Central Administrative Tribunal - Kolkata
Dhruba Sen vs All India Radio on 14 May, 2018
1 0.8. 350.288.2013
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
Date of order: (It M4j 16j
/ No. O.A. 35010028812013
Present: Hon'bIe Ms. Manjula Das, Judicial Member
Hon'bie Dr. Nandita Chatterjee, Administrative Member
Dhruba Sen,
Son of Late Sudhindra Chandra Sen,
Employed as Sr. Engineering Assistant in the
Scale of pay of Rs. 7450-11500/- (RP' 97),
In the Office of Chief Engineer (EZ),
(now retired), All India Radio & Television,
Calcutta, residing at 411, Vivekananda Road1
Nabagram, Konnagár --712246.
Applicant
- VERSUS-
The Union
The Secç42tY
Minit~tf lqforjt1tioa& I
itk I 1 7
Shastri Bhawan
6 1 re t r
0
Eden Gar,
Kolkata --
Director/Dy. Director Administration (Enggj,
All India Radio & Television, Akashvani Bhawan,
1, Eden Gardens, 3 Fir., Kolkata 700 001. -
Station Director,
All India Radio & Television, Akashvani Bhawan,
Kolkata --700001.
Station Director,
All India Radio & Television,
Ture, Meghalaya.
Pay & Accounts Officer,
All India Radio,
Ministry of Information & Broadcasting,
1, Eden Gardens, 3rd FIr., Kolkata --700 0011.
Respondents
For the Applicant : Mr. B.R. Das, Counsel
2 o.a. 350.288.2013
Mr. K.K. Ohosh, Counsel
Ms. S. Dutta, Counsel
For the Respondents : Ms. R. Basu, Counsel
ORDER
Dr. Nandita Chatteriée, Administrative Member:
Aggrieved at ante-dating of voluntary retirement, the applicanthas filed the instant application seeking the following specific relief:
i. Rescind, recall and/or withdraw the order being Annexulre Al insofar as it directs the period of absence from 14.11.2000 to 22.12.2005 and settled as extraordinary leave (Annexure A120 to be canèelled and/or forfeited so as to review and refix the date of relinquishment as 14.11.2000 instead of 23.12.2005 (sic. 12.6.2009(AN).
Rescind, recall, withdraw and/or ify the order being,Annexure A2 so as to convey/order the he petitioner as on 12.11.99 to 23.12.2005 with incrernq6't'ln Fébr to be allowed w.e.f.
23.12.2000 being te4gi ofsirçrp(
A.
Direct paymeif of [owan9 ncluding arrears with
effect from 23.1.2005 ti %6.20t N) saris the amount
already paid with appropi .f. €2b06.
Co
Recast all e pay refixed upon
retirement on 12 in adcordance with
the order dated I 12
V. Certify and transmit the entire records and papers pertaining to the
applicant's case so that after the caused shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayed for in (i) to (iv) abpve.
V. Pass such other order/orders and /or direction/directiOns as deemed fit and proper." C Heard both Counsel and examined pleadings. Liberty had.been accorded to both Id. Counsel for filing written arguments within a week's time. No such written arguments, filed within the stipulated period, are found on record.
The case of the applicant, as submitted by his Ld. Counsel, is as follows:-
That, the applicant having been appointed by the respondent authorities as an Engineering Assistant on 28.5.1979 was subsequently promoted as Sr. Engineering Assistant in 1986. The applicant had served a notice dated 4.1.2000 :7 3 oa. 350.288.2013 /seeking voluntary retirement after dompletion of 20 years of qualifying service. While the applicant was awaiting acceptance of such voluntary retirement in / response to his notice, he was transferred to Tura in North East. Thereafter, he was directed to join as Sr. Engineering Assistant in Kolkata upon which he reported for duty on 23,12,2005.
That, the applicant was asked to submit a fresh notice for voluntary retirement upon which he submitted another notice initially mcdifying the intended date for voluntary retirement to take effect from 31 .a.2006 and thereafter further modifying the same to take effect froml .7.2006 (A-S) That, his period of nonperformance of duty till 22.12.2005 vhile he was awaiting decision on voluntary retirement was treated by respondeot authorities a as dies-non (AnneXule A-I to the 9t4t'lt)tS t r ) That, thepplican/Wa*oZ?r ,Xt*t12.2005 and at a later like sd,eOr SEA Upon being point of time, was paia j! the initia ° 10020O0, th respondents directed by the TribJnin al aJissued the Pension allowed his licant has pa he the Tribunal with the Payment Order thereafter.
\ \", .,%-. "1 instant O.A. to seek reviev1of'the 6?dgPdkd 91 011 (AnneXure A-i to the O.A.) whereby his date of relinquirnëMtfes has been recommended to be fixed w.e.f. 14.11.2000.
The grounds advanced in the instant application are that the petitioner being in regular service till his retirement on 12.6.2009; the date of relinquishment of service, on 14.11,2000 was beyond the jurisdiction of the '4 respondent authorities.
) That, althoUgh he had resumed his duty on 23.12.2005, he was not paid any salary during the period from 22.12.2005 to October, 2007.
That, the audit objection cannot be held as sacrosanct gfren the fact that the applicant was retired from service w.e.f. 12.6.2009.
4 o.a. 350.288.2013 : 7 Per contra, the respondents tave filed a very brief reply wheçeftom and 7 also from the oral submissions, no rationale could be deduced as to why the period from 12.11.99 to 22.12.2005 was treated as dies-non and why the applicant's services were treated as relinquished w.e.f. 14.11.2000.
ISSUES The two issues for deciding the instant application are as follows:-
What should be the effective date of VRS of the applicant? Can the period from 14.11.2000 to 22.12.2005 be treated as dies- non?
FINDINGS 6(i) The applicant, admittedly, had sought VRS w.e.fi 11.11.1999 viØe his letter dated 4.1.2000 (Anneure "A-6" toltrj tdpg to the applicant, his date of release from Doordarsaknd[a Oaswas 2.i&e000 (Anneure "A-4" to the41 however, it is seen the O.A.). On closer s , rq?y 0 A boordarsan Kendra, that the applicant Kolkata w.e.f. the forJdW of 12 J On 26.12.2005,1l aj)' a t issued not$r nofice seeking VR w.e.f. 31.3.2006 (Annexure "A'%.j tiZd.A.Y%Lth,4fl the synosis to the pleadings, the applicant has state,nticad" been asked to sumit a fresh notice for VR, no document has been provided in the pleadings to substantiate the fact that there was any such direction from the respondents. Subsequently, on 7.3.2006, the applicant submitted another representation (Anne*ure "A-8" to the O.A.) modifying lhis earlier representation dated 26.12.2005 and seeking Voluntary Retirement from 1.7.2006.
To decide on the issue as to what should be the effective date of VRS of the applicant, we refer to the provisions of 48A of CCS (Pension) Rules, which states as follows:-
"48-A. Retirement on completion of 20 years' qualifying service o.a, 350.288.2013 5 ii (1)At any time after a Goverhment servant has completed tvienty years' qualiing seice, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service.
Xxxxxxxxxxxxxxx (2)The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the Appointing Authority:
Provided that where the Appointing Authority does not refuseto grant the permission for retirement before the expiry of the period spcified in the said notice, the retirement shall become effective from the date of expiry of the said period.
Xxxxxxxxxxxxxxx"
In Tek Chand v. Dib Ram (2001) 3 SCC 290, a 3 Judge Bench of the Honble Apex Court had listed three categories of rules relating to voluntary retirement as follows Where voluntary retirmei into force on expiry of notice period;
Where retirenL%om an'ççd •r is passed during the
notice period withholdi g-t D ret;
Voluntary retrhrent does permission to this
effect is grantdb9,;
In P. Lal v. Union a "In Ia I was held by the Hon'ble
Apex Court that the effective date retirement is the day when the
Govt. accepts such application and not from the date of comrhunication of acceptance and in A.K. Bindal v. U.O.I. (2003) 5 SCC 163 as well as in Gopal Chandra Misra (1978) 2 SCC 301, it has been held that the date of effect of voluntary retirement becomes effective from the date of actual release by the employer and not merely the date of acceptance of the offer of resignation.
In K.L.E. Society v. Dr. R.R. Patil (2002) 5 SCC 278, it was held that upon accepting the money due, the jural relationship between employer & employee ceases to exist.
In this case, following the above ratio, the jural relationship between the respondent and applicant ceased to exist on the date when he was declared as 6 o.a. 350.288.20413 7 relieved of his duties upon acceptance of his voluntary retirement from service and in the context of the instant applicant, the material date was 12.6.2009 as noted in Annexure A-10 to the O.A. The said order relieving the , applicant is reproduced as under:
PRASAR BHARATI (Broadcasting Corporation of India) OFFICE OF THE CHIEF ENGINEER (EAST ZONE) ALL INDIA RADIO & TELEVISION, KOLKATA Akashvani Bhavan1 3rd Floor, Eden Gardens, 1(3)12009-S Dated: 12/06/2009 OFFICE ORDER In compliance with the Directorate's Office Order No. 12/3/2p06-S-lV(B) dated 4/6/09 Dhruba Sen, SEA of this office hereby stands relieved of his duties on acceptance of his Voluntary-Retirement from service in the afternoon of 12.6.09. t\ fltStraiN.\ He should return CGHS Card and other articles, if issued tp h this place and ensure that no dues includiri it him.
This issues withthc Kolkata.
RK. Biswas)
\\ ctor EngineerAdmn.)
Chief Engineer (EZ)"
If we refer to the ore (Pension) Rules a question
may arise that as because the concerned authority did not refuse to grant permission for retirement before the expiry of the period specified in various notices issued by the applicant from time to time namely in Annexure A-6 and A- 8 of the O.A, whether the date of voluntary retirement shall be considered to have been effective from the date of expiry of the said period. The ansWer will be in the negative in this context as because the applicant himself has kpt revising his notice at intervals. Also the applicant was never formally relieved by the respondents and there was no cessation of the employer employee relationship until order dated 12.6.2009, the applicant having been formally relieved by the respondents on grounds of voluntary retirement, the date of his voluntary 7 o.a. 350.288.2013 (1987 retirement would be 12.6.2009. In, Balaram Gupta v. Union of Ipdia / / Supp. Sc 228) the applicant withdrew his offer seeking voluntary retirement prior to the date wherefrom voluntary retirement was prayed for. The coqrt held that. he was entitled to do so.
In this applicatiop, the applicant had initially served a notice dated 4.1.2000 intending to voluntarily retire w.e.f. 11.11.1999. Such retrospective bffer cannot qualify as a notice to retire voluntarily, as there was no advance notice served by the applicant. Regarding his final notice dated 7.3.2006, including to retire w.e.f. 1.7.2006, the matter was brought before the Tribunal in O.A. No. 1907 of 2008 12.6.2009;
and reportedly during pendency, his prayer for VR was accepted on he was relieved on the same' date. His earlier prayer dated 26.12.2005 stood modified in his final notice datedt.0t0ttra(/\\ Hence, in this context, in our considered view, as the jural: relationship between the respondent and applicant came to an end on 1216.2009, the applicant having been formally relieved by the respondents on grounds of voluntary retirement, the date of his voluntary retirement would be 12.6.2009 and the respondents are directed to process, his retiral benefits, jif any due, accordingly.
(U) Regarding the period treated as dies-non, the extracted rovisiofls of DOP&T O.M. No. 13026/3/2010-Estt.(L) dated 22 June, 2010 reads as follows:- 11
xxxxxXXXxXXxxXXXXxX "5. The consequences and procedure to be followed in respect of an officer who is dbseht from duty without any authority has been brought out under FR 17(1) and 17-A. As per FR 17-A(iD) without 1972, remaining prejudice to the provisions of Rule 27 of the central Civil Services (Pension) Rules, 1 absent without any authority or deserting the post, shall be deemed to cause an intdwptjpn or break in the service of the employee, unless otherwise decided by the competent authority; for the purpose of leave travel concession quasi-permanency and eligibility for appearing in department examinations, for which a minimum period of continuous service is required.
6. Comptroller and Auditor General have issued orders that the period of absence not covered by grant of leave shall have to be treated as "dies non" for all purposes, viz., increment, leave and pension. Such absence without leave when it stands singly and not in continuation of any authorized leave of absence will constitute an interruption of service for the purpose of penslor and unleBs the pension sanctioning authority exercises its powers under Article 421, civil Service Regulations (ow Rule 27 of the CCS (Pension) Rules) to treat the period as leave without allowance, the entire past service will stand forfeited.
xxxxxxXXXXXX xxxxXxXXXXX xx
Xxxxxxxx xxxxxxx xxxxx
ol 8 o.a. 50.288.2013
ISIMMI R. NAKRA,
stated as
/ In his rejoinder tiled on 10.2.2014 the applicant himself has
follows:-
13, your
In refereflcet0 the contentions made in paragraph 12 "7.
petitioner states that the issue of non performance of duties from 12.11.1999 to 23.12.2005 already stands decided vide order dated 1.10.2009 (Annexure A-12) issued under authority of responent No. 3, being the competent authority more so being upheld by the Hon'blE Tribunal in its order dated 19.3.2010 (Annexure A-10)."
ders of this In the context of such admtssion by the applicant and the Ør Tribunal dated 19.3.2010 in O.A. No. 1007 of 2008 the applicant i once again given liberty to represent .before the respondent authoritiS for retiral benefits/relief within one month of the date of receipt of a copy of his order and the respondents are directed to pass a reasoned order as per lw within one month of receipt of such represehtation While deciding on the representationi the respondents will note that the date of applicants voluntary Iretirement has been decided as 12.6.2009 i.e. the date of cesatiOn of relationshiP and also that the applicant had been permitted to rejoin his duties w.e.f. 23.1.2005 (FM) vide Respondents' order dated 21.2.2006 (Annexure A-7 to the O.A.)., The O.A. is allowed. There will be no order on costs 'as) (Dr. Nandita Chatterjee) mber Administrative Member 139