Central Administrative Tribunal - Allahabad
Ram Sagar vs General Manager N C Rly on 14 February, 2019
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Dated: This the 14th day of February 2019
HON'BLE MR. RAKESH SAGAR JAIN, MEMBER - J
Original Application No. 380 of 2013
Ram Sagar aged about 56 years son of Shri Harbansh Ex. Helper
Grade-1/Chlorinator Operator under SSE (Works) North Central
Railway, Mirzapur R/o Village Murajpur, P.O. Bihasara District
Mirzapur.
...........Applicant
By Advocate: Shri Anand Kumar/Shri Sudama Ram
Versus
1. Union of India through General Manager, N.C. Railway,
Allahabad.
2. Divisional Railway Manager, N.C. Railway, DRM's Office,
Allahabad.
3. Senior Divisional Personnel Officer, North Central Railway, DRM's
Office, Allahabad.
4. Senior Divisional Engineer-1, North Central Railway, DRM's
Office, Allahabad.
5. Assistant Divisional Engineer, North Central Railway, Mirzapur.
. . . Respondents
By Adv: Shri L.M. Singh
ORDER
1. The present Original Application has been filed by the applicant Ram Sagar under section 19 of Administrative Tribunals Act, 1985 seeking following reliefs:-
"(i) The Hon'ble Tribunal may graciously be pleased to direct the respondents to allow pension and to pay all settlement dues viz. DCRG, commutation of pension, GIS and leave encashment to the applicant acceptance of his voluntary retirement 2 with effect from 04.01.2013 i.e. on expiry of three months' notice period under Rules.
(ii) The Hon'ble Tribunal may graciously be pleased to grant 12% interest on all delayed settlement dues including pension, P.F. commutation of pension with exemplary compensation for making harassment.
(iii) Any other suitable order or direction which the Hon'ble Tribunal may deem fit and proper in the circumstances of the case, be issued.
(iv) Award cost in favour of the applicant".
2. Case of applicant is that after completing more than 20 years of service and attaining the age of 55 years, applicant gave a notice for voluntary retirement on 01/04.10.2012 by registered post on the ground of serious ailment in terms of Rule 1802 (b) (1) of I.R.E.C Vol-II and also averred that at the time of applying for voluntary retirement, applicant was not under suspension and no case of disciplinary proceeding or SPE/Vigilance was pending against him.
3. It is the further case of applicant that after the expiry of the statutory period of three months given in Rule 1802 (b) (1) of I.R.E.C Vol-II, no response being given by the Appointing Authority/Respondent, the retirement of applicant becomes effective on the expiry of the said period of three months. It is a case of applicant that it is settled law that Government servant giving notice may presume acceptance and his retirement is effective in terms of notice since the competent authority has not issued any order to the contrary before the expiry of the period of three months of notice as ordained by Rule 1802 (b) (1) of I.R.E.C Vol-II. It has been further averred in the O.A. that despite his voluntary retirement coming into effect, the respondents have failed to pay his monetary benefit of his service and therefore, filed the present O.A. for a direction to the respondents to settle his retirement dues.
34. In the counter affidavit, respondents have taken the plea that in his application dated 1/4.10.2012, applicant has given a false designation of the post being held by him and due to his unauthorized absence w.e.f. 16.4.2012, a charge-sheet dated 18.4.2012 under Rule 11 of Railway Servants (Discipline and Appeal) Rules 1968 was sent by Registered Post on two occasions but was unserved as per report of the Postal Department that letter could not be served since the applicant was not available or the house was locked. Therefore, copy of charge-sheet was pasted on the door of house of applicant and since the charge-sheet is pending against the applicant, his application for voluntary retirement is not in accordance with rules, as such, action could not be taken on the basis of voluntary retirement, application being impermissible under law, deserves dismissal.
5. It is the further case of respondents that the voluntary retirement notice dated 01/04.10.2012 was not received in the office. The applicant had given an application dated 01.10.2012 for voluntary retirement which was received in the office but since the applicant was unauthorizedly absent from duty w.e.f. 16.4.2012, no action was taken by the department.
6. I have heard Shri Sudama Ram, learned counsel for the applicant and Shri L.M. Singh, learned counsel for the respondents and gone through the pleadings on record as well as written arguments filed by learned counsel for the applicant.
7. The admitted fact of the case is that application dated 01.10.2012 for voluntary retirement was received by the respondents but no action was taken on the said application i.e. to refuse or accept.
48. The limited question involved in the present O.A. is whether in absence of refusal of permission to retire, the application for voluntary retirement on expiry of period of three months is deemed to be accepted or not.
9. In the present case, applicant filed two applications seeking voluntary retirement. The receipt of first notice dated 01/04.10.2012 is denied by respondents in para No. 19 of the C/A but accept the receipt of the said notice in para No. 25 of the C/A and they admit the receipt of the application dated 01.10.2012 regarding the request of voluntary retirement. The respondents however, taken various pleas in their counter affidavit to say that the application for voluntary retirement could not be considered.
10. However, the non-consideration of application for voluntary retirement by the respondents on the basis of the pleas taken in the counter affidavit and non-passing of order, as contended by the respondents has no force of law and to be rejected. Regardless of any circumstances, it was incumbent upon the respondents to pass an order upon the application within the period of three months. On this point, reference may be made to State of Haryana v/s S.K.Singhal, 1999 SCC (L&S) 859 wherein the Hon'ble Apex Court in almost similar facts held that:
"13. Thus, from the aforesaid three decisions it is clear that if the right to voluntarily retire is conferred in absolute terms as in Dinesh Chandra Sangma case [Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441 :
1978 SCC (L&S) 7] by the relevant rules and there is no provision in the rules to withhold permission in certain contingencies the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. If, however, as in B.J. Shelat case [B.J. Shelat v. State of Gujarat, (1978) 2 SCC 202 : 1978 SCC (L&S) 208] 5 and as in Sayed Muzaffar Mir case [Union of India v. Sayed Muzaffar Mir, 1995 Supp (1) SCC 76 : 1995 SCC (L&S) 256] the authority concerned is empowered to withhold permission to retire if certain conditions exist, viz., in case the employee is under suspension or in case a departmental enquiry is pending or is contemplated, the mere pendency of the suspension or departmental enquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on the expiry of the period specified. What is further needed is that the authority concerned must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in B.J. Shelat case [B.J. Shelat v. State of Gujarat, (1978) 2 SCC 202 : 1978 SCC (L&S) 208] and in Sayed Muzaffar Mir case [Union of India v. Sayed Muzaffar Mir, 1995 Supp (1) SCC 76 : 1995 SCC (L&S) 256] before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non-communication of acceptance should be treated as amounting to withholding of permission."
11. During the course of the argument, the learned counsel for the applicant referred to Rule 1802 of Indian Railways Establishment Code (hereinafter referred to as the 'Rules), which reads as below:-
XX XX XX XX "(b) (1) Any railway 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 6 attaining the age of 35 years) and in all other cases after he has attained the age of 55 years:
Provided that it shall be open to the appropriate authority to withhold permission to a railway servant under suspension who seeks to retire under this clause".
12. Under Rule 1802, sub-rule (b), at any time after attaining the age of 55 years, a railway servant may by giving notice of not less than three months' in writing to the appropriate authority retire from service. In the proviso to sub-rule (b), it is clearly stated that it shall be open to the appropriate authority to withhold permission to a railway servant under suspension who seeks to retire under this Rule.
13. It is not disputed that the appointing authority did not refuse to grant the permission for retirement before expiry of the period specified in the said application dated 01/04.10.2012 given by applicant. Further, no communication whatsoever was made by respondents to applicant within the said period refusing his request for voluntary retirement.
14. Shri Sudama Ram, learned counsel for applicant relied heavily on Union of India v. Sayed Muzaffar Mir, 1995 SCC (L&S) 256 which dealt with question of notice of voluntary retirement under Rule 1802 of Indian Railways Establishment Code. In the said case, the Hon'ble Supreme Court of India held that:-
"4. There are two answers to this submission. The first is that both the provisions relied upon by the learned counsel would require, according to us, passing of appropriate order, when the government servant is under suspension (as was the respondent), either of withholding permission to retire or retaining of the incumbent in service. It is an admitted fact that no such order had been passed in the present case. So, despite the right given to the appropriate/competent authority in this regard, the same is of no avail in the present case as the right had not 7 come to be exercised. We do not know the reason(s) thereof. May be, for some reason the authority concerned thought that it would be better to see off the respondent by allowing him to retire.
The second aspect of the matter is that it has been held by a three-Judge Bench of this Court in Dinesh Chandra Sangma v. State of Assam [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] , which has dealt with a pari materia provision finding place in Rule 56(c) of the Fundamental Rules, that where the government servant seeks premature retirement the same does not require any acceptance and comes into effect on the completion of the notice period. This decision was followed by another three-Judge Bench in B.J. Shelat v. State of Gujarat [(1978) 2 SCC 202 :
1978 SCC (L&S) 208] .
The period of notice in the present case having expired on 21-10-1985, and the first order of removal having been passed on 4-11-1985, we hold that the Tribunal had rightly come to the conclusion that the order of removal was non est in the eye of law."
15. It would be fruitful to refer to Tek Chand v. Dile Ram, (2001) 3 SCC 290, wherein the Hon'ble Apex Court held that:
"33. It is clear from sub-rule (b) of the Rule that the appropriate authority is required to accept the notice of voluntary retirement given under sub-rule. It is open to the appointing authority to refuse also, on whatever grounds available to it, but such refusal has to be before the expiry of the period specified in the notice. The proviso to sub- rule (2) is clear and certain in its terms that it is open to the appropriate authority to withhold permission to the employee seeking retirement under this clause if the said employee is under suspension. If the appointing authority 8 does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement sought for becomes effective from the date of expiry of the said period."
16. In the present case, admittedly, the appropriate authority did not refuse to grant the permission for retirement to applicant before the expiry of the period specified in the notice dated 01/04.10.2012. In fact, the respondents, as per, the proviso to Sub-Rule (b) could have withheld the permission to retire if the applicant was under suspension, however, there is nothing on record to show that applicant was placed under suspension and even so, it was obligatory for the respondents to pass a speaking order withholding permission to retire and communicate the same to the applicant, if the applicant was under suspension so, as to follow principles of natural justice.
17. In the instant case, even though it be accepted that applicant was served with a charge sheet during this period under Rule 11 of Railway Servant (Discipline and Appeal) Rules, 1968, but was not placed under suspension to give discretion to the appropriate authority to withhold the application/notice of voluntary retirement. The competent authority did not pass any order rejecting his offer of voluntary retirement and nor passed any order withholding his offer of voluntary retirement. The applicant, therefore, had a right as provided in the Rules to voluntarily retire and so, the permission deemed to be granted under the Rules on the expiry of three months.
18. The applicant by a letter dated 01/04.10.2012 had given a three months' notice to the Railways to retire from service as envisaged by Rule 1802(b) of Indian Railways Establishment Code. The period of three months had expired on 03.01.2013. It was incumbent upon the respondents to reject or issue any order within the mandatory period of three months. Having failed to do so, the notice for voluntary retirement attained 9 finality on 03.01.2013 and it shall be deemed that the applicant has retired voluntarily from service on the expiry of three months from the date of submission of application for voluntary retirement and is entitled to all the benefits, as may be admissible under law along with interest @ 6% per annum, which shall be settled within a period of 3 months from the date of receipt this Order. O.A. is accordingly allowed. No order as to costs.
(RAKESH SAGAR JAIN) MEMBER-J Manish/-