Central Administrative Tribunal - Delhi
Si Rajinder Singh vs Union Of India on 1 June, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI OA No. 159/2010 Reserved on : 14.05.2012 Pronounced on : 01.06.2012 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) SI Rajinder Singh, S/o Late Shri Ran Singh, age 54 years, R/o H. No. 199, Village Tilangi Pur, Kotla, PO Najafgarh, Delhi-110043. Applicant (By Advocate: Dr. M.P. Raju) VERSUS 1. Union of India Through the Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. The Deputy Secretary (Establishment) Establishment, DOP&T, Ministry of Home Affairs, North Block, New Delhi. 3. Government of NCTD Through the Joint Secretary (Home), Govt. of NCTD, Ministry of Home Affairs, North Block, New Delhi. 4. The Commissioner of Police, Delhi, Police Headquarters, I. P. Estate, M.S.O. Building, New Delhi. 5. The Joint Commissioner of Police, Establishment Through the Commissioner of Police, Police Headquarters, I. P. Estate, M.S.O. Building, New Delhi. 6. Shri Virender Singh (the then Principal PTC, Jharoda Kalan), Addl. Commissioner of Police, South East through the Commissioner of Police, Police Headquarters, I. P. Estate, M.S.O. Building, New Delhi. 7. The Principal, Police Training College, Jharoda Kalan, New Delhi. Respondents (By Advocates: Mrs. Renu George for the official respondents & Mr.Ajesh Luthra for 6th respondent). O R D E R Dr. Ramesh Chandra Panda, Member (A):
Pursuant to the dismissal of the applicants OA in limine on 07.04.2010 by this Tribunal, Shri Rajinder Singh, the applicant herein, moved the Honble High Court of Delhi challenging the said order in WP(C) No. 5502/2010 which was decided on 18.08.2010 remitting the case to this Tribunal for fresh consideration and determination of issues raised in the OA. It would be just and proper to reproduce below the relevant part of the said judgment of the Honble High Court of Delhi, which reads thus:
5. The petitioner made a representation on 24.05.2007 praying that he be permitted to withdraw his request for voluntary retirement which request was rejected vide order dated 18.07.2007. Request of the petitioner to reinstate him by relaxing Rule 88 of the CCS(Pension) Rules, 1972 was not accepted as per the rejection order W.P.(C)5502/2010 Page 1 of 4 dated 08.12.2009 and this compelled the petitioner to move the Central Administrative Tribunal.
6. The facts that seems stranger than fiction which was pleaded by the petitioner, were that he was a Head Constable (Ministerial) under Delhi Police having been joined on 02.06.1976 and was promoted as ASI in the year 1986. A further promotion was earned by him as S.I. on 01.03.1998. On 31.07.2006 he was posted at the Police Training College, Jharoda Kalan where he was directly working under Mr.Virender Singh the then Additional Commissioner of Police. He stated that Sh.Virender Singh did numerous acts which was probably indicative of Mr.Virender Singh being desirous to get some financial benefits. Understanding so he deposited Rs.20,000/- in the account of Virender Singh. He stated that somebody felt something amiss and there was smoke all around sensing trouble for himself. Virender Singh requested the petitioner to submit an offer for voluntary retirement with an assurance that later on he would ensure that the petitioner is reinstated. Reason why this stratagem of contrivance was adopted was that Virender Singh though that if the petitioner were to move out the smoke would clear, the rumors would die down and when all would be fine, the petitioner would be reinstated.
7. The Tribunal has found all this to be a cock and bull story. Needless to state, the petition filed by the petitioner before the Tribunal has been rejected.
8. As noted above, the service record of the petitioner was summoned and has been produced before us today.
9. We find it very strange that the letter of offer dated 18.04.2007 seeking voluntary retirement was processed so fast that even lightening would be amazed at the speed. The application was processed at four levels at 18.04.2007. Needless to state, as per the W.P.(C)5502/2010 Page 2 of 4 service rules, the letter of offer seeking voluntary retirement could not be accepted without vigilance clearance and this were communicated through wireless and fax.
10. We have never come across such prompt action by any Government officer. It is surprising that a message transmitted the same day was responded to the same day by the vigilance branch. It is surprising that the personal file of the petitioner was considered by another department and a response sent on the same day. Needless to state, both responses were that there was nothing in the service record which merited a rejection of the offer of the petitioner to be voluntarily retired.
11. There is something amiss. The matter needs a proper look.
12. We may highlight one fact; that Sh.Virender Singh was the Principle of the Police Training College, Jharoda Kalan where the petitioner was deputed under him. He has a primary role in the quick movement of the file. He has a primary role in ensuring that everything is done post haste.
13. We refrain from speaking more for the reason parties may be prejudiced.
14. We dispose of the petition setting aside the impugned order dated 07.04.2010 passed by the Central Administrative Tribunal. We restore O.A.No.159/2010. We direct the Tribunal to microscopically examine the facts as alleged by the petitioner and after calling upon the respondent to file a response as also the relevant record, decision would be taken as per law.
15. Parties are directed to appear before the Registrar of the Tribunal on 06.09.2010. On this order being produced the learned Registrar would revive the proceedings and list the matter before an appropriate bench.
16. Needless to state, nothing said by us would be construed as expression on the merits of the controversy. The bare minimum facts noted by us are simply to highlight that the instant matter does not merit a dismissal in limine and needs proper investigation.
2. Consequent to the above order of the Honble High Court, notices were issued to both the parties. The official respondents filed the reply affidavit through Mrs. Renu George learned counsel on 06.12.2010 which was responded to by the applicant in filing the rejoinder on 18.01.2011. In the meantime, the applicant moved MA No.287/2011 seeking direction of the Tribunal to the sixth respondent to produce his authorization for the counsel appearing on his behalf or to decide to proceed against the sixth respondent ex parte. Further, in MA No.286/2011, the applicant sought a direction to the respondents to produce all related records and documents of the case especially those with the Police Headquarters including orders made on the representation of the applicant to the Commissioner of Police, the comments sought from the sixth respondent by the Police Headquarters, and the reply furnished by the sixth respondent thereon etc. In response to the MA No. 286/2011, the official respondents undertook to produce the relevant records and they did place the same before us during the hearing which we have retained for perusal. (The relevant records being the File on VRS of SI(Min.) Rajinder Singh No.D-2 of Estt. Branch/PTC-Volume-I). In MA No.781/2011 filed on 16.03.2011, the applicant sought to file additional grounds in support of his claim, which was permitted. Counter reply on the same was filed by the official respondents on 30.03.2011 and rejoinder thereto was filed by the applicant on 22.05.2011. It is noted that sixth respondent submitted his reply affidavit through Shri Ajesh Luthra, learned counsel on 22.09.2011. The applicant submitted his rejoinder on the reply of the sixth respondent on 17.10.2011. The pleadings in this case being complete, the case was partly heard on 10.05.2012 and finally on 14.05.2012.
3. Before we proceed further, it would be appropriate for us to take the extract of the relief(s) that the applicant has prayed, which are as follows:-
To set aside the impugned order from A-1 to A-3 and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority and promotion and pay and allowances.
To direct the respondents to produce before the Honble Tribunal all the documents, files along with noting and drafting in relation to the voluntary retirement of the applicant before the Honble Tribunal.
Any other relief which this Honble court deems fit and proper may also be awarded to the applicant.
4. In view of the above reliefs sought for by the applicant, we intend to recapitulate the minimum facts which are relevant for our consideration. Shri Rajinder Singh, the applicant, who joined Delhi Police on 02.06.1976 was promoted to the Sub-Inspector of Police rank on 01.03.1998 and in the said position was transferred to Police Training College (PTC) at Jharoda Kalan, Delhi on 31.07.2006. It is the case of the applicant that sixth respondent who was the then Addl. Commissioner of Police (Principal, PTC, Jharoda Kalan, Delhi) under whom he was working requested the applicant to pursue sixth respondents salary matter as his salary has not been drawn regularly and as a result of which he was facing financial crunch. The sixth respondent used to ask the applicant almost regularly about the progress of his salary remittances. There is a dispute as to on what date the sixth respondent handed over the ATM Card with PIN number to the applicant. As per the applicant the sixth respondent gave his ATM Card and the PIN number to the applicant on 01.04.2007 and told to check the balance in the said account. On 05.04.2007, the applicant tried to hand over the ATM card along with balance enquiry statement showing Rs.21000/-, but the sixth respondent told the applicant to keep the same ATM Card with him. The averment of the sixth respondent discloses that he has handed over the ATM Card to the applicant on 11.04.2007 to check the salary amount remittance to his account. It is averred by the applicant that as the sixth respondent was regularly inquiring about the issue of his salary, the applicant came to the conclusion that the Addl. Commissioner i.e. sixth respondent was in need of some financial help. Therefore, in order to help his senior officer, the applicant deposited Rs.20,000/- into sixth respondents bank account on 13.04.2007 and thereafter gave the ATM Card along with the receipt of balance amount amounting to Rs.41,000/- to him. Thereafter, it appears that the said remittance of Rs.20,000/- to the sixth respondents account came to the notice of senior officers of Delhi Police, and it is alleged by the applicant that in order to hush up the matter and to show his image as clean, on 17.04.2007 sixth respondent asked the applicant to submit his resignation immediately and assured him that as soon as the dust settled down he would be reinstated in service. The applicant received back the said amount of Rs.20,000/- from the sixth respondent on 18.04.2007. It is stated that the applicant resigned from service as he was forced to do so by the sixth respondent. He goes on to add that when he came back home on 17.04.2007, his family members after hearing about the said matter desired to visit the house of sixth respondent. Accordingly, the applicant along with his wife and son visited him in his house who assured the applicant that he would find some other way out and within a week he would be reinstated into service. On 18.04.2007, the applicant went to the office where he was assured that if he would request for voluntary retirement with immediate effect then he would be reinstated shortly thereafter. The applicant submits that as desired by the sixth respondent, he submitted his request for voluntary retirement to be ordered forthwith, which was accepted immediately on the same day by the sixth respondent. It is the case of the applicant that due to undue influence and assurance he got from the sixth respondent, he has submitted his voluntary retirement request letter on the ground of his ill health and domestic problems. The applicant has further averred that the sixth respondent has assured him to accept his request for withdrawal of his application for voluntary retirement. It is averred that the vigilance clearance of the applicant has been done within two hours, which in normal course takes about two months. This proved that the matter was hurriedly decided and the inference should be that the applicants letter for voluntary retirement was not voluntary. It is the case of the applicant that though his voluntary retirement was accepted and ordered on 18.04.2007 but by another order dated 08.09.2010 (Page 88) the date of his retirement was intimated to be w.e.f. 19.04.2007. Vide his letter dated 24.05.2007 (page 33) the applicant requested for withdrawal of his voluntary retirement which was rejected by the impugned order dated 18.07.2007 (page 30). He represented to the fourth respondent on 17.09.2007 who, after consideration, informed the Government of NCT of Delhi that Department would like to take back the applicant into service. The applicant followed up with letters and reminders but he received an order dated 08.12.2009 rejecting the applicants request. Being aggrieved, he filed the OA No.159/2010 which was decided on 07.04.2010 in dismissing the same in limine. He challenged the said order in WP(C) No.5502/2010 which was decided on 18.08.2010 remitting the case back to the Tribunal. Thus, the applicants case in the instant OA is before the Tribunal for fresh consideration.
5. Dr. M.P. Raju, learned counsel for the applicant, highlighting the background of the case submitted his contentions under four heads, namely (i) mala fides in facts, (ii) malice in law, (iii) non-application of mind, and (iv) bias and non-compliance of the principle of natural justice. We would deal with these contentions in details. (i) With regard to the malice in facts, he narrated the incident on the basis of which the applicant was forced and coerced to submit his resignation in the first instance, and thereafter on meeting the sixth respondent at his residence he was forced to submit a voluntary retirement notice. The highest speed in which the applicants voluntary retirement notice was processed and accepted on the same day within a period of two hours, are some of the actions of the 6th respondent which disclose mala fides on the part of the sixth respondent. He also submits that for checking the personal bank account of the 6th respondent, there was no need for the sixth respondent to entrust the work to the applicant and to hand over him not only the ATM Card but also informed the PIN number on 01.04.2007. Further, if the applicant is alleged to have committed any bribery in depositing Rs.20,000/- in the applicants account, the same could have been proceeded against for the alleged serious offence and misconduct of bribery. Instead of doing so, the malicious action of the 6th respondent is clearly exhibited in the acceptance of voluntary retirement in one day. In this context, he placed his reliance on the judgments of Honble Supreme Court in the matters of State of Punjab versus Ramjilal and Others [(1971)-2-SCR-550]; State of Haryana & Others versus Rajindra Sareen [(1972)-2-SCR-452]; Express Newspapers Pvt. Ltd. and Others versus Union of India [(1985) Suppl.3-SCR-382]; Union of India versus Malti Sharma [(2006)-9-SCC-262]; Union of India and Another versus V. Ramakrishnan and Others [(2005)-8-SCC-394]; and Bahadursinh Lakhubhai Gohil versus Jagdishbhai M. Kamalia and Others [(2004)-2-SCC 65]. (ii) The second leg of his submission is that there is malice in law, as much as there has been violation of the Rules 48 and 88 of the CCS (Pension) Rules, 1972. He supports his contention to state that when there was no request for curtailment of notice period, the sixth respondent could not have interpreted the clause forthwith as the intention of the applicant to curtail the notice period. In view of this, there is malice in law in the action of accepting the applicants voluntary retirement on the same day. Besides, the applicants request for withdrawal of voluntary retirement filed within the period of three months of his notice having been rejected, there is violation of the provisions of the CCS(Pension) Rules. In this context, learned counsel highlighted the meaning of forthwith from Oxford and Black Law Dictionary to indicate that the word forthwith does not mean that on the same day it should be cleared de hors the prescribed rules on the subject. He also placed his reliance on the judgments of Honble Supreme Court in the matters of Bidya Deb Barma etc. versus District Magistrate, Tripura, Agartala [(1969)-1-SCR-562]; Navalshankar Ishwarlal Dave and Another versus State of Gujarat and Others [(1993) Suppl.-3-SCC-754]; Keshav Nilkanth Joglekar versus The Commissioner of Police, Greater Bombay [(1956-SCR-653]; Gora versus State of West Bengal [AIR-(1975)-SC-473]; and Gopal Mondal versus The State of West Bengal [AIR-(1975)-SC-1807]. (iii) The third submission advanced by the learned counsel relates to the non-application of mind by the Competent Authority in (a) accepting the applicants voluntary retirement within the shortest period of time, namely, on the same day i.e. 18.04.2007 and (b) subsequently altering the date of retirement from 18.04.2007 (AN) to 19.04.2007 (FN). It is his contention that the said action of the Competent Authority suffers from the principle of non-application of mind and, therefore, both the impugned orders are liable to be quashed. (iv) Another set of grounds taken by the learned counsel for the applicant refers to the violation of principles of natural justice. Dr. Raju would submit that no notice was given to the applicant even before the acceptance of the voluntary retirement request submitted by the applicant under the direction of the sixth respondent. Due to coercion, he submitted his voluntary retirement request inasmuch as he could not even keep a copy of the same. Therefore, the action of the respondents suffers from non-compliance of the principles of natural justice. Further, the Competent Authority developed the bias against the applicant no sooner the fact of depositing a sum of Rs.20,000/- in his account by the applicant came to the notice of others. That has triggered the sixth respondent to take coercive steps against the applicant whereby he was asked to first submit his resignation and later on meeting the sixth respondent at his residence along with his son and wife, the said resignation has been softened to be voluntary retirement. As the sixth respondent developed bias against the applicant, his subsequent action would amount to the violation of principles of natural justice. As the notice for voluntary retirement was not issued to the applicant and opportunity to the applicant was not extended before retirement, his request for withdrawal of voluntary retirement, inaction on the part of the Competent Authority would attract also the violation of principles of natural justice. In this context, the learned counsel draws his support from the judgments of Honble Supreme Court in the matters of K.L.E. Society versus Dr. R.R. Patil and Another [(2002)-5-SCC-278]; Bal Ram Gupta versus Union of India and Another [(1987)-Suppl.-SCC-229]; and J.N. Srivastava versus Union of India and Another [(1998)-9-SCC-559]. In view of the above contentions, it is urged to allow the Original Application by quashing and setting aside the impugned orders and directing the respondents to reinstate the applicant into service with all consequential benefits.
6. On receipt of the notice the official respondents have filed their reply affidavit on 07.12.2010 through Smt. Renu George, learned Government Counsel.
7. The sixth respondent [Sh.Virender Singh, IPS, Joint Commissioner of Police (Headquarters)] has also furnished in his private capacity an affidavit through Shri Ajesh Luthra learned counsel, wherein he has endorsed the views expressed in the affidavit filed by the official respondents and has inter alia denied the two allegations leveled by the applicant, namely, (i) as the Additional Commissioner of Police (Training/Principal-PTC) he gave an impression to the applicant that he was in need of some financial help; and (ii) that the applicant would be reinstated later on once he submitted his voluntary retirement notice/resignation. He also denied about any assurance given to the applicant in any manner and has denied all the allegations including mala fides leveled against him. Shri Ajesh Luthra, learned counsel for the sixth respondent, also reiterated the stand taken by Smt. Renu George and submitted that the sixth respondent had taken action as per the law. As the applicant was keen to get his voluntary retirement sanctioned forthwith, the sixth respondent being the Competent Authority had to get all clearances and approved the impugned voluntary retirement on the same day i.e. on 18.04.2007.
8. On behalf of the official respondents, Smt. Renu George narrated the facts of the case and highlighted that the sixth respondent did not give his ATM Card and PIN number to the applicant on 01.04.2007 but on 11.04.2007, when the applicant was asked to check the balance amount in his bank account from the ATM located in the Police Training College Campus, as at that time the sixth respondents SO was not around and the applicant came to his chamber for clearing some files. On 12.04.2007, when the applicant came to his chamber for clearing some files, the sixth respondent also enquired about his ATM Card and the applicant stated that he could not check the balance amount as he remained busy and would attend to the same immediately. The ATM Card was returned to him at around 5.00 p.m. on 13.04.2007 when the sixth respondent was about to leave his office and found the balance statement which was kept inside the Card Folder. However, the applicant informed him that the balance was around Rs.40,000/-. As he was receiving a telephone call, he left the office and the next two days being Saturday and Sunday, he did not check the balance statement which slipped his mind and he could not disbelieve the applicants statement. He had applied = days casual leave for 16.04.2007 (Monday) and a days casual leave for 17.04.2007 (Tuesday) as he had some personal engagements. The sixth respondent, however, was expecting six months salary and arrears to be deposited in his bank account. Therefore, he checked the balance in his account but to his surprise he found that there were two statements one was of 11.04.2007 showing balance of Rs.21,619/- and the other was of 13.04.2017 showing the balance of Rs.41,619/-. The difference was exactly of Rs.20,000/-. Presuming some mistake and/or discrepancy in the two statements, at about 7.00 p.m. he sent his Personal Orderly to check the balance amount again to re-verify the statement dated 13.04.2007, and the statement revealed that there was an entry of Rs.20,000/-. He, therefore, requested his office to give a message to the applicant to talk to him. The applicant contacted him over phone and stated that there would be some discrepancy/mistake on the part of the bank authorities and they would make adjustments accordingly. He contacted his Steno (ASI, Jagdish) to go to the office of UTI Bank which was in Khan Market to inform the bank authorities about the discrepancy and to rectify the same. On 17.04.2007 i.e. Tuesday at about 1.00 p.m. he was informed of the discrepancy in his bank account and Shri Devender Singh who got the account verified told him that a sum of Rs.20,000/- had been deposited in his account in UTI Bank, Najafgarh Branch on 13.04.2007. As he had not deposited the cash amount, on scrutiny of the deposit form, it was noticed by him that somebody was trying to play dirty trick with him. He, therefore, requested Mr. Devender Singh to block/freeze the entry of Rs.20,000/- as he suspected some foul play. He immediately informed the Special Commissioner of Police/Training (Shri S.B. Deol) on telephone and narrated him the entire incident. As he was on leave on that day, he had to cancel his programme as it was essential for him to find out as to who deposited the said amount. On seeing the deposit form, Shri Balbir Singh, ACP (Headquarters) recognized the handwriting and said that this handwriting was of the applicant as the said Balbir Singh used to see the applicants handwriting on files every day. On knowing the same, the applicant was called and asked about the said deposit of Rs.20,000/- in his bank account on 13.04.2007 which the applicant straightaway denied twice. When he accosted the applicant with material evidence to establish that he had deposited the said amount, the applicant accepted to say that he deposited Rs.20,000/- on 13.04.2007. The applicant took the plea that since the sixth respondent was not getting his salary for the last 6-7 months, the applicant thought that the sixth respondent was in need of money for which he deposited Rs.20,000/- into his account to help him. It is alleged that the idea behind the deposit of Rs.20,000/- in the account of sixth respondent was to exploit the situation that he was not getting salary and to bribe him. After that juncture, the sixth respondent informed the applicant that that being a serious offence, he would be liable for prosecution and if he did not want prosecution, he would have to submit his resignation. The applicant accordingly submitted his resignation apologizing for his misconduct and breach of faith. This fact was informed by the sixth respondent to Special Commissioner of Police/Training (Shri S.B. Deol) over phone. It is stated that all these deliberations between the sixth respondent and the applicant took place in the presence of ACPs, SO to Special Commissioner of Police/Trg., the then P.PTCs Staff Officer, ASI Jagdish and Ct. Gajender Singh. It is also stated that at about 9.30 p.m., the applicant along with his wife and son visited his residence and requested him that instead of accepting the applicants resignation, he should be allowed to take voluntary retirement so that the applicant could get the pensionary benefits as he was the only earning member of the family. He was directed by the sixth respondent to meet him in the office the next day. The sixth respondent reported the full facts to the Special Commissioner of Police/Training on 14.03.2007. In the meantime, the applicant appeared before him and after consulting the Special Commissioner of Police/Training, he allowed the applicant to submit his request for voluntary retirement. On receipt of the said request, the sixth respondent processed, got appropriate clearances and decided to accept the request of the applicant for voluntary retirement on the same day i.e. 14.05.2007. On 14.05.2007 Rs.20,000/-, which the applicant had deposited, was returned to him with proper receipt.
9. It is stated by the learned counsel for the respondents that this was an attempt by the applicant to allure the sixth respondent by offering illegal gratification and pretending to be not aware of the deposit of Rs.20,000/- in his bank account at the initial stage and when accosted with the copy of the deposit form, he admitted his misconduct/offence. Smt. Renu Georges contention is that this was a deliberate and intentional attempt made by the applicant and he would have faced a criminal case but for the leniency taken by the sixth respondent, the applicant was not proceeded in the criminal proceedings but his request for voluntary retirement was accepted. She raised the question, had the sixth respondent got any mala fide intention against the applicant, there was no need for him to make enquiries from the bank, to inform his senior officers, and to take action against him. It is further stated by Mrs. George that consequent to the news item appeared in the Indian Express on 22.04.2007, the sixth respondent met the fourth respondent on 23.04.2007 and briefed him about the full facts. He also met Shri B.S. Bassi, the then CP/Vigilance who also visited the PTC and recorded the statements of the concerned officers. As the applicant submitted his voluntary retirement application dated 18.04.2007 and requested to accept the same forthwith, his request was considered and under provisions of the Rule 48-A (I)(I-A) (a) of CCS (Pension) Rules, 1972 and he was allowed to proceed on voluntary retirement w.e.f. 19.04.2007.
10. It is further stated on behalf of the respondents that the applicant did not submit required documents to process his pension papers and, therefore, he was reminded to do so. Applicants representation to withdraw the voluntary retirement filed by him in May, 2007 was not acceded to. On the basis of a representation given to the fourth respondent, the applicant was informed that his case regarding relaxation of Rule 88 of the CCS (Pension) Rules by reinstating him into service was not agreed to by the competent authority and the same was again examined with reference to the Home Ministrys letter dated 19.08.2009 and as no ground was found, his request was rejected. The contention of Mrs. George is that as the applicants action was serious in nature and would have visited him with criminal and disciplinary proceedings, the competent authority took a lenient view and approved the voluntary retirement which would entitled the applicant to receive his retiral benefits. Through Miscellaneous Application No. 781/2011, the respondents have brought on record to say that the applicants salary was paid to him right upto 18.04.2007 and his voluntary retirement came into force w.ef. 19.04.2007 (FN). In this regard, competent authority has issued a separate order. Learned counsel for the respondents argues that it is a fit case to dismiss the OA.
11. The applicant has filed rejoinder and reply to MA No.781/2011 almost pleading the same facts and grounds.
12. Having heard the contentions of the parties and with the assistance of their counsel, we have perused the pleadings and relied upon judgments in the OA. We also perused the concerned official file placed before us by the respondents. The controversy is in the present OA revolves round the issues mainly on(i) whether the impugned order accepting the voluntary retirement of the applicant on the same day is legally sustainable? and (ii) whether the rejection of the applicants request for withdrawal of voluntary retirement letter was correct?
13. In order to address the above issue, it would be pertinent for us to recollect the admitted facts. It is not in dispute that the sixth respondent gave his UTI Bank ATM Card along with PIN number to the applicant to verify the balance in his bank account. It is also admitted fact by the applicant that he remitted Rs. 20,000/- to the sixth respondents bank account, which is borne out from the remittance challan copy perused by the respondents. It is also not in dispute that the applicant submitted his resignation on 17.04.2007 and on 18.04.2007 he submitted his voluntary retirement request. Both the parties also accept that the applicant with his wife and son met the sixth respondent in his house on the eve of 17.04.2007 to request him not to accept the resignation.
14. We may advert to the issue of the applicants submission of resignation and subsequently voluntary retirement which is the basis for respondents acceptance of the voluntary retirement. The issue is if the employee does not indicate the notice period and does not seek waiver/relaxation or curtailment of notice period but indicates to accept forthwith his voluntary retirement what does it mean? Does it mean that the same should be accepted on the same day or does it mean that reasonable time should be taken to accept the voluntary retirement or the competent authority would have taken a decision within a period of three months? The answer to these alternative questions depend on the facts of the present case.
15. On 17.04.2007, he submitted his resignation which is prelude to the submission of voluntary retirement letter dated 18.04.2007. The resignation letter reads as follows:-
To The Principal P.T.C. J.Kalan.
(Through Proper Channel) Subject :- Notice for resignation.
Honble Sir, With due respect I am to state that I was having ATM Card of your kind honour in order to check the balance enquiry. I kept the ATM Card for 4/5 days with me. I make Balance Enquiry on 11.04.2007 and 13.04.2007. I was of the view that salary of your kind honour was not drawn for the last 6/7 months and I was not aware about family background so I deposited Rs.20,000/- from my account without any kind of malafide. On enquiry by your goodself on the evening of 16.04.2007, I told that it may be wrong entry & amount will be recovered by UTI. Sir, I have no bad intention and request your kind honour to pardon me.
Under the above mentioned circumstances, I felt myself very very bad position & I am not in a position to stand before your kind honour. It is requested that my resignation from service be accepted.
Thanking you, Yours faithfully Sd/-
Rajinder Singh S.I. No.D-2 (Min.) Office of P/PTC Dt.17-4-07.
16. It is not in dispute that the applicant accompanied by his wife and son met the sixth respondent at his residence on 17.04.2007 evening and thereafter on 18.04.2007 he submitted his request for voluntary retirement. We may take the extract of the applicants said voluntary retirement letter dated 18.04.2007 which reads thus:-
To The Principal P.T.C. J.K. Delhi (Through Proper Channel) Subject :- Notice for voluntary Retirement.
Honble Sir, My humble submission is that I am suffering from a chronic disease and is not able to serve more. My ill health do not allow me to perform duties efficiently. Further I have some domestic problems due to which it is not possible for me to serve more.
It is, therefore, requested that I may be given voluntary retirement from service. I will not forget this kind act for the sake my family & same may be accepted forthwith.
Thanking you, Yours faithfully Sd/-
Rajinder Singh S.I. No.D-2 (Min.) Office of P/PTC JK Delhi Dt.18-4-07.
17. It is apt to note that the employment of government servant is governed by relevant rules which provide a particular age as the age of superannuation. The rules provide that an employee who has completed the said number of years in his age or who has completed the prescribed number of years of qualifying service could give notice of say three months or even more to retire voluntarily on the expiry of the said notice period. The relationship of master and servant under the rules continues after the period specified in the notice till such acceptance is communicated. As per FR 56 (k) (1) any government servant may give notice of not less than three months in writing to the appropriate authorities to retire from service after he has attained the prescribed age in his government service/post. It is relevant for us to note that the phrase used in the rule says that notice of not less than three months is necessarily to be given by the applicant. However, FR-56 (k)(1-A)(a) provides that such government servant desirous of going on voluntary retirement can make the request in writing to accept the said notice of voluntary retirement even within a period of less than three months but for the said purpose reasons need to be given and the concerned appointing authority after proper consideration of the said request may permit the curtailment of the period of notice of three months. As the said rule is applicable for the applicant, it would be just for us to refer to the same which reads as follows:-
(1-A) (a) A Government servant referred to in sub-clause (1) may make a request in writing to the appointing authority to accept notice of less than three months giving reasons therefore;
(b) On receipt of the request under sub-clause (1-A)(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, the 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.
18. A careful scrutiny of the notice for voluntary retirement extracted within would disclose that the applicant has requested for giving him voluntary retirement from service and the same may be accepted forthwith. There is no mention of the notice period nor there is any request for curtailment of the period of notice of three months. Further, our perusal of the records placed before us discloses that the competent authority who sanctioned the voluntary retirement of the applicant, has nowhere mentioned that the minimum notice period of three months has been curtailed and the reasons thereof have nowhere been recorded. From the statutory rules point of view, we are of the considered opinion that the impugned order accepting the voluntary retirement suffers from the illegality as the same has been passed de hors the rules.
19. We may at this stage refer to the strenuous arguments made by the counsel for the official and private respondents that it was the applicants case who sought to retire voluntarily forthwith and since the request was forthwith the competent authority considered the said request letter as notice period and sanctioned the voluntary retirement immediately. In this context, it must be noted that the rules provide the employee to give an option "to retire" voluntarily within a period specified in his notice but there is limited right to "seek" retirement voluntarily thereby implying the need for a consent of the employer even if there is no notice period. In State of Haryana Vs. S. K. Singhal[AIR-1999-SC-1829] the Hon'ble Apex Court considered its previous judgments and observed that there was clear distinction between "notice to retire" and "request to retire" voluntarily. But when there is no provision in the rules for the request to retire, by implication, it may mean that the letter of request is to be treated as a notice.
20. In view of the above judgment, it must be noted that the statutory rule provision being there the curtailment of the notice should have been considered by the Competent Authority. By not doing so, the action of the sixth respondent is noticed to be suffering from the non-application of mind.
21. The Hon'ble Supreme Court in its judgment in Ashok Kumar Sahu Vs. Union of India ( AIR-2006-SC-2879) observed that period of notice is not an inflexible one and we take the extract of the relevant para "32. We may observe that an appropriate order should be passed within a reasonable period. Normally, three months notice is required to be given as the said period is considered to be reasonable and it is expected that a decision would be taken within the said period. But the rule is not an inflexible one. It would depend upon the facts and circumstances of each case."
22. The learned counsel for the applicant relied on the judgment of Hon'ble Apex Court in K. L. E. Society Vs. R. R. Patil [2002 -5-SCC-278]to submit that as the applicant did not indicate the notice period, three months should have been construed as the period. We have perused the facts of the said judgment and note that the respondent no. 1 submitted the second notice on 5.7.1995, no reference was made to the earlier notice dated 2.12.1994which meant there could not have been two applications for voluntary retirement. By accepting the second application on 5.7.1995 the first application must in any event be treated as having been superseded. The respondent no.1's letter dated 5.7.1995 was in fact a fresh application for voluntary retirement. Here too the respondent no. 1 did not specify the intended date of retirement. He only requested that he may be permitted to take retirement 'at the earliest'. The non specification of a date coupled with the fact that no request was made for curtailment of the notice period, meant that the date of his voluntary retirement could only be on or after 5.10.1995. During this period, the respondent no. 1 sent the letter dated 19.7.1995 requesting that the notice of voluntary retirement dated 5.7.1995 be kept in abeyance. This was not a letter for withdrawing the notice. It was a request that the notice may be kept in abeyance in the sense not considered immediately thus postponing the intended date of retirement. Assuming that the letter dated 19.7.1995 was a notice of withdrawal and that the appellant was right in discarding it, nevertheless the appellant was bound to allow the notice period of three months calculated from 5.7.1995 to expire before issuing an order accepting the notice. Admittedly the appellant did not do that. They issued the impugned order within 15 days. While considering other statutory provisions violated by the appellant the Hon'ble Apex Court dismissed the appeal.
23. It is appropriate to note that the allegations leveled by the applicant against the 6th respondent that he has been pressurized and coerced first to resign and then to seek voluntary retirement as the matter of remittance of Rs 20000 by the applicant to the 6th respondents account became known to others. Only if this allegation is found to be false, the speed at which the voluntary retirement was accepted may be permissible. It is apt to refer to a judgment of Honble Supreme Court in Gyanendra Sahay Vs. Tata Iron & Steel Co. Ltd.[2006 -5- SCC- 759], where after perusal of the Memo of Appeal and other representation made by the appellant it was noted that the appellant made a vague allegation that he was forced to take retirement. Neither he made it specific nor had given the name of any officer who compelled him to write the letter dt.1st April, 1995 or exercised undue and excessive pressure to sign the letter of voluntary retirement. It is settled law that suspicion and doubt cannot take the place of evidence. No finding of fact can be given on mere doubt and suspicion or on the basis of baseless allegations. The appellant having written letter of voluntary retirement and after having accepted the retiral benefits without any protest cannot now turn round and say that he was compelled to submit his voluntary retirement. The appeal was dismissed by affirming the order passed by the High Court.
24. In view of the above judgment, we refer to the facts in the instant OA and note that the sixth respondent put the applicant on threat of criminal prosecution and got the resignation letter and on applicants personal prayer for voluntary retirement request was received from the applicant. As the allegation has some basis the official respondents should not have put the allegation below the carpet but should have properly enquired into and taken the matter to its logical conclusion as there are some evidences to link the voluntary retirement to the special interest taken by the 6th respondent to hasten the acceptance. Further the allegation of coercion has a background of alleged act of bribing which is a serious matter and if found to be true both bribe giver and taker are liable to be proceeded in criminal and departmental proceedings. We may not like to do any probing further into the matter as the same should be done by the 4th respondent.
25. Now we may advert to the phrase forthwith which has been perceived by the parties differently. Respondents defined the action stating that forthwith means on the same day. But applicant feels otherwise. In this regard, we will refer to the connotation of forthwith as observed legally and Law Lexicon. The five member bench of Hon'ble Apex court in Bidya Deb Barma Vs. District Magistrate, Tripura, Agartala[AIR-1969-SC-323] considered Section 3(3) of the Prevention of Detention Act 1950 requiring District Magistrate to report order of detention to State Government 'forthwith' and analysed the meaning of 'forthwith'. Though the facts are different the Honble Supreme Court took into account its earlier judgments to say what is the meaning of forthwith. The question is whether the detention became illegal because 4 days were allowed to pass from the order of detention and 2 days from the date of arrest. The third sub-section quoted above uses the word 'forthwith'. Explaining this word Max-well in Interpretation of Statutes (Eleventh Edn.) at p. 341 observes as follows: "When a statute requires that something shall be done "forthwith" or "immediately" or even "instantly", it should probably be understood as allowing a reasonable time for doing it." The word 'forthwith' in Section 3 (3) and the phrase 'as soon as may be' used in the fourth sub-section were considered in Keshav Nilkanth Joglekar v. Commissioner of Police, Greater Bombay, 1956 SCR 653 at pp. 658-660 = (AIR 1957 SC 28 at p. 32). In that case the delay was of 8 days. Giving proper meaning to the expression it was observed:-
"We agree that 'forthwith' in Sec. 3 (3) cannot mean the same thing as 'as soon as may be' in Section 7, and that the former is mare peremptory than the latter. The difference between the two expressions lies, in our opinion, in this that while under Section 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under Section 3 (3) what is allowed is only the period during which be could not, without any fault of his own, send the report."
26. The issue of voluntary retirement may also be considered from other angles too. In Padubidri Damodar Shenoy Vs. Indian Airlines Ltd.[JT-2009-12-SC108], the Honourable Supreme Court considered the difference between "voluntary retirement" and "resignation" and observed as follows:
"36. In the case of Jaipal Singh vs. Sumitra Mahajan & Anr. ((2004) 4 SCC 522), in an appeal from election petition, this Court had an occasion to consider the difference between "voluntary retirement" and "resignation". This Court held thus:
10.......In the case of Reserve Bank of India v. Cecil Dennis Solomon (2004) 9 SCC 461, this Court has laid down that in service jurisprudence there is a difference between "voluntary retirement" and "resignation" as they convey different connotations. It has been held that voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service and though both involve voluntary acts, they operate differently. One of the basic distinctions between the two is that in the case of resignation, it can be tendered at any time but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. In the case of resignation, a prior permission is not mandatory while in the case of voluntary retirement, permission of the employer concerned is a requisite condition. Under Rule 16 of the 1958 Rules, an employee who seeks voluntary retirement has to give three months' notice to enable the employer to complete the designated mode of acceptance. (See Halsbury's Laws of England, 4th Edn., Vol. 9, p. 133.) Lastly, in a given case, the appointing authority may refuse to waive the said notice period which shows that resignation may be unilateral whereas voluntary retirement is bilateral. A similar question came up before this Court in the case of UCO Bank v. Sanwar Mal [(2004) 4 SCC 412] in which this Court has inter alia held that in the case of "resignation", the relationship of employer and employee terminates on acceptance of resignation whereas in the case of "retirement", voluntary or on superannuation, the relationship continues for the purposes of payment of retiral benefits. In the case of retirement, there is a nexus between such retirement and retiral benefits...."
27. In the present case it must be noted that the applicant filed his resignation in the first instance and later on the next day he submitted his voluntary retirement. In this context, it is to be noted that though there are different impacts on the applicant in each of the alternatives, the main basic principle common to both resignation and retirement is voluntary nature on the part of the applicant. The Hon'ble Supreme Court considered the distinction between "resignation" and "retirement" and came to the conclusion that both are to be exercised in voluntary nature as held in its judgment in J.K. Cotton Spg. and Wvg. Mills Company Ltd. Vs. State of Uttar Pradesh [AIR-1990-SC-1808]. There can be no doubt that a resignation must be voluntarily tendered for if it is tendered on account of duress or coercion, it ceases to be a voluntary act of the employee expressing a desire to quit service. The same logic is also applicable for voluntary retirement.
28. In view of the above judgment of Honble Supreme Court, it is noticed that the events which took place prior to submission of resignation and later on voluntary retirement are indicative of complications of the applicant depositing Rs.20,000/- to the bank account through challan and on detection, he wanted to wriggle out of the said alleged attempt of bribing his senior officer. Though the act of the applicant deserves to be properly enquired into and action taken as per law, but to put the alleged misconduct of the applicant below the carpet and adoption of coercive method to extract letter of resignation in the first instance and ultimately granting the voluntary retirement by getting another letter for the same are procedurally wrong and legally note tenable.
29. Let us examine the issue of withdrawal of voluntary retirement. Applicants request was not accepted. When the request of the voluntary retirement was hurriedly accepted, the respondents manifested the dictum Justice hurried is justice buried. The respondents had an opportunity to correct is mistake and illegality when the applicant filed his withdrawal letter. By rejecting the same net irregularity has been committed. Reference was made by the parties to certain judgments which we may note now. Hon'ble Apex Court considered the question in J. N. Srivastava Vs. Union of India[ AIR-1999-SC-1571] whether the appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him on 3-10-1989 which was to come into effect from 31-1-1990 and the proposal was accepted by the authorities on 2-11-1989. But before 31-1-1990 the appellant wrote a letter to withdraw his voluntary retirement proposal. This letter is dated 11-12-1989. The said request permitting him to withdraw the voluntary retirement proposal was not accepted by the respondents by communication dated 26-12-1989. The appellant, therefore, went to the Tribunal but the Tribunal gave him no relief and took the view that the voluntary retirement had come into force on 31-1-1990 and the appellant had given up the charge of the post as per his memo relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. Hon'ble Supreme Court did not agree with the said reasoning of the Tribunal and considering the well settled legal position ( Balram Gupta v. Union of India, reported in 1987 (Supp) SCC 228). and these appeals were allowed by setting aside the orders of the Tribunal as well as the order of the authorities dated 26-12-1989 and directed the respondent to treat the appellant to have validly withdrawn his proposal for voluntary retirement with effect from 31-1-1990. That is not the position in the instant OA where the applicant's request to retire voluntarily was accepted by the competent authority on 18.4.2007 and was communicated to him on the next day. As the applicant did not give any notice period to retire, the order of acceptance came into force on the date of communicating to the applicant. It must be stated that the applicant want his request to retire to be accepted forthwith but he withdrew after a period of about a month. Thus, in our considered view by rejecting the applicant's letter dated 24.5.2007.withdrawing his voluntary retirement is not legally valid.
30. Considering the facts and circumstances of the case and well settled position in law besides taking note of the statutory rule position, we are of the considered opinion that action of the sixth respondent in his official capacity as the Competent Authority in sanctioning the voluntary retirement on the same day suffers from legal and procedural infirmities. Besides, the applicant having applied to withdraw his voluntary retirement within a period of one month which is less than the notice period of three months has not been properly appreciated by the respondents. Had the Competent Authority dispassionately examined the case of the withdrawal of the voluntary retirement filed before the Competent Authority within one month period of tendering for voluntary retirement, the applicant would have been favoured with re-instatement order to his service. By rejecting, the Competent Authority has erred in its official capacity and prejudiced the applicant.
31. For the reasons stated within, we are of the considered opinion that the impugned order dated 18.07.2007 in which the applicants voluntary retirement was sanctioned and the order dated 08.12.2009 in which his request for withdrawal of voluntary retirement was rejected being not sustainable in the eyes of law are quashed and set aside. Resultantly, the respondents are directed (a) to put the applicant back in service in the post from which his voluntary retirement was ordered, and (b) to regulate the period from the date of voluntary retirement (19.07.2007) till the date of re-instatement to service as duty period in accordance with the extant rule and law.
32. Before we may part with the above order, we intend to record our observation for the fourth respondent to take action as per law. There are certain aspects where either reasons have not come forward during the hearing or the statements made in the hearing are not convincing. For example, why the applicant was given the PIN number along with the ATM Card by the sixth respondent while the banks normally advice the ATM Card Holder not to disclose the PIN number of the ATM Card to anybody with the purpose that illegal/irregular money withdrawals could not take place. These aspects may need appropriate investigation. The alleged misconduct of bribing the senior officers by the applicant has been noted in the body of this order. The applicant and the respondents belong to a disciplined service, namely, Delhi Police, who are the protectors of law of the land and to ensure that illegalities and offences if detected are dealt as per law. The individual employees should not take law in their hand and suppressed the criminal offence/misconduct of their subordinates. When the allegation of an attempt to bribe a senior officer by the applicant was noticed, it is not proper that without proper check, verification and taking action as appropriate under the law, forcing the applicant to submit resignation and later on accept his voluntary retirement are not appreciable act. We would, therefore, leave the matter in the hands of the fourth respondent to consider the facts and circumstances of the case and take action against the erring officials as may be admissible in law.
33. In terms of our above orders and directions, the Original Application is allowed leaving the parties to bear their own costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Cahndra Panda
Member (J) Member (A)
/naresh/