Madras High Court
S.M.A. Mohamed Yusoof vs The Secretary To The Government Of Tamil ... on 8 February, 2006
Equivalent citations: (2006)1MLJ707
Author: N. Paul Vasanthakumar
Bench: N. Paul Vasanthakumar
ORDER N. Paul Vasanthakumar, J.
1. Petitioner seeks a direction to the respondents, to accept his notice dated 18.3.2002 for voluntary retirement; to relieve him of the service from the date of expiry of notice period of three months; and consequently to pay all pensionary benefits.
2. The brief facts as stated in the affidavit are as follows:
(a) Petitioner joined as Assistant Statistical Investigator on 28.4.1980 in the second respondent Office and was promoted as Statistical Inspector during December, 1981. In the year 1997, after obtaining No Objection Certificate from the respondents, petitioner joined in overseas employment at Jeddah in Saudi Arabia. The leave applied for by the petitioner was initially sanctioned for a period of two years by the first respondent in G.O.3D.No. 1, Planning and Development (ST3) Department, dated 10.3.1997 from 7.4.1997 to 6.4.1999. Thereafter petitioner applied for extension of leave for one more year from 7.4.1999 and then for a further period of three years from 7.4.2000. First respondent by G.O.2D.No. 2, Planning and Development (ST3) Department, dated 9.8.1999, sanctioned leave for the period from 7.4.1999 to 6.4.2000.
(b) After expiry of leave period, on 30.1.2002 petitioner intimated to the second respondent of his intention to join duty with effect from 1.3.2002 and on his return to duty, he was asked to join duty at the Coimbatore Office by order dated 12.3.2002 and accordingly petitioner joined duty on 18.3.2002.
(c) Due to family circumstances, petitioner gave a notice on 18.3.2002 for voluntary retirement and requested the first respondent to relieve him from duty on 17.6.2002. However, no order was passed by the respondents till date even after expiry of the notice period. According to the petitioner, under FR.56(3) he is eligible for voluntary retirement as he has completed 50 years of age and 20 years of service as on the date of notice and that he had issued three months notice as required under FR. 56(3)(a).
(d) It is also submitted that no disciplinary proceeding is pending or contemplated against him and no due is to be recovered from him. The second respondent in his letter dated 27.5.2002 intimated to the petitioner that his application dated 18.3.2002 has been sent to the Government for approval. However no order accepting or rejecting the said request for voluntary retirement is communicated to the petitioner. It is also stated that if no order is passed even after expiry of the period of notice, the same shall be deemed to have been accepted as per FR.56(3)(f).
(e) It is also averred in the affidavit that the first respondent by letter dated 11.6.2002 called for certain particulars from the petitioner, which was also furnished along with a covering letter dated 30.6.2002. The respondents duly sanctioned the leave applied for by the petitioner from time to time as he was eligible for the same. It is further stated that the first respondent in G.O.3D. No. 1, dated 18.3.1997 stated that the absence of petitioner from duty would not constitute a break in service and that if the foreign employer or employee pays contribution towards pension, such period will count for pension. Petitioner submits that he is willing to pay the said contribution towards pension and any other dues, if any pending, and hence there is no impediment for the respondents to relieve the petitioner from service.
(f) Petitioner further states that he had made a further request by letter dated 17.6.2002 requesting the respondents to relieve him at least on 2.7.2002, but in spite of that there is no action on the part of the respondents. Therefore, petitioner has filed the original application with the above referred prayer.
3. In spite of service of notice to the respondents as early as on 17.7.2002, no counter affidavit is filed.
4. I have heard the learned Counsel for the petitioner as well as the learned Government Advocate.
5. According to the learned Counsel for the petitioner the petitioner is entitled to go on voluntary retirement as he had complied with the legal formalities of giving three months prior notice and attained the age of 50 years and completed 20 years of service, but in spite of that, his proposal was neither accepted nor rejected till date. According to the learned Counsel, if no order is passed within the expiry of notice period, the proposal to go on voluntary retirement deemed to have been accepted, under FR. 56(3)(f). The learned Counsel placed reliance on the decision of the Supreme Court Tek Chand v. Dile Ram , in support of his contentions.
6. It would be useful to extract FR.56(3)(f), which reads as under:
FR.56(3)(f).-- The appointing authority shall issue orders before the date of expiry of notice either accepting the voluntary retirement or not. Otherwise, the Government servant shall be deemed to have been retired voluntarily from service at the end of the period of notice.
7. In the decision Tek Chand v. Dile Ram , in paragraph 35, the Honourable Supreme Court held thus:
...there are three categories of rules relating to seeking of voluntary retirement after notice. In the first category, voluntary retirement automatically comes into force on expiry of notice period. In the second category also, retirement comes into force unless an order is passed during notice period withholding permission to retire and in the third category voluntary retirement does not come into force unless permission to this effect is granted by the competent authority. In such a case, refusal of permission can be communicated even after the expiry of the notice period. It all depends upon the relevant rules. In the case decided, the relevant Rule required acceptance of notice by appointing authority and the proviso to the Rule further laid down that retirement shall come into force automatically if the appointing authority did not refuse permission during the notice period. Refusal was not communicated to the respondent during the notice period and the Court held that voluntary retirement came into force on expiry of the notice period and subsequent order conveyed to him that he could not be deemed to have voluntary retired had no effect. The present case is almost identical to the one decided by this Court in the aforesaid decision.
As held by the Honourable Supreme Court, if there is no specific rule, which requires acceptance of notice by the respondents herein, as per FR.56, the petitioner is deemed to have been retired voluntarily after the expiry of the notice period. Moreover, admittedly, no refusal order was communicated to the petitioner as in the case cited supra. Therefore the above referred decision fully supports the case of the petitioner in view of FR.56(3)(f), extracted above.
8. Therefore, the Writ Petition is allowed. The respondents are directed to issue a formal relieving order to the petitioner within a period of two weeks from the date of receipt of copy of this order, indicating that the petitioner was relieved from service from 17.6.2002. Petitioner shall be paid all pentionary benefits, as applicable under the rules, within a period of six months from the date of receipt of copy of this order. No costs.