Abdul Jabbar Mir vs Union Territory Of J&K And Others on 16 September, 2022

[Cites 5, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Abdul Jabbar Mir vs Union Territory Of J&K And Others on 16 September, 2022

1. The petitioner is aggrieved of and has challenged Academy Order No.06 of 2021 dated 26th August, 2021 in terms whereof the petitioner, an accountant in Jammu & Kashmir Academy of Art, Culture and Languages (JKAACL) was relieved from the service of the Academy with immediate effect on provisional pension with payment of leave salary. The payment of gratuity of the petitioner was, however, kept on hold till conclusion of the departmental proceedings/enquiry, which the JKAACL contemplated to initiate against him separately.

2. Before adverting to the grounds of challenge pleaded and urged by the petitioner to assail the Academy Order No.06 of 2021 dated 26 th August, 2021 [" impugned order"], it is necessary to set out few material facts. 2 WP(C) No.1241/2022

The petitioner, an accountant, serving in the Divisional Office of the JKAACL at Srinagar submitted an application on 24 th September, 2018 for voluntary retirement w.e.f. 30th April, 2019. The request of the petitioner for voluntary retirement was processed by the JKAACL at different levels. Vigilance clearance was obtained by the JKAACL from the concerned quarter and the process was completed in February, 2019. While the competent authority in the JKAACL was yet to take a final decision on the request of the petitioner for voluntary retirement from service w.e.f. 30 th April, 2019, the intended date of retirement was over. The petitioner made another application to JKAACL for giving effect to his voluntary retirement from 31st July, 2019. The petitioner did not stop here and taking the benefit of inaction on part of the JKAACL to pass final orders on his two requests made earlier, the petitioner renewed his request by way of 3 rd application submitted on 19th November, 2019 seeking his voluntary retirement from service w.e.f. 29th February, 2020.

3. As is apparent from the documents on record, no formal order of acceptance or refusal of the request of the petitioner for voluntary retirement was made by the competent authority in JKAACL. The petitioner continued in service. It was only when the Secretary of JKAACL suddenly found that the petitioner as per his request stood voluntarily retired automatically w.e.f. 30th April, 2019 and had, thus, overstayed in service beyond the said date. He contemplated an enquiry against the petitioner for his unauthorized overstay in service and by way of impugned order relieved the petitioner from the service of JKAACL with immediate effect on provisional pension 3 WP(C) No.1241/2022 with payment of leave salary. It is this order, which the petitioner has called in question in the instant petition.

4. The impugned order is assailed primarily on the ground that, though, it ensued serious civil consequences to the petitioner, yet it was passed without providing the petitioner any opportunity of being heard. The short and precise submission made by the learned counsel for the petitioner to sustain challenge to the order impugned is that the voluntary retirement does not take effect from the date intended in the notice of voluntary retirement or any other date till it is formally accepted by the employer. It is contended that respondent No.3 has wrongly assumed that the voluntary retirement of the petitioner became effective from 30th April, 2019 i.e. the intended date given by the petitioner in the written request and, therefore, services rendered to the Academy after such date are unauthorized and is tantamount to overstayal in service.

5. On being put on notice, respondent Nos. 1 to 4 have filed their objections. The challenge laid by the petitioner to the order impugned is contested on the strength of Note 7 to Article 230 of the Jammu & Kashmir Civil Service Regulations Vol. 1, which, as per the respondents is applicable to the employees of JKAACL working at different levels. It is submitted that the petitioner had made a written application for voluntary retirement with 30th April, 2019 as intended date of retirement and, therefore, should be deemed to have been retired from such date even if there is no formal acceptance of the request of the petitioner by the competent authority. On this assumption, the respondents have passed the impugned order and 4 WP(C) No.1241/2022 treated the services of the petitioner beyond 30th April, 2019 as unauthorized amounting to overstayal in service. The respondents have, thus, justified the relieving of the petitioner from service of JKAACL and keeping his gratuity on hold till conclusion of the enquiry to be initiated against the petitioner separately.

6. Heard learned counsel for the parties and perused the material on record.

7. The JKAACL is a society registered under the Societies Registration Act, 1860 with its own Memorandum of Association, Rules and Regulations. In terms of Rule 27(1), in regard to all matters governing the service conditions, conduct and discipline of the employees of the Society, the provisions of J&K Civil Service Regulations, J&K Employees (Conduct) Rules, J&K Civil Services (Classification, Control and Appeal) Rules and other rules and orders applicable to the Union Territory Civil Services in general are applicable. By operation of Rule 27 (1) of the Rules and Regulations of the Academy, Article 230 of J&K Civil Service Regulations, 1956 ["CSR"] would regulate the voluntary retirement of the employees of JKAACL as well. This position is not disputed rather it is affirmed by the JKAACL in the order impugned as also in the reply affidavit filed in the writ petition.

8. Regard being had to the admitted facts on record and the rival contention of the parties, the two issues require determination in this petition :-

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(i) "whether voluntary retirement requested by an employee from a particular date comes into effect from such date even if the same is not accepted by the competent authority?

(ii) "whether the services rendered by an employee beyond the intended date of his voluntary retirement can be treated as overstayal in service calling for departmental enquiry against such employee?

9. Resignation in relation to an office is an act of giving up or relinquishing the office. To constitute a complete and operative resignation, there must be intention to relinquish the office and concomitant act of giving up. The act of giving up or relinquishment may be unilateral or bilateral. If the act is unilateral, the resignation takes effect from the intended date of relinquishment of office. In such an event, the authority, who is communicated the act of relinquishment of office, is not required to take any action and the relinquishment takes effect with immediate effect where resignation is intended to operate in pracsenti. And in case of a resignation intended to take effect on future date, in that event it will come into effect on the date indicated therein. However, in cases where act of relinquishment of office is bilateral in character, the communication of intention to relinquish, by itself, would not be sufficient to result in ceasation of relationship of master and servant and some action is required to be taken on such request of relinquishment of office made by the employee. In such cases, the resignation nor relinquishment of office does not become effective till such action is taken. As to whether an act of relinquishment or 6 WP(C) No.1241/2022 resignation is unilateral or bilateral in character would depend upon the nature of office and the conditions governing it. (See Moti Ram v. Param Dev and anr, (1993) 2 SCC 725).

10. Admittedly, the petitioner, in terms of Article 230 of CSR submitted his application to the Secretary of JKAACL on 24th September, 2018 giving his intended date of voluntary retirement as 30th April, 2019. The petitioner, as is claimed by him in his application, was having qualifying service of 35 years, 05 months and 12 days as on 30 th April, 2019. The application was processed at different levels in JKAACL. On the request of JKAACL, the General Administration Department (Vigilance Section), Civil Secretariat vide O.M. No.GAD(Vig)49-NOC/2018-Culture dated 05-02-2019 conveyed to JKAACL that there was no preliminary enquiry or FIR pending against the petitioner. With the completion of all requisite formalities and on the receipt of NOC from Vigilance Section of General Administration Department, the decks were all cleared for the competent authority in JKAACL to take a final decision on the request of the petitioner. However, for the reasons which are not coming forth from the record as well as the reply affidavit of the respondents, no such decision was taken. The petitioner was, as it seems, hard pressed for voluntary retirement. He shot- up a sort of reminder to the respondents on 16th May, 2019 requesting the respondents-Academy to expedite his request and grant him voluntary retirement w.e.f. 31st July, 2019.

11. Obviously, earlier intended date i.e. 30th April, 2019 had passed and the JKAACL had not conveyed any decision on his request to the petitioner. 7 WP(C) No.1241/2022 Nothing happened this time as well. The petitioner made third application on 19th November, 2019 with a request to consider his voluntary retirement w.e.f. 29th February, 2020. This again was not considered and no order accepting or rejecting his offer was conveyed to the petitioner. As a matter of fact, the JKAACL never took any decision with regard to the request of the petitioner for voluntary retirement made in the year 2018 and reiterated twice in the year 2019. It appears that fed-up with the repeated requests of the petitioner, the respondents decided to examine his case for voluntary retirement and found that the first request made by the petitioner for his voluntary retirement on 24th September, 2018 with an intended date of retirement as 30th April, 2019 had taken effect automatically and, therefore, the petitioner had been continued in service beyond his intended date of retirement unauthorisedly. A case of overstayal in service was set up against the petitioner and he was relieved from service of the Academy w.e.f. 26 th August, 2021 i.e. the date of impugned order, whereas the petitioner was to retire on superannuation w.e.f. 31st January, 2022.

12. Article 230 of the CSR clearly provides that a government servant may voluntarily retire from service any time after completing 20 years/40 completed six monthly period of qualifying service or 45 years of age. In such case, the concerned employee is required to give a notice of his intention to the appointing authority at least three months before the date on which he wants to retire. If, in the opinion of the appointing authority, such officer has a clean record, he shall be granted five years addition to the qualifying service, as may have been put in by him on the intended date of 8 WP(C) No.1241/2022 retirement. Where in any such case addition in qualifying service is granted, pensionary benefits will be calculated on the basis of service as he would have put in had he retired at the normal age of superannuation or the service put in including five years addition whichever may be earlier.

13. Article 230 of the CSR and Notes 1, 2 and 7 appended thereto which are relevant for determination of the questions that have arisen in this petition, and set out below :-

" 230. Retiring pension- explanation.

(i) A Government servant including the one listed in Schedule II of these rules may voluntarily retire from service any time after completing 20 years/40 completed six monthly periods of qualifying service or 45 years of age, provided that he shall give in this behalf a notice in writing to the appointing authority at least 3 months before the date on which he wants to retire. Such an officer shall be granted five years addition to the qualifying service as may have put in by him, on the date he wants to retire, provided that his past record of service has been clean in the opinion of the appointing authority.

Where in any such case addition in qualifying service is granted, pensionary benefits will be calculated on the basis of service as he would have put in had he retired at the normal age of superannuation (namely 55 years) or the service put in including five years addition whichever may be earlier.

Explanation.--In the case of Government servants (Class IV) (Refer Schedule II) who were in service on 10-10-1966, and retire voluntarily as such the term "normal superannuation age" referred to in clause (i) above means "60 years" and not "55 years."

(ii) Notwithstanding the provisions contained in Article 242 and Notes thereunder, pension and/or Death-cum-Retirement Gratuity etc. in respect of voluntarily retirements 5 [on or] after 1-4-1982 will be calculated on the assumed pay which the concerned would have drawn (in the scale held by him at the time of voluntary retirement) had he continued till the age of superannuation or for the service added to his qualifying service whichever be earlier. If in determining of the assumed pay there is an Efficiency Bar the same shall be deemed to have been crossed on the due date:

Provided further that the right conferred under this article shall not be available to an officer who has been placed under suspension/or against whom any enquiry or any investigation is pending or is contemplated on any charge of administrative or criminal nature.

"Provided further that the concession of treating a Government servant to have crossed the Efficiency Bar for calculation of his assumed pay shall not be available to a Government servant who has 9 WP(C) No.1241/2022 been held up at an Efficiency Bar because of his failure to pass an obligatory departmental examination or to undergo an obligatory course of training/instructions, and the same is attributable to his culpable negligence to prepare himself for such an examination or to his willful reluctance to undergo such course of training/ instructions as the case may be.

Note 1.- A Government servant who opts for voluntary retirement after twenty years qualifying service will not be permitted to retire under this Article until after the fact the Government servant has completed 20 years qualifying service has been verified in consultation with the Accountant General.

Note 2.- A Government servant who has elected to retire under this Article has been given necessary intimation to that effect to the competent authority shall be precluded for withdrawing his election subsequently except with the specific approval of the authority competent to fill the appointment, provided his request for withdrawal is made within the intended date of retirement and he is in a position to establish that there has been a material change in the circumstances in consideration of which the notice was originally given.

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Note 7.- The case of overstayal in service beyond the intended/elected date of voluntary retirement (except those covered under the provisions of Note 2 above) involving collusive or contrived motives on the part of the Head of Office or any other higher officer should be identified and suitable action (including recovery of excess payments made as a result of such overstayal) taken against such officers to arrest such irregularities."

14. From reading of Note-1, it is evident that a government servant who opts for voluntary retirement after twenty years qualifying service is not, as a matter of right, entitled to have his request accepted and the benefit underlying such voluntary retirement given to him. Such Government servant shall not be permitted to retire under Article 230 until claim of the Government servant of having completed twenty years qualifying service has been verified in consultation with the Accountant General. 10 WP(C) No.1241/2022

15. As is apparent from a reading of Note-2, a Government servant who has opted to retire under Article 230 and has given necessary intimation to that effect to the competent authority shall be precluded from withdrawing his option subsequently except with the specific approval of the authority competent to fill the appointment. This, however, is subject to the proviso that the request for withdrawal is made within the intended date of retirement and he is in a position to establish that there has been a material change in the circumstances in consideration of which the notice was originally given. It is, thus, evident that the right to withdraw the request given to the Government servant, who has submitted his application for voluntary retirement from a particular date, can be exercised within the intended date of retirement and that, too, with the specific approval of the appointing authority. The employee is also supposed to establish that he is withdrawing his notice of voluntary retirement due to material change in the circumstances in consideration of which notice was originally given. The Government servant is, however, precluded from withdrawing his election after the intended date of retirement.

16. Similarly, Note-7 provides that the case of overstayal in service beyond the intended/elected date of voluntary retirement (except those covered under the provisions of Note 2 above) involving collusive or contrived motive on the part of Head of Office or any other higher officer should be identified and suitable action (including recovery of excess payments) shall be taken against such officers to arrest such irregularities. 11 WP(C) No.1241/2022

17. From a conjoint reading of Note-1, 2 and 7, it becomes abundantly clear that a Government servant is not entitled, as a matter of right, to seek voluntary retirement from service. A person desirous of seeking voluntary retirement must fulfill prerequisites enumerated in Article 230 of CSR. The Government shall not permit such employee to retire under Article 230 CSR unless the claim of such Government servant of having completed twenty years qualifying service has been verified in consultation with the Accountant General. The Government servant, who elects to retire under Article 230 CSR with intended date of retirement cannot, as a matter of right, withdraw his request unless such request is made before the intended date of retirement and it meets the approval of the appointment authority. The appointing authority shall not accord such approval unless such employee establishes material change in circumstances in consideration of which he had originally given the notice of voluntary retirement. Every overstayal in service beyond the intended/elected date of retirement does not call for initiation of departmental enquiry. It is only where the overstayal in service of the government servant beyond the intended date of retirement is attributable to collusive or contrived motives on the part of the Head of Office or any other higher officer.

18. From a reading of Article 230 in its entirety, particularly in light of the notes reproduced above, it is abundantly clear that the relinquishment of office provided therein is bilateral in character and, therefore, voluntary retirement request made by a Government servant from a particular date does not take effect from such date unless the request of such employee is 12 WP(C) No.1241/2022 accepted by the employer. It is only when the employer after verifying the requisite years of qualifying service of the employee in consultation with the Accountant General and taking note of other facts and circumstances takes a formal decision accepting the request, the voluntary retirement would take effect from the intended date. Though, the intended date given in the application/notice of voluntary retirement is binding on the Government servant giving such notice and he would be precluded to withdraw his request for voluntary retirement after such intended date for any reason whatsoever.

19. As noted above, such employee is entitled to withdraw his request for voluntary retirement before the intended date but that has to be with the specific approval of the appointing authority and only after it is established that there has been change in circumstances in consideration of which original request for voluntary retirement had been given. Once the employer has not acted and has not passed any order formally accepting the request of the employee for voluntary retirement given in terms of Article 230 CSR, there is no question of such employee overstaying in service beyond the intended date. As is said and held hereinabove that the voluntary retirement would take effect from the intended/elected date provided the request of the employee for such voluntary retirement from such date is accepted by the employer. The request for voluntary retirement from a particular date made by a Government servant under Article 230 CSR is in the nature of offer and unless such offer is accepted by the employer, contractual relationship of an employee and employer would not come to an end, more so when there is 13 WP(C) No.1241/2022 no statutory provision providing for such cessation of relationship automatically from the intended/elected date of voluntary retirement.

20. From a reading of the entire Article 230 CSR in light of the notes appended thereto, it clearly emerges that voluntary retirement requested by an employee from a particular date shall take effect from such date only if same is accepted by the employer. An employee cannot, as a matter of right, claim his voluntary retirement on mere completion of qualifying service of twenty years or attaining the age of 45 years. He has only a right to make request to permit him to retire. There may be cases where employee asking for voluntary retirement is facing serious criminal charges or departmental enquiry for serious misconduct. In such situation, Article 230 CSR cannot be interpreted to concede a right in favour of the employee to submit an application for voluntary retirement from a particular date and leave the service honourably from such date. If this is permitted not only such employee would get away with all pensionary benefits including addition of five years qualifying service but he may also escape the disciplinary action if any pending against him. Such is not the intention of the Article 230 CSR. It is, because of this reason, there is a stipulation in Article 230 that a person seeking voluntary retirement is entitled to addition of five years qualifying service provided his past record of service has been clean in the opinion of the appointing authority.

21. In the light of discussion made above, the twin questions formulated for determination are answered as under:-

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(i) Voluntary retirement request is an act of giving up or relinquishment of office. It could either be unilateral or bilateral. As to whether this act of giving up of office or voluntary resignation is unilateral or bilateral in character would depend upon nature of office and the conditions governing it. In the cases where act of tendering voluntary retirement notice is unilateral, the resignation or relinquishment of office will take effect from the intended date of such resignation/relinquishment. In such eventuality, the employer is not required to take any action. The resignation will become effective from the intended date even if it is not formally or otherwise accepted by the employer. However, if, as per the rules governing the employee, the act of tendering request for voluntary retirement is bilateral, it would not become effective from the intended date unless it is accepted by the employer.

(ii) In case of unilateral act of voluntary retirement where the voluntary retirement comes into effect from the intended date automatically without its acceptance from the employer, the services rendered by such employee after intended date of relinquishment of office would be overstayal in service. As to how such overstayal would be dealt with shall depend on service Rules governing it. However, in the case where act of making voluntary retirement request is bilateral as per the Rules governing the employee, the request will not take effect 15 WP(C) No.1241/2022 unless it is accepted by the employer In such an event, the continuation of the employee in service beyond the intended date would not be tantamount to overstayal.

As discussed above, the act of submitting voluntary retirement request under Article 230 is bilateral in character and, therefore, unless the request of the employee seeking voluntary retirement is formally accepted by the employer, the relationship of employee-employer shall not come to end and, therefore, there is no question of such employee overstaying in service beyond the intended date of retirement.

22. The view which I have taken on the interpretation of Article 230 CSR is fortified by the judgment of Supreme court in the case of Himachal Pradesh Horticulture Produce Marketing & Processing Corporation v. Suman Behari Sharma, (1996) 4 SCC 84. Para 8 of the judgment reads thus:-

"8. Clause (2) of the Bye-law inter-alia provides for voluntary retirement from service of HPMC on completion of 25 years service or on attaining the age of 50 years whichever is earlier. The employee, however, has a right to make a request in that behalf and his request would become effective only if he is 'permitted' to retire. The words "may be......permitted at his request" clearly indicate that the said clause does not confer on the employee a right to retire on completion of either 25 years service or on attaining the age of 50 years. It confers on the employee a right to make a request to permit him to retire. Obviously, if request is not accepted and permission is not granted the employee will not able to retire as desired by him. Para (5) of the Bye-law is in the nature of an exception to para (2) and permits the employee who has not completed 25 years service or has attained 50 years of age to seek retirement if he has completed 20 years satisfactory service. He can do so by giving three months' notice in writing. The contention of the learned counsel for HPMC was that though Para 5 of the Bye-

law relaxes the conditions prescribed by Para 5 of the Bye-law relaxes the conditions prescribed by Para 2, the relaxation is only with respect to the period of service and attainment of age of 50 years and it cannot be read to mean that the requirement 16 WP(C) No.1241/2022 of permission is dispensed with. On the other hand, the learned counsel for the respondent submitted that as Para 5 opens with the words "Notwithstanding the provision under para 2" and the words "may be ........ permitted at his request" are absent that would mean that the employee has a right to retire after giving three months' notice and no acceptance of such a request is necessary. We cannot agree with the interpretation canvassed by learned counsel or the respondent. The Bye-law had to be read as a whole. Para 2 thereof confers a right on the employee to request for voluntary retirement on completion of 25 years service or on attaining the age of 50 years, but his desire would materialize only if he is permitted to retire and not otherwise. Ordinarily, in a matter like this an employee who has put in less number of years of service would not be on a better footing than the employee who has put in longer service. It could not have been the intention of the rule- making authority while framing para 5 of the Bye-law to confer on such an employee a better and a larger right to retire after giving three months' notice in writing. The words "seek retirement" in para 5 indicate that the right which is conferred by it is not the right to retire but a right to ask for retirement. The word "seek" implies a request by the employee and corresponding acceptance or permission by HPMC. Therefore, there cannot be automatic retirement or shaping of service relationship on expiry of three months period."

23. In the instant case, the petitioner had been constantly and persistently making requests to the respondents to accept his request for voluntary retirement and relieve him from the service of JKAACL. The case of the petitioner for voluntary retirement was processed, no objection from the Vigilance Section of General Administration Department was also obtained, yet no further progress in the matter was made. As is evident from the impugned order, the petitioner was formally relieved on 26th August, 2021 i.e. the date on which the impugned order was passed. The petitioner was otherwise due to retire on superannuation w.e.f. 31 st January, 2022. It is in these circumstances, this Court is of the firm view that instead of resorting to belated action in the matter, the respondents should have done well to allow the petitioner to complete his age of superannuation and retire him accordingly.

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24. Be that as it may, since the competent authority in JKAACL never accepted the request of the petitioner for voluntary retirement nor had it relieved the petitioner from service, the services rendered by the petitioner after the initial intended date of his voluntary retirement cannot, by any stretch of reasoning, be termed as overstayal in service. Absent the acceptance of his request of voluntary retirement, the petitioner was entitled to complete his service till 31st January, 2022. He has been illegally, arbitrarily and without any authority of law deprived of his services w.e.f. 27th August, 2021 till the date of his superannuation i.e. 31st January, 2022.

25. I am also in agreement with the learned counsel for the petitioner that the impugned order has visited the petitioner with serious civil consequences and, therefore, such order could not have been passed without holding enquiry in the matter and without providing a fair opportunity of being heard to the petitioner. The order, besides being not tenable on merits, is also vitiated being in violation of the principles of natural justice.

26. In view of the above, I find merit in this petition and the same is, accordingly, allowed. The order impugned dated 26th August, 2021 is set aside and quashed. The petitioner shall be deemed to be in continuous service of JKAACL upto the date of his superannuation i.e. 31st January, 2022 with all consequential benefits i.e. salary for the period w.e.f. 27 th August, 2021 to 31st January, 2022 and all post retiral benefits including withheld gratuity, as if the petitioner has formally retired on superannuation w.e.f. 31st January, 2022. The respondents-Academy to take immediate steps to settle petitioner's pension and also release the remaining post retiral 18 WP(C) No.1241/2022 benefits, if any, including withheld gratuity, within a period of two months from the date a copy of this judgment is served upon them.

(Sanjeev Kumar) Judge SRINAGAR 16.09.2022 Anil Raina, Addl. Reg/Secy Whether the order is reportable: Yes

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Jammu & Kashmir High Court - Srinagar Bench