same Union regarding rejection of application (Annexure R-2). Thereafter, the order of rejection of application for voluntary retirement was later on sent to his unit in-charge on 23.09.2011 (Annexure R/3). So it is clear from the reply of the respondents itself that the applicant was not informed regarding the rejection of the application for voluntary retirement. If the Annexure R/2 is minutely seen, the main letter has been addressed to Union and the copy has been sent to the applicant which is dated 20.04.2011. So far Annexure R/1 and R/3 is concerned, no copy has been annexed to the applicant. So from the documents itself it is clear that the applicant has sought for the voluntary retirement and three months prior notice was given to the respondent-department which is to be expired on 09.05.2011 and the applicant was never informed about the rejection of his application for voluntary retirement.
12. As per scheme of voluntary retirement for Railway employees dated 09.12.1977 (Annexure R/4), the relevant clause
2.(vii) is as under :-
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"2.(vii) A notice of voluntary retirement given after completion of 20 years' qualifying service or service in the case of those governed by SRPF (Contributory) Rules as the case may be, will require acceptance by the appointment authority if the date of retirement on the expiry of the notice would be earlier than the date on which the Railway servant concern could have retired voluntary under the existing rules/provision applicable to him (e.g. Rule 2046 (i) (FR.56(k)-R.II or para 2(2) of Section I of Railway Ministry's letter No.E.48 CPC/208 dt. 8-7-50 incorporated as para 620 of the Manual of Railway Pension Rules, 1950 or Rule 2046 (1)-R.II or any other similar rules. Such acceptance may be generally given in all cases except those
(a) in which disciplinary proceedings are pending or contemplated against the Railway servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case; or (b) in which prosecution is contemplated or may have been launched in a Court of Law against the railway servant concerned. If it is proposed to accept the notice of voluntary retirement even in such cases, approval of the Minister-in-charge should be obtained in regard to Group 'A' and Group 'B' Railway Servants and that of the General Managers in the case of Group 'C' and Group 'D' railway servants. Even where the notice of voluntary retirement given by a railway servant requires acceptance by the appointing authority, the railway servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice."
So, it is clear as per this scheme for voluntary retirement that the notice of voluntary retirement given by the railway servant requires acceptance by the appointing authority, the railway servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of Page 12 of 17 13 OA No.201/00544/2015 notice. So it is clear that the rejection letter passed by the respondent authority was never informed/communicated to the applicant.
13. The applicant has also placed reliance on the case decided by the Hon'ble Apex Court in the matter of Bachhittar Singh vs. State of Punjab 1962 LawSuit (SC) 196. The observation made by the Hon'ble Apex Court the relevant para 9 is as under:-
"9. The questions, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by cl. (1) of Art. 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As along as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.
14. The learned counsel for the applicant has also relied upon the judgment passed by the Hon'ble Apex Court in the matter of Union of India vs. Kartick Chandra Mandal 2010 LawSuit (SC) 11, wherein the Hon'ble Apex Court has observed as under:-
"13. The next issue that we are required to consider pertains to internal communications which are relied upon by the respondents and which were also referred to by the Tribunal as well as by the High Court. Ex facie, the aforesaid communications were exchanged between the officers at the level of board hierarchy only. An order would be deemed to be a Government order as and when it is Page 13 of 17 14 OA No.201/00544/2015 issued and publicized. Internal communications while processing a matter cannot be said to be orders issued by the competent authority unless they are issued in accordance with law. In this regard, reliance may be placed on the decision of this Court in State of Bihar and Others v. Kripalu Shankar and Others [(1987) 3 SCC 34] wherein this Court observed, in paragraphs 16 and 17, as follows: -
"16. Viewed in this light, can it be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation. The notings in a notes file do not have behind them the sanction of law as an effective order. It is only an expression of a feeling by the concerned officer on the subject under review. To examine whether contempt is committed or not, what has to be looked into is the ultimate order. A mere expression of a view in notes file cannot be the sole basis for action in contempt. Business of a State is not done by a single officer. It involves a complicated process. In a democratic set up, it is conducted through the agency of a large number of officers. That being so, the noting by one officer, will not afford a valid ground to initiate action in contempt. We have thus no hesitation to hold that the expression of opinion in notes file at different levels by concerned officers will not constitute criminal contempt. It would not, in our view, constitute civil contempt either for the same reason as above since mere expression of a view or suggestion will not bring it within the vice of sub- section (c) of Section 2 of the Contempt of Courts Act, 1971, which defines civil contempt. Expression of a view is only a part of the thinking process preceding Government action.
17. In the case of Bachhittar Singh v. State of Punjab a Constitution Bench of this Court had to consider the effect of an order passed by a Minister on a file, which order was not communicated. This Court, relying upon Article 166(1) of the Constitution, held that the order of the Revenue Minister, PEPSU could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by the said article and was then communicated to the party concerned. This is how Page 14 of 17 15 OA No.201/00544/2015 this Court dealt with the effect of the noting by a Minister on the file:
"The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.""
Besides, the said communications were exchanged after disposal of the Original Application by the Tribunal. The note on which reliance has been placed by the High Court specifically, was written by the Deputy Director, Headquarters for Director General, Ordnance Factories dated 20.11.1997 and it refers to the orders passed by the Tribunal as also the order passed in the contempt petition. From a bare perusal of the note it transpires that it was prepared on a representation of Shri K.C. Mondal, respondent no. 1 herein, and was submitted to the Ministry of Defence requesting to consider his case for recruitment/absorption/regularisation of services of casual workers in Group `D' post. That itself indicates that the proper and competent authority to pass an order for recruitment, absorption and regularisation was the Ministry of Defence and not the Director General, Ordnance Factory. In the said note itself it was clearly mentioned that an early action in the matter was requested, which means that the said order was not the official communication which was issued from the Ordnance Factory Board and that the Director General, Ordnance Factory was himself not the competent authority to pass an order regarding absorption, recruitment and regularisation of service of the respondents. In the said note it was further Page 15 of 17 16 OA No.201/00544/2015 stated that the Ministry of Defence may pass necessary orders to allow regularisation of the services of Shri K.C. Mondal and Shri S.K. Chakraborty in terms of the aforesaid office memorandum dated 07.05.1985 or to accord permission to recruit Shri K.C. Mondal and Shri S.K. Chakraborty for the post of Peon without reference to the Employment Exchange in relaxation of ban. The note of the Legal Adviser culminated in the aforesaid note of the Deputy Director which clearly indicates that no official order was passed by the competent authority and therefore issuing directions to the appellants to absorb the respondents on the basis of the same was unjustified and uncalled for.
15. In the rejoinder of the applicant it has also specifically submitted that the applicant was never informed regarding the rejection of his application for voluntary retirement. Regarding the Annexure R/7, the counsel for the applicant has mentioned that the Registry of registered letter along with AD was done at Ratlam on 25.06.2014 and the same was returned by the Postman posted at Neemuch on very next date i.e.26.06.2014. But there is a seal of Western Railway which carries the date 30.06.2016, so the fact regarding sending of rejection letter vide Annexure R/7 is not acceptable. As per Annexure A-1 the applicant has been directed to join duty and thereafter the applicant for voluntary retirement shall be considered. So, Annexure A-1 is itself contrary.
16. In view of the observation (supra), the application for voluntary retirement is presumed to be accepted in view of the Page 16 of 17 17 OA No.201/00544/2015 clause 2(vii)(i) of the Scheme of voluntary retirement w.e.f.09.05.2011.
17. Resultantly, this Original Application is allowed, the un- communicated order dated 20.04.2011 is quashed and set aside and the letter dated 12.01.2012 (Annexure A-1) is void ab initio and is quashed. Respondents are directed to treat the applicant retired from 10.05.2011 and pay him all consequential benefits within 60 days from the date of receipt of certified copy of this order. No order for costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
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