Central Administrative Tribunal - Jabalpur
Rajendra Soni vs Comptroller And Auditor-General Of ... on 11 May, 2018
1 OA No.202/00205/2016
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING: GWALIOR
Original Application No.202/00205/2016
Gwalior, this Friday, the 11th day of May, 2018
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Rajendra Soni, Aged 58 years, S/o Late Shri R.P. Soni
Occupation: Service, Senior Accountant No.03/4620
In the Office of Accountant General-2(A/E)
Gwalior R/o Parakh Ji Ka Bada, Lashkar
Gwalior (M.P.) PIN 474001 -Applicant
(By Advocate -Shri Jitendra Sharma)
Versus
1. Union of India, through the Comptroller
& Auditor General of India, 9 Deen Dayal
Upadhyay Marg, New Delhi 110124
2. The Accountant General (A/E)-II, Lekha Bhawan,
Jhansi Road, Gwalior 474002 - Respondents
(By Advocate -Shri M.K. Sharma)
(Date of reserving the order:11.01.2018)
ORDER
By Navin Tandon, AM:-
Being aggrieved by the order dated 04.08.2015 the applicant has filed this Original Application whereby the respondent No.2 has rejected the application for grant of voluntary retirement of the applicant.
2. The brief facts of the case are that the applicant was holding the post of Senior Accountant in the office of Accountant General- Page 1 of 9 2 OA No.202/00205/2016 II (A/E) Madhya Pradesh, Gwalior. Since he was not feeling well, he applied for grant of voluntary retirement w.e.f.05.08.2015 by submitting his application dated 22.04.2015. Due to ill health, he had applied for medical leave from June 2015 producing medical certificates. On 04.08.2015, the respondents rejected the application for grant of voluntary retirement by passing a non- speaking order. Hence, this Original Application.
3. The applicant has sought for the following reliefs:-
"8.1 That, the present application filed by the applicant may kindly be allowed.
8.2 That, the impugned order dated 04.08.2015 Annexure A/1 passed by the respondents may kindly be directed to be set aside.
8.3 That, it may be held that the application submitted by the applicant dated 22.04.2015 for grant of voluntary retirement stood accepted by completion of three months on 23.07.2015 and by that date the applicant is entitled for all pensionary benefits and post retiral benefits to the applicant along with interest at the rate of 18% per annum with effect from 23.07.2015.
8.4 That, any other just, suitable and proper relief, which this Hon'ble Tribunal deems fit, may also kindly be granted to the applicant. Costs be also awarded in favour of the applicant."
4. Learned counsel for the applicant has submitted that he has applied for grant of voluntary retirement w.e.f. 05.08.2015 on 22.04.2015. A day before the due date of retirement i.e. on 04.08.2015, the impugned order (Annexure A-1) has been passed Page 2 of 9 3 OA No.202/00205/2016 whereby the application submitted by him on 22.04.2015 for voluntary retirement has been rejected by the respondents on administrative grounds by passing a non-speaking order. 4.1 The applicant further submitted that according to the rules in vogue the application for voluntary retirement if not decided within a period of three months the same stood accepted and therefore passing of the order dated 04.08.2015 after three months w.e.f. 22.04.2015 is of no consequence and the impugned order dated 04.08.2015 is therefore, unsustainable in the eyes of law. He further submitted that the applicant has completed 37 years in service and accordingly he is entitled for grant of voluntary retirement under Rule 48 of the Central Civil Services (Pension) Rules, 1972 as well as on the basis of Fundamental Rules 56(k) (1). 4.2 The applicant further submitted that he was neither under suspension nor any disciplinary proceedings were initiated against him during the period from 22.04.2015 to 04.08.2015
5. On the other hand the respondents have submitted that complaints from retired employees were received against the applicant vide letters dated 15.05.2015 and 16.06.2015. Therefore, a memo dated 13.07.2015 (Annexure R-3) was issued to the applicant directing him to submit his explanation within a period of Page 3 of 9 4 OA No.202/00205/2016 05 days. However, he did not submit any reply to said memo. Thereafter a charge sheet dated 09.02.2016 (Annexure R-4) under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was issued. However, it was returned undelivered (Annexure R-5). Thereafter, the respondents conducted ex parte enquiry and order dated 17.03.2017 was passed holding that the charges leveled against the applicant were proved and under Rule 12 of the CCS(CCA) Rules, 1965 he has been awarded major penalty of dismissal from service.
5.1 Further, applicant had attended the office regularly during the month of April 2015 (Annexure R-1). During the period from 22.04.2015 to 04.08.2015, applicant availed commuted leave for 12 days from 18.05.2015 to 29.05.2015, earned leave for 08 days from 04.06.2015 to 11.06.2015, commuted leave for 19 days from 12.06.2015 to 30.06.2015, earned leave for 01 day i.e. 13.07.2015 and commuted leave for 21 days from 14.07.2015 to 03.08.2015. After availing these spells of leave, he was declared fit to join duty. Thereafter he continuously remained absent from his duties and all communications sent at the address given in the leave application/service book were received back undelivered. Page 4 of 9 5 OA No.202/00205/2016 5.2 As a further action in the departmental inquiry, inquiry officer and presenting officer have been appointed on 09.03.2016 (Annexure R-6 and R-7). These orders also have been received back undelivered in the office of Respondent No.2 (Annexure R-8 & R-9).
5.3 As per provisions contained in CCS (Pension) Rules 1972, competent authority is required to inform the decision taken on the notice before the expiry of the period of notice and not within three months from the date of receiving notice. Applicant was informed on 04.08.2015 before the expiry of period specified in the notice i.e.05.08.2015 that his application for grant of voluntary retirement has not been accepted.
6. Heard the learned counsel for the applicant and respondents and perused the pleadings and documents annexed therewith.
7. In the instant case we find that the applicant had served a proper notice of voluntary retirement on 22.04.2015 (Annexure R-
2) under Rule 48/48-A of the Central Civil Services (Pension) Rules, 1972 to be effective from 05.08.2015. The date of birth of the applicant is 01.02.1958 and he had completed 55 years of age and 37 years of service at the time of serving of notice. Thus he was fully eligible to serve the notice of voluntary retirement and Page 5 of 9 6 OA No.202/00205/2016 the same did not require any permission of any authority, as it is an admitted fact that the applicant was neither under suspension nor any charge sheet was issued to him before the date of expiry of the notice period i.e. 05.08.2015. In terms of provisions of Rule 48 of the CCS (Pension) Rules,1972 at any time after a Government servant has completed thirty years' qualifying service he may retire from service, provided that he shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and provided further that where the Government servant giving notice is under suspension, it shall be open to the appointing authority to withhold permission to such Government servant to retire under this rule.
8. If for the sake of arguments it is accepted that the case of the applicant is governed under FR 56(k)(1), as he had already completed 55 years of service, we also find that Fundamental Rule 56 (k)(1) reads thus :-
"F.R. 56 (k) (1) Any Government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years, if he is in Group 'A' or Group 'B' service or post, (and had entered Government service before attaining the age of thirty-five years), and in all other cases after he has attained the age of fifty-five years :
Provided that -
(a) Not printed (Since Clause (a) has been deleted) Page 6 of 9 7 OA No.202/00205/2016
(b) nothing in the clause shall also apply to a Government servant, including scientist or technical expert who (i) is on assignment under the Indian Technical and Economic Co-
operation (ITEC) Programme of the Ministry of External Affairs and other aid Programmes, (ii) is posted abroad in a foreign-based office of a Ministry/Department and (iii) goes on a specific contract assignment to a foreign Government unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year; and
(c) it shall be open to the Appropriate Authority to withhold permission to a Government servant, who seeks to retire under this clause, if-
(i) the Government servant is under suspension: or
(ii) a charge-sheet has been issued and the disciplinary proceedings are pending; or
(iii) if judicial proceedings on charges which may amount to grave misconduct, are pending.
9. On perusal of the above provisions of FR 56 (k)(l) we also find that FR 56(k)(1) also stipulates that the appropriate authority may withhold permission to a Government servant, who seeks to retire under this clause, if - (i) the Government servant is under suspension: or (ii) a charge-sheet has been issued and the disciplinary proceedings are pending; or (iii) if judicial proceedings on charges which may amount to grave misconduct, are pending. In the instant case we find that none of these conditions was fulfilled in the case of the case of the applicant for withholding his voluntary retirement.
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10. Thus, in view of the discussions made here-in-above and after carefully going through the provisions of both Rule 48 of the CCS (Pension) Rules, 1972 and FR 56(k)(1) we are of the considered view that the impugned order dated 04.08.2015 (Annexure A-1) passed by the respondents rejecting the request of the applicant for voluntary retirement on administrative grounds is totally illegal and cannot be sustained in the eyes of law, as there is no such provision either in Rule 48(ibid) or under FR 56(k)(1) to withhold permission of voluntary retirement on administrative grounds.
11. Before the matter is parted with we may observe that since we have held above that the applicant shall be deemed to have retired voluntarily on expiry of the notice period, and though the applicant has not challenged specifically in this OA the charge sheet dated 09.02.2016 and dismissal order based on that charge sheet, the same should be treated as non-est in the eye of law, as the same had not the sanction of the President under the provisions of Rule 9(2)(b) of the CCS(Pension) Rules, which is pre-requisite for taking any disciplinary action against a retired government servant.
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12. In the result, the Original Application is allowed. The impugned order dated 04.08.2015 is quashed and set aside. The notice of voluntary retirement submitted by the applicant dated 22.04.2015 be deemed to be accepted on completion of the notice period and consequently the applicant shall be entitled to all pensionary benefits. He shall also be entitled to interest on the retiral benefits as per the prevalent rules in force. The respondents are directed to grant all the retiral benefits within a period of 90 (ninety) days from the date of communication of this order. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
RKV
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