Central Administrative Tribunal - Hyderabad
A M Sirish vs M/O External Affairs on 14 August, 2018
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH : HYDERABAD Original Application No.733/2018 Date of Order : 14.08.2018 Between : A.M. Sirish,S/o A.M. Krishna, Aged about 46 years, Occ : Assistant (under VRS}, Regional Passport Office, Hyderabad, Réo 12-13/309,St.No. 19, Tarnaka, Hyderabad. .. Applicant And L. Union of India, Rep. by Officer on Special Duty (CPO & HAJ), Ministry of External Affairs, Patiala House Annexe, Tak Marg, New Delhi. 2. The Joint Secretary (PSP] & Chief Passport Officer, Ministry of External Affairs, Patiala House Annexe, Tilak Marg, New Delhi. 3. The Regional Passport Officer, Regional Passport Office, Hyderabad, 8-2-2315 to 219, Adj. to Prashant Theatre, Kummaraguda, Secunderabad, . Respondents Counsel for the Applicant ws Mr. K.Sudhakar Reddy, Advocate Counsel for the Respondents... NWrA Surender Reddy, Addl CG&SC bar ig CORAM: Hon'ble MrJustice R.Kantha Rag. «© Member (ludl.) Hon'ble Mr.B.V.Sudhakar » Member(Admnj ORAL ORDER
{ As per Han'ble MeJustice R.Kantha Rao, Member {Judi.) } Heard MrK. Sudhakar Reddy, learned counse! for the applicant and Mr.A Surender Reddy, learned standing counsel for the respondents.
2. The applicant while he was working as Assistant in Regional Passport Office, Hyderabad applied for voluntary retirement on 01.01.2015 under Rule 48 {A} af CCS {Pension} Rules, According to | him he was unable to bear the harassment of a superior officer and being under lot of pressure he became sick with stress, anxiety and severe hack pain, he took a decision for taking voluntary retirement and thereby issued notice under Rule 48-A of CCS (Pension) Rules. The apolication for voluntary retirement was accepted by the Ministry vide letter dated 17.02.2015 which shows that the applicant stood relieved of the duties wed, 31.03.2015. Subsequently on the very same day Le. on 31.03.2015 an office merna was issued to the applicant to surrender the Government belongings which has been complied with by him. Under Rule 48 -A of CCS (Pension) Rules, after the request of the applicant's voluntary retirernent he was entitled to pensionary benefits basing on the length of service rendered before the acceptance of voluntary retirement.
3. it is submitted by the applicant that even though his voluntary retirement was accepted, he was. not paid any pension or pensionary benefits. Thereafter he- submitted representations dated 04.11.2015, 08.01.2016, 16.03.2016 and 24.08.2016. in spite of the representations the pensionary benefits were not granted him. The applicant in the representation dated 24.08.2016 and also in representation dated 14.09.2017 requested the respondents to allow him to join duty. The respondents ultimately by order dated 02.05.2018 informed the applicant that in view of the shortfall in the mandated minimum qualifying service of 20 years required for eligibdity for pension and pensionary benefits as per CCS (Pension) Rules, the competent authority in consultation with the department of Pension and Pensioners Welfare and Department of Personnel and Training has not acceded to his request for reinstatement inta Government service. Assailing the sald order the applicant filed the present OA.
4. The applicant admittedly issued three months notice to the respondents by following CCS (Pension) Rules stating that he had completed 20 years of qualifying service. The respondents also accepted the version of the applicant as that he had completed 20 years of qualifying service and permitted é .. ne a a Lan 30f 12 [Clee ae for voluntary retirement. The dispute arose when the respondents did not grant. pensionary benefits to the applicant. 'The version of the applicant is that he was harassed by one of the respondents by prolonging the issue of acceptance of voluntary retirement and also denying him the pensionary benefits till date. Therefore in the present OA he seeks a direction to the respondents to permit him te rejoin the duties. --
5. The respondents in their reply statement contended inter alia as follows ¢ The respondents stated that on several occasions the applicant remained absent unauthorizedly from duties Le. from 04.09.2006 to 07.09.2007 (1 year and 3 days}, from 11.09.2007 to 17.09.2007 ( 4 days} and for a period of 1 year 2 months and 21 days je.. from 20.09.2007 to 11.12.2008, A departmental enquiry was held and he was found guilty of the charges. The disciplinary authority imposed major penalty of reduction to lower stage vide Ministry's order dated 03.04.2013. The applicant preferred an appeal against the said penalty order and the Appellate Authority rejected the aopeal vide order dated 03.04.2013. Agerieved thereby he filed OA.1278/2013 and this Tribunal upon hearing the OA on merits set aside the penalty order dated 03.04.2013 which was confirmed by the Appellate Authority vide order dated 05.07.2013 and also held that the applicant is entitled for all consequential benefits. Against the said order passed é ~ Sat ane aceamoaat ed dofl2 | by the Tribunal the Ministry of exter : Affairs filed Writ Petition No.28888/2015 before the Hon'ble High Court of Hyderabad which is stHl pending. The submission of the learned counsel for the respondents that there is no interim order passed by the Hon'ble High court suspending the order passed by this Tribunal in OA.1278/2013.
&. Nextly it is contended by the respondents that the applicant was unauthorizedly absent for a period of 1 year and 3) days from 04.09.2006 to 07.09.2007, 4 days from 11.09.2007 to 17.09.2007 and also 1 year 2 months and 2i days from 20.09.2007 to 11.12.2008. During the above period of unauthorized absence, the applicant had also travelled abroad for a period of 14 days which was confirmed by the Bureau of Immigration. According to the respandents the abroad travel was without any prior approval from the competent authority and ts | in violation of CCS (Conduct) Rules, 1964.
7. The main version of the respondents with regard to the delay in processing of his pension papers iS that the process for grant of pension was initiated in May 2015. However, due to the unauthorized absence of the applicant for long periads on two occasions, the processing touk time. One spell (1 year 2 months and 21 days) of his unauthorized absence was considered as dies-non and another spell could net be regularized as the applicant had unauthorizeldy travelled abroad during that period. They further submitted that under Rule 48 AC of CCS (Pension) Rules, it is the duty of the employee to ensure that he has. completed 20 years of qualifying service before giving notice of voluntary _ retirement. in the present case the applicant failed to follow the Rule 48 -A of CCS iPensian) Rules.
&. it is further submitted that the Ministry in consultation with OoPT and Department of Pension and Pensioners' Welfare had explored the possibility of regularization of his unauthorized absence so that his qualifying service may be made 20 years as required to make him eligible for pension and pensionary benefits under OCS (Pension) Rules. During the period of unauthorized absence in the year 2006 to 2007 the applicant also travelled abroad for a period of 14 days as has been confirmed by the Bureau of immigration. The above travel was without any prior approval fram the cornpetent authority. Moreover, he did nat submit any representation regarding the regularization of the said period. Therefore the period of 1 year and 3 days could not be regularized. it is also the version of the respondents that in respect of the 1 year 2 manths and 21 days the unauthorized absence was also not regularized since the charges have been proved against him, the period has been treated as dies-non and therefore the absence during the said period also cannot be said to be authorized.
Sati?
AGS:
gq, The contention pension of the applicant could not be granted in view of the unauthorized absence on several occasions which resulted in not completing continuous 20° | years service which is a requirement to make him eligible for pension and pensionary benefits on acceptance of the voluntary retirement and therefore the relief sought for by the applicant cannat be granted. The respondents sought for dismissal of the OA.
10. The learned counsel for the applicant contended that though the applicant applied for voluntary retirement on 01.01.2015, the order accepting his voluntary retirement was passed only on 31.03.2015 and thereafter in spite of his.
repeated representations, the respondents did not sanction penalonary benefits and ultimately relected his request for penalanary benefits and therefore he is.
entitled to rejoin duty. On the other hand it is contended by the learned counsel appearing for the respondents that it is the duty of the applicant to verify the qualifying service before issuing natice under Rule 48 -A of CCS (Pension) Rules and the applicant without verifying the same issued notice for voluntary retirement and subsequently it was found that he had nat completed requisite years of qualifying service for grant of pension on his voluntary retirement.
"afthe learned counsel for the respondents is that.
ti. Sefore averting to the rival contentions, it is necessary to look into, the provisions of Rule 48 -A of CCS (Pension) Rules. Under the provision the' Government servant who has completed 20 years of quallying service may issue notice of nat less than 3 months in writing to the competent authority requesting him to retire from service. Though as per sub-rule (2) of Rule 48-A the notice of voluntary retirement given under sub-rule {1} shall require acceptance by the Appointing Authority, the proviso lays dawn that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the neriod specified in the said notice, the retirement shall become effective from the | date of expiry of the said period, Under sub-rule (2) of Rule 48, a Gavernment servant who has elected to retire under this rule and has given the necessary intimation to that effect to the Appointing Authority shall be precluded from withdrawing his election subsequently except with the specific approval af such authority, provided that the request for withdrawal shall be within the Intended date af his retirernent.
12. From the provisions therefore even if the compstent authority does not accept the request of the voluntary retirement made by the employee within the specified period, it comes into effect after the expiry of the specified period even though the employee was not intimeted about the acceptance of voluntary retirement. oa Government servant intends to withdraw the request of voluntary retirement within the perind specified In sub-rule 4 of Rule 48-A it is left [1z777FK Safle gp Sake Spe Tg to the decision of the competent authority to accept or not to accept. Therefore by virtue of the provisions of Rule 48-A strictly speaking once an application for voluntary retirement is made by the applicant and the same has been accepted by the competent authority it becomes irrevocable.
13. However, the prayer made by the applicant in the present OA has to be examined in the light of the peculiar facts of the present case. Even though. the applicant is under the impression that he had completed 20 years of qualifying service 50 as it enables him to issue notice which is contemplated under Rule 43-A_ for voluntary retirement, the department is also under the obligation to verify and find out as to whether he has completed 20 years of service, before accepting his request for voluntary retirement. ff we examine the facts of the present case, jt is obvious that the penalty imposed by the applicant with regard to the unauthorized absence was set aside by the Tribunal in OA.1278/2013 and against the said order the Ministry of External Affairs filed Writ Petitian No. 28888/2015. lt is stil pending before the Hon'ble High Court, Hyderabad. The period of unauthorized absence was not regularized by the department. Even though the applicant made an application by merely counting the completed years of service, it is the duty of the respondents to examine the same whether in view of the unauthorized absence of the applicant, it is necessary to regularize his leave. period to enable him to take voluntary retirement under CCS (Pension) Rules. The respondents however accepted the voluntary retirement of the applicant on Sole 31.03.2015. Thereafter they did not grant pension and pensionary benefits to the Shaw applicant because of the unauthorized absence of the applicant. An important. | fact which has to be taken into account js that ultimately the respondents have 'not granted pension to the applicant_on the ground that he did not have the requisite service under Rule 48-A of CCS (Pension) Rules. The applicant has categorically stated in the GA that the respondents refused to grant pensionary benefits fo him and at the same time they also did not permit the applicant to rejoin the duty.
414. Fram the facts asserted by both the parties in their respective pleadings, it is clear that the applicant did not have the requisite completed years of service which would enable hir to apply fer voluntary retirement. Therefore the acceptance of the three months notice of the applicant by the Yespondents:
itsalf is not valid. Though strictly speaking once request of the employee for voluntary retirement is accepted, it cannot be reconsidered, In view of the: peculiar facts in the present case it has to be examined whether the applicant can be permitted to rejoin the duty.
15. In this context ft is relevant to refer to the judgement of the Hon'ble High Court of Tripura in WR{ C) Ne.53/2016 in the case of Nariprada Chowdhary Vs. State of Tripura & Others which is exactly an identical facts. The x ra -sebacaaahs * , HWeofiz i Vee. ote fat paennenee the "Ht is an admitted fort that voluntary reflrement can be accepted only on completion af 20 years of cantinucus. service and the respondent should net have accepted the prayer of voluntary retirement before completion of 20 years of service.
However, the petitioner wes alsa not supposed ta make a prayer of voluntary retirement before completion af 2G years of service. it shaws the ignorance of goth the petitioner as well as the respondent no.4 while making a prayer of voluntary retirement as welf as accepting the prayer of valuntery retirement. Under such circumstances, the Directar General of Police propased re- emplaywnent of the petitioner in the ariginal post which he was occupying, the Home Department regretted the propasal without GAY Teas or). :
jt was concluded holding that
16.
the prayer of the applicant in the present OA also. The order of acceptance of the voluntary retirement fs set aside.
"Taking inte account the foctuol situations and legal positions as discussed herein before f am of the considered opinion that the petitioner's prayer for rejoining the post from which he Nes surrendered shauld be allowed. The respondents are directed to allow the petitioner to rejoin his post Le. Havildar iGO) wef 01.03.2014 on Ais refund of the amount which he has olready received towards Jeave encashment, GIS, Provisianal Peasion and GPF ofc within 30 days from today and the period fram O01.03.2014 fo the date of rejaining should be adjusted against Als available odmissible leave or the leave which may Be credited in Ais accaunt in future and the petitioner shall not be entitled to salary or other monetary benefits fer the period he was not in service. The perfad should be taken to account for the pensionary benefits of the petitioner"
Therefore, following the above judgement, we are inclined to allow ltefis The respondents are directed to allow the:
his voluntary retirement, he is directed to refund the same to the responde "within 30 days from the date of passing of this order. However, it is made clear that the applicant is net entitled to salary or other manetary benefits for the period he was not in service. The said period shall be taken into account for the pensionary benefits of the applicant.
17. OLA. is allowed accordingly. There shall be no order as to costs.
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