Central Administrative Tribunal - Delhi
Gauri Shankar Daksh vs Union Of India: Through on 9 January, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.773/2010 New Delhi this the 09th day of January, 2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Gauri Shankar Daksh, S/o Shri Shiv Prakash, Retd. Income Tax Officer, R/o 1067/Gata Ashram TIla, Mathura. ..Applicant (By Advocate Shri B.S. Mainee with Ms. Meenu Mainee) Versus Union of India: through 1. Secretary, Ministry of Finance, North Block, New Delhi. 2. Chairman, Central Board of Direct Taxes, North Block, New Delhi. 3. Chief Commissioner of Income Tax, Ayakar Bhawan, Civil Lines, Kanpur 4. Commissioner of Income Tax-II, Ayakar Bhawan, Sanjay Place, Agra. -Respondents (By Advocate Shri V.P. Uppal) O R D E R Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
(i) release the amount of pension of the applicant from the date of retirement to the date of payment with interest;
(ii) release the amount of gratuity/DCRG of the applicant from the date of retirement till the date of payment with interest;
(iii) release the amount of leave salary with interest;
(iv) release the amount of insurance with interest;
(v) all communication of pension as per rules with interest.
2. The grievance of the applicant in this case is that although he has sought voluntary retirement from service on and from 01.06.2009 after putting in 30 years of unblemished service with the respondents, respondents are not releasing the retiral benefits. At this stage, few relevant facts, necessary for determination of the matter in dispute, may be noticed. Applicant pursuant to his transfer order and posting order issued by the Chief Commissioner of Income Tax, Kanpur reported for duty on 26.02.2009 in the office of Additional CIT, Range-4, Agra to join as TRO-4, Agra. Simultaneously, applicant also submitted an application for voluntary retirement dated 26.02.2009, addressed to CCIT, CCA, Kanpur. From the material placed on record it is also evident that after joining as TRO-4, Agra, applicant proceeded on medical leave w.e.f. 020.3.2009 to 09.04.2009 vide his application dated 26.02.2009 followed by a revised medical leave for 84 days w.e.f. 02.03.2009 to 24.05.2009 vide his application dated 27.04.2009, which was followed with further revised medical leave for 89 days w.e.f. 02.03.2009 to 29.05.2009 (pre-fixed 28.02.2009 & 31.05.2009 being Saturday & Sunday and suffixed 30.05.2009 & 31.05.2009 being Saturday & Sunday)) vide his application dated 25.05.2009. However, since the applicant has proceeded on medical leave without sanction he was also issued charge-sheet dated 26.05.2010, i.e. one year after the effective date of voluntary retirement application of applicant on 01.06.2009. However, the request of the applicant for voluntary retirement from service under Rule-48 of the CCS (Pension) Rules, 1972 was rejected vide letter dated 29.05.2009 on the ground that vigilance clearance is pending against applicant before the Chief Commissioner of Income Tax, CCA, Kanpur, which is necessary for availing voluntary retirement for claiming the benefit at the time of superannuation. Thus, according to the respondents voluntary retirement of the applicant cannot become effective from 1.6.2009 till vigilance clearance is obtained from CCIT, CCA, Kanpur. According to applicant the letter dated 29.05.2009, rejecting the application of the applicant for voluntary retirement, was received by the applicant on 02.06.2009, after applicant has already retired on 01.06.2009. Thus, according to the applicant, he has already retired from service pursuant to the aforesaid voluntary retirement notice; as such it is not permissible for the respondents to withhold his retiral benefits. It is on the basis of these facts applicant has filed this OA praying for the aforesaid reliefs.
3. Respondents have filed reply where the facts, as stated above, have not been disputed. The reason for not entertaining the request of the applicant for voluntary retirement, as given in the reply-affidavit, is to the effect that vigilance clearance has not been received from the Directorate of Income Tax by that time, as some complaints received against him were pending and enquiries were under progress. A formal charge was contemplated against the officer, which was finally issued by the CIT-II, Agra and served upon the officer before the date of his superannuation on 31.05.2010. Thus, according to the respondents since the disciplinary proceedings are pending against the applicant and in view of the provisions laid down in DoP&T OM dated 14.12.2007 vigilance clearance has not been granted to the applicant vide order dated 11/14-06-2010. Thus, according to the respondents retiral benefits could not be released to the applicant. Regarding service of notice on the applicant before 01.06.2009 the date when the retirement notice was to become effective, respondents have stated that the order rejecting the request of the applicant for voluntary retirement dated 29.05.2009 was delivered at his residential address at 1067, Gatashram Teela, Mathura through registered AD dated 29.05.2009. Applicant refused to receive a copy of the above letter separately kept in a closed cover bearing dispatch No.501/660 of the same date i.e. 29.05.2009 from dispatch section of the office of the CIT-II, Agra. The above facts reveal that the refusal letter was issued on 29.05.2009, a copy of which is annexed as Annexure R-3 well within the specified period of the said notice and an other copy thereof intended to be personally served upon the applicant was refused by him on the same date, which amounts to be valid service of the said office letter dated 29.05.2009. Since, in the instance case, the competent authority has issued an order to the contrary before the expiry of the period of the notice, the Government servant may not presume acceptance and the retirement shall not be effective. A notice of voluntary retirement given after completion of 20 years of qualifying service requires acceptance by the appointing authority.
4. Applicant has filed rejoinder, thereby reiterating that the letter dated 29.05.2009 was received by applicant on 02.06.2009 after applicant has already retired.
5. In order to see whether the letter was in fact issued and dispatched to applicant on 29.05.2009 the record was summoned. This Tribunal after perusal of the record vide order dated November 3, 2011, passed the following order:
The respondents have produced the original records for our perusal, which show that the letter was dispatched to the applicant on 29.5.2009 as per the entry made in the diary register at Sl. No.661. Along with the records, the respondents have also produced one envelope whereby an endorsement has been made by Shri Devinder Kumar, Peon on 29.5.2009 to the effect that the applicant has refused to receive the letter.
6. We have heard learned counsel of the parties and gone through the material placed on record. Before proceeding with the matter, relevant statutory provisions may be noticed. It is admitted case between the parties that the applicant sought voluntary retirement under Rule 48 of the CCS (Pension) Rules, 1972, as the applicant has already completed more than 30 years of qualifying service and the applicant has not sought any retirement under Rule 48-A, where Government servant can seek retirement on completion of 20 years qualifying service. The sole question, which requires our consideration in this case, is whether it was necessary to withhold permission for voluntary retirement, once the applicant, who has sought retirement under Rule 48 on completion of 30 years of qualifying service in terms of the aforesaid Rule, and if so, under what contingencies such permission can be withheld?
7. In order to decide the said controversy it will be useful to quote the relevant portion of Rule-48, which thus reads:
48. Retirement on completion of 30 years qualifying service (1) At any time after a Government servant has completed thirty years qualifying service--
(a) he may retire from service, or
(b) xxx xxx xxx And in the case of such retirement the Government servant shall be entitled to a retiring pension:
Provided that
(a) a Government servant shall give a notice in writing to the Appointing Authority at least three months before the date on which he wishes to retire; and
(b) xxx xxx xxx Provided further that where the Government servant giving notice under Clause (a) of the preceding proviso is under suspension, it shall be open to the Appointing Authority to withhold permission to such Government servant to retire under this rule:
8. Thus, as can be seen from the extracted portion of Rule 48, it is evident that there is no provision in the Rules to withhold permission except where a Government servant, who has given a notice of voluntary retirement, is under suspension.
9. At this stage, it may also be useful to quote Rule 48-A of the Pension Rules, which deals with retirement of Government servant on completion of 20 years of qualifying service and thus reads:
48-A. Retirement on completion of 20 years qualifying service (1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service.
xxx xxx xxx (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 refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
10. In terms of the provisions contained in Rule 48-A right to voluntary retirement is not conferred on employee in absolute terms, as mandated in Rule-48 ibid, except where a person is under suspension and notice of voluntary retirement given under sub rule (2) of Rule 48-A mandates that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. As already stated above, the applicant has not sought retirement under Rule 48-A, where acceptance of retirement notice is mandatory and in case the appointing authority refuses to grant such permission, in that eventuality a specific order has to be passed before expiry of the period of such notice. As can be seen from the stand taken by the respondents in pra-4.9 of the reply-affidavit respondents have proceeded to decide the case of the applicant in terms of the provisions contained in Rule 48-A, whereas admittedly the applicant has given notice in terms of Rule-48 and not in terms of Rule 48-A. Thus, the stand taken by the respondents in para-4.9 that a notice of voluntary retirement given after 20 years of qualifying service requires acceptance by the appropriate authority is without basis and contrary to the mandate of Rule 48 ibid. Thus, the question whether the acceptance was conveyed prior to the date when notice for voluntary retirement became effective w.e.f. 01.06.2009 is of no consequence. Admittedly, applicant was neither under suspension at the relevant time nor any enquiry was pending against him. Further, the stand taken by the respondents that some complaints were pending against the applicant and enquiries were under progress, as such permission was withheld is contrary to the material placed on record. Applicant has retired on superannuation on 30.05.2010. The charge-sheet, which was issued to the applicant 05 days prior to his retirement vide memorandum dated 26.05.2010, pertains to his absence from duty without sanction of the medical leave when the applicant applied for medical leave w.e.f. 02.03.2009 to 29.05.2009 (pre-fixed 28.02.2009 & 01.03.2009 being Saturday and Sunday and suffixed 30.05.2009 & 31.05.2009 being Saturday & Sunday) i.e. till last date of his voluntary retirement. Thus, the ground taken by the respondents to withhold permission of voluntary retirement on the ground of there being complaints against applicant and enquiries were under progress is without any basis, as neither before the retirement of the applicant nor after retirement any charge-sheet qua this aspect has been issued by the respondents. Hence, we are of the view that the applicant, who has given 3 months notice of voluntary retirement under Rule 48 (1) (a) of the Pension Rules effective from 01.06.2009 stood voluntary retired from that date and the voluntary retirement had already become effective automatically on the expiry of the period specified in the notice dated 26.02.2009, such right of voluntary retirement of applicant became effective automatically and there was no requirement of passing a positive order to withhold the permission in terms of Rule-48 ibid.
11. At this stage, we wish to refer to the decision of the Apex Court in the case of State of Haryana and Others v. S.K. Singhal, 1999 (3) SLJ 194 (SC), whereby the Apex Court held that if the right to voluntary retirement is conferred on the employee in absolute terms by the relevant rules and there is no provision in the rules to withhold permission in certain contingencies, then voluntary retirement will come into effect automatically on the expiry of the period specified in the notice, but if such right to voluntary retirement of an employee, who is under suspension or who is facing disciplinary proceedings, is not conferred in absolute terms but is contingent upon the permission by the Appointing Authority. As already stated above, in this case in terms of proviso to Rule 48 (1) (a) right of a Government servant, who is under suspension pending voluntary retirement from service, is contingent upon order of acceptance being passed by the appointing authority. Since applicant was not under suspension, no such order of acceptance was required to be passed by the appointing authority in the present case. Respondents have wrongly invoked the provisions of Rule 48-A, where voluntary retirement from service is contingent upon acceptance of notice of voluntary retirement in order to become effective before the expiry of the period specified in the said notice before retirement became effective.
12. For the foregoing reasons, OA is allowed. Applicant shall be deemed to have been retired from service after expiry of the period specified in terms his application for voluntary retirement dated 26.02.2009. The charge-sheet issued vide memorandum dated 26.05.2010 after a period of one year of voluntary retirement of applicant is of no consequence, as applicant stood already retired from service, in terms of the provisions contained in Rule-48 of the Pension Rules. Respondents are directed to release retiral benefits to the applicant expeditiously, and in any case, within a period of 02 months from the date of receipt of a copy of this order. However, the question of entitlement of applicant to interest on retiral benefits is kept open. No costs.
(Mrs. Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.