Skip to content


S.R. Mohapatra Vs. Union of India Through Secretary, New Delhi and Others - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal Principal Bench New Delhi
Decided On
Case NumberOA No.1757 of 2011 MA No. 1386 of 2011
Judge
AppellantS.R. Mohapatra
RespondentUnion of India Through Secretary, New Delhi and Others
Excerpt:
v.n. gaur, member (a). ma no. 1386 of 2011 the present application filed for condonation of delay is allowed.     oa no.1757/2011 the present oa has been filed with the following prayer: (a). call for the records of the case. (b)  direct the respondents to release and pay all legal dues of the applicant along with interest thereon at the rate of 18% per annum from 10.1.2009, i.e. after expiry of statutory notice period of three months from the date of notice of voluntary retirement, i.e. 10.10.2008. (c)  quash and set aside the removal order no. p/ubl/227/gaz/optg/ubl/srm along with order no. e(o)i/2007/pu-2/swr/50 dated 19.10.2009 issued by dy. secretary/e(o)i, railway board, ministry of railways, govt. of india, against the applicant by the disciplinary authority being non-est in.....
Judgment:

V.N. Gaur, Member (A).

MA No. 1386 of 2011

The present application filed for condonation of delay is allowed.     OA No.1757/2011

The present OA has been filed with the following prayer:

(a). Call for the records of the case.

(b)  Direct the respondents to release and pay all legal dues of the applicant along with interest thereon at the rate of 18% per annum from 10.1.2009, i.e. after expiry of statutory notice period of three months from the date of notice of voluntary retirement, i.e. 10.10.2008.

(c)  Quash and set aside the removal order No. P/UBL/227/GAZ/Optg/UBL/SRM along with order No. E(O)I/2007/PU-2/SWR/50 dated 19.10.2009 issued by Dy. Secretary/E(O)I, Railway Board, Ministry of Railways, Govt. of India, against the applicant by the disciplinary authority being non-est in the eyes of law as the same has been passed after the retirement of the applicant.

(d)  Direct the respondents to pay all the retiral dues, namely, pension etc. along with interest at the rate of 18% per annum from the date the applicant has retired.

(e)  Award exemplary costs of the proceedings.

(f)  Pass such further order or orders which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.

2. The case of the applicant is that in view of his voluntary retirement notice dated 10.10.2008 he had deemed retired after the standard notice period of 3 months, much before the respondent no.1 imposed on him the penalty of removal from service vide order dated 10.10.2009. That order of the disciplinary authority therefore is non-est in the eyes of law.

3. The relevant facts of the case in the background of the prayer of the applicant and the ground taken as aforesaid are that the applicant, an IRTS officer of 1983-84 batch, while working under respondent no.2, applied for sanction of two years study leave on 18.11.1998 for pursuing a course of PG Diploma in CFA in the institute of Chartered Financial Analyst of India. The study leave was sanctioned by the competent authority for a period of 24 months vide memorandum no. P/GAZ/5608/GA/ SRM dated 10.05.2000. The applicant instead of proceeding on study leave represented vide its letter dated 08.06.2000 that he intended to take study leave for the course sanctioned, which was open-ended round the year after the issues mentioned in the said representation were settled by the administration. On 25.06.2001 the applicant informed the department that he had already taken the admission and paid the fees as well as executed the relevant bond documents with the South Central Railway and the course was to begin from 09.07.2001. The applicant got relieved on the same date. Later the study leave so sanctioned vide memorandum dated 10.05.2000 was cancelled vide letter no. P/GAZ/508/TC/SRM dated 24.9.2001 by the respondent no.2 advising the applicant to report for duty immediately for further posting order. The applicant filed OA-222/2002 before Hyderabad Bench of this Tribunal and got interim stay on 21.02.2002 on the order of cancellation of study leave issued by respondent no.2. Vide its order dated 03.01.2003 the Hyderabad Bench of this Tribunal allowed the OA-222/2002 quashing the order dated 24.09.2001 and 07.11.2001 and directing the respondent no.2 to allow the applicant to avail the study leave sanctioned vide order dated 10.05.2000 and pay the salary to which the applicant was entitled within a period of two weeks. The respondent no.2 challenged the Tribunals order dated 03.01.2003 before the Honble High Court of Judicature Andhra Pradesh at Hyderabad in Writ Petition no. 3085/2003. The respondent no.2 issued an order on 26.03.2003 transferring the applicant to South Western Railway, Hubli and relieving him with immediate effect to carry out the transfer. The Honble High Court vide its order dated 01.08.2003 upheld the order passed by this Tribunal dated 03.01.2003. The applicant claims to have reported to respondent no.2 after completion of his study leave and availing some earned leave on 29.08.2003 for posting orders. The respondent no.1 vide its letter no. E(O)-III-2003/TR/203 dated 08.12.2003 directed respondent no.2 to regularize the study leave period from 09.07.2001 to 09.07.2003 in pursuance of directions of Honble High Court of Andhra Pradesh. The applicant filed a CP no.11/2004 on 28.01.2004 in the Hyderabad Bench of this Tribunal alleging non-compliance of its order dated 03.01.2003 in OA-222/2002. The applicant also challenged the transfer order dated 26.03.2003 before this Tribunal in OA No.296/2004. Respondent no.2, in pursuance of directions dated 01.08.2003 issued by Honble High Court in WP(C) No.3085/2003, also issued a show cause notice to the applicant as to why the study leave granted on 10.5.2002 be not cancelled. On 04.03.2004 through an order passed in CP-11/2004 the Tribunal directed respondent no.2 to make payment of outstanding dues on account of salary to the applicant by 01.04.2004. In OA 296/2004 the Tribunal passed the following order on 17.03.2004:

In the result, this OA is disposed of holding that the impugned transfer order dated 26.03.2003 ceased to be in operation and the same cannot be enforced against the applicant. The respondents are directed to issue fresh posting orders to the applicant. The applicant has to apply to the competent authority for sanction of leave, if any leave is available to his credit and if no leave is available to the credit of the applicant, the said period is to be treated as leave without pay. There shall be compliance of this order by the respondents within a period of two weeks from the date of receipt of copy of this order.

4. The respondent no.2 vide its order dated 26.03.2004 after giving personal hearing to the applicant issued order cancelling the study leave granted vide letter dated 10.05.2000. By another order dated 15.04.2004 in CP No.11/2004 in OA-222/2002 this Tribunal held that In view of the above subsequent development brought to our notice, we find that the respondents are entitled to withhold the payment of salary for the leave period. The respondent no.2 vide order dated 148/2004 dated 16.04.2004 again transferred applicant to South Western Railway, Hubli. The CPO, South Western Railway issued a letter dated 27.05.2004 to the applicant enquiring as to why he had not reported to that office and advised him to report for duty immediately. The applicant vide his letter dated 06.05.2004 to CPO, South Central Railway, Secunderababd made the following request:

With reference to the above order please see my letter requesting for relieving orders.

I may please be provided with an opportunity to see my service register, which as per rules is my right.

I may be provided a copy of LPC made out to South Western Railway, which has so far been denied to me.

5. He also informed CPO, South Western Railway vide his letter dated 11.05.2014 and 05.06.2014 that he was awaiting necessary relieving orders from the South Central Railway authorities and, therefore, was unable to join at the new place of posting. The applicant filed another OA-1042/2004 challenging the order dated 26.03.2004 passed by respondent no.2 thereby cancelling the study leave issued by their letter dated 10.05.2000. In the meantime, the applicant was served a memorandum of charge sheet dated 10.06.2005 by respondent No.3 imputing that though the applicant received transfer order dated 16.04.2004 transferring him from South Central Railway, Secunderabad to South Western Railway, Hubli, he did not join and remained absent unauthorisedly till date.

6. This Tribunal vide order dated 10.02.2005 closed the CP no.11/2004 holding that no contempt had been made out. The applicant filed MA no. 655/2005 in CP no.11/2004 seeking revival/reopening of CP which was rejected by this Tribunal vide order dated 06.10.2005. The applicant has challenged this order of the Tribunal before Honble High Court of Judicature Andhra Pradesh in WP(C) no.26025/2005.

7. Respondent no.3 vide letter dated 30.08.2005 appointed an Inquiry Officer under Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968 for initiating the disciplinary proceedings. The applicant submitted his reply to the charge memo dated 10.06.2005 vide his letter dated 22.11.2005. He, however, did not appear before the I.O. despite reminders on 23.11.2005, 15.12.2005, 01.01.2006, 17.02.2006 and advice on phone (as recorded in the report of the I.O.) and therefore I.O. proceeded with the inquiry ex parte on 04.05.2006, and held the charges as proved. The I.O.s report was sent to applicant vide letter dated 07.11.2006. According to the applicant, during the period 18.11.2006 to 1.6.2007 he submitted several letters to the respondent no.3 requesting for time to submit his reply to the enquiry report as the documents asked by him were not supplied by the Inquiry Officer. On 10.10.2008 the applicant submitted a letter seeking for voluntary retirement from service. It is the claim of the applicant that the standard notice period of three months expired on 10.01.2009. The applicant did not receive any communication from the respondent no.1 in respect of his letter dated 10.10.2008. It is the claim of the applicant that in terms of para 11.1 and 11.4 of the Master Circular no.35 of the Railways, he was deemed retired with effect from 10.01.2009. The applicant received a letter dated 12.08.2009 issued by respondent no.2 with an order from the respondent no.1 dated 19.08.2009 imposing the penalty of removal from service by the disciplinary authority. The applicant submitted several representations to the concerned authorities and after obtaining necessary documents he filed this OA for redressal of his grievances.

8. According to the learned counsel for the applicant the following issues needed to be considered by this Tribunal:

(1). Whether in the present case voluntary retirement is automatic and comes into force on the expiry of notice period;

(2). Whether in the present case voluntary retirement comes into force on the expiry of notice period unless an order is passed within the notice period withholding permission to retire;

AND

(3). Whether in the present case voluntary retirement does not come into force unless permission to this effect is specifically granted by the controlling authority.

He submitted that the applicant had completed more than 20 years of qualifying service for the purpose of pension and other retiral benefits and fulfill the pre-condition for giving notice for voluntary retirement by a government servant. According to the Indian Railway Establishment Code Rules 1801 and 1802, a Railway employee who has completed the prescribed number of years in his age or who has completed the prescribed number of qualifying service could give notice of three months that he would voluntary retire on the expiry of the said period of three months. Learned counsel relied on the pronouncements of Honble Supreme Court in the following cases:

1. Dinesh Chandra Sangma vs. State of Assam and Ors., 1977 (4) SCC 441.

2. B.J.Shelat vs. State of Gujarat and Ors., 1978 (2) SCC 202.

3. Union of India vs. Sayed Muzaffar Mir, 1996 Supp (1) SC 76.

4. State of Haryana and Ors. Vs. S.K.Singhal, JT 1999 (3) SC 140.

9. According to the learned counsel, as the appropriate authority did not communicate either acceptance or rejection of voluntary retirement of the applicant, the applicant would be taken as deemed retired after the expiry of notice period of three months. Resultantly, the removal order passed by the respondent no.1 much after the applicant was deemed retire was non-est in the eyes of law.

10. Relying on the case of State of Haryana and Ors. Vs. S.K.Singhal, it has been submitted that even though the concerned authorities had power to withhold permission to retire, they must also communicate the same to the employee before the expiry of the notice period specified for voluntary retirement. The applicant has referred to Railway Establishment Rules (Master Circular no.35) which stipulates three months notice in writing to the appointing authority by the government employee after completing 20 years of service for voluntary retirement.

11. The learned counsel for the applicant also challenged the validity of the disciplinary proceedings on the grounds that

(a). The respondents did not apprise UPSC abut the voluntary retirement notice of the applicant while seeking opinion on the I.O.s report.

(b).not communicating the opinion of UPSC to the applicant prior to passing of removal order

(c).not supplying certain documents required for his defence.

12.  The applicant has also mentioned that despite the transfer order dated 16.04.2003, as per the rules, the applicant was not relieved from South Central Railway. LPC of the applicant was not available in South Western Railway till the year 2007, which is in violation of Rules of Transferring officer.

13.  In another written submission filed on 7.10.2013 the applicant had taken the following additional grounds in support of his contention that he had completed 20 years qualifying service and was eligible to apply for voluntary retirement:

1. The period from 12.08.1998 to 24.08.1998 treated as waiting for orders and 25.08.1998 to 15.11.1998 treated as leave due.

2. 17.04.2004 to 10.10.2008 - the applicant was transferred vide order dated 16.04.2004 without relieving him. He immediately made a representation on 05.05.2004 and subsequent representation dated 05.06.2004.

3. The amended rules regarding grant of study leave within India issued by Railway Board dated 12.02.2002 and earlier rules.

4. The applicant vide his application dated 06.05.2004 requested to see his service register, which is till date denied to him.

14.  The respondents in their counter have taken the preliminary objection of laches on the ground that the applicant has challenged the removal order dated 19.10.2009 while the OA was filed on 06.05.2011. It has also been submitted that respondent no.3, i.e. UPSC is not a necessary party in the present OA. According to the learned counsel for respondents, the fact was that the applicant after receiving the revised transfer order dated 16.04.2004 neither reported for duty at South Western Railway nor at South Central Railway and remained absent continuously from 17.04.2004 and was now making a stale claim of not having been relieved by the SCR to enable him to join the new place of posting. He was accordingly issued charge sheet for major penalty on 10.06.2005. The said charge sheet was sent to his postal address as the applicant did not report for duty. He submitted his written explanation to the charge memorandum on 07.07.2005 after which the competent authority appointed an Inquiry Officer on 30.08.2005. The enquiry was fixed on 23.11.2005 but the applicant did not turn up for enquiry on that date. Subsequently, it was fixed on 04.05.2006. The inquiry had to be conducted ultimately ex-parte as despite sufficient notice the applicant did not attend the enquiry. The enquiry officer in his report found the charges against the applicant as proved. The Inquiry Officers report dated 25.07.2006 after its acceptance by the competent authority was forwarded to the applicant on 04.11.2006. The applicant acknowledging the receipt of the same on 18.11.2006 sought minimum period of 45 days for filing written brief on the report of the Inquiry Officer. He again on 14.04.2007 sought further time to submit his written statement. Since the applicant did not submit his written statement, the respondent no.3 recommended the penalty of removal from service on which the advice of the UPSC was sought by respondent no.1. Subsequent to the advice of the Commission dated 09.06.2009, the penalty of removal from service was imposed on the applicant on 19.10.2009. During the pendency of disciplinary proceedings initiated against him, he submitted an application for voluntary retirement on 10.10.2008.

15.  According to the learned counsel, the application for voluntary retirement submitted by the applicant was not a valid one as it was conditional. The scheme of voluntary retirement is applicable only to those who have rendered not less than 20 years of qualifying service (Para 11 of Master Circular No.35 Annexure A/22). A Railway servant who desires to retire voluntarily after 20 years of qualifying service should give a notice of 3 months in writing to the appointing authority. Before serving the notice of Voluntary Retirement, a Railway servant should satisfy himself by means of reference to the appropriate administrative authority that he has completed 20 years of service qualifying for pension. The applicant who entered into the service of Railways on 25.08.1984 submitted his voluntary retirement request on 10.10.2008. But he was on leave without pay from 28.09.1987 to 05.02.1988, unauthorisedly absent from 08.09.1995 to 11.08.1998, again on leave without pay from 25.08.1998 to 15.11.1998 and unauthorisedly absent from 17.04.2004 onwards. Since these periods of leave without pay and unauthorized absence are considered as non-qualifying service, the applicant did not have the minimum qualifying service of 20 years for submitting the voluntary retirement request.

16.  In his written submission the respondents have framed the following issue:

The issue raised is as to whether a notice of voluntary retirement submitted is valid in the absence of requisite years of service [20 years as per Rule 48A of CCS (Pension Rules) put in by the Government Servant as per Pension Rules.

17.  We have carefully perused the records, documents and written submissions placed before us and considered the arguments advanced by learned counsels from both the sides. With regard to laches, we condone the delay of about a month in filing this OA. The main issue to be considered is:

whether the voluntary retirement of the applicant had become effective before the imposition of penalty of dismissal imposed by the disciplinary authority.

18. The relief sought by the applicant focuses on the deemed voluntary retirement of the applicant after expiry of 3 months notice period from the date of notice of voluntary retirement, i.e. 10.10.2008. The second prayer of the applicant starts with assumption that the voluntary retirement had become effective before the imposition of the penalty of dismissal and, therefore, it had automatically becomes nonest in the eyes of law. Learned counsel for the respondents had raised as one of his contentions that the applicant had not questioned the penalty order issued by respondent no.1 dated 19.10.2009. It is also supported by the fact that in the OA not even one ground has been given questioning the validity of the disciplinary enquiry or the order passed by the disciplinary authority except mention of allegations like non-supply of documents in para 4.27 to 4.36. However, no legal ground has been taken by the applicant subsequently. Even in the prayer clause (c) the quashing of the removal order has been sought on the ground that the same has been passed after the retirement of the applicant. In the issues framed in the written argument submitted by the applicant there is no issue relating to the disciplinary proceeding. Therefore, we would be examining the validity of the voluntary retirement request submitted by the applicant.

19. The relevant provision as contained in the Master Circular No.35 of the Railways is reproduced below:

11.1. A Railway servant desirous of retiring voluntarily after twenty years of qualifying service/service should give a notice of three months in writing to the appointing authority. A notice of less than three months may also be accepted by the appointing authority in deserving cases. Before serving the notice of voluntary retirement, a Railway servant should satisfy himself by means of a reference to the appropriate administrative authority that he has completed twenty years of service qualifying for pension/service of twenty years for purposes of Special Contribution to Provident Fund, as the case may be.

11.2. xxx xxx xxx

11.3. Where proceedings under the Railway Servants (DandA) Rules are pending or contemplated as for a major penalty against the Railway servant who has given notice of voluntary retirement and the disciplinary authority, having regard to the circumstances of the case, is of the view that the penalty of removal or dismissal from service would be warranted in the case or in cases where prosecution is contemplated against the railway servant concerned or may have been launched in a Court of law acceptance of the notice would require the approval of the Minister in charge in regard to Group A andB railway servants and that of the General Manager in the cases of Group C andD railway servants. Therefore, in the cases of Group A and B officers, the General Manager, while making a reference to the Railway Board for advice, should indicate whether departmental/vigilance/SPE investigations or consequential DAR proceedings are pending or contemplated against the officers concerned for the imposition of a major penalty and whether removal or dismissal from service would be warranted in the case(s).

11.4. A railway servant giving notice of voluntary retirement the acceptance of which requires appointing authoritys approval, may presume acceptance of the notice and the retirement shall be effective in terms of the notice, unless the competent authority issues an order to the contrary, before the expiry of the period of notice.

11.5. In all other cases of Gazetted railway servants, where the approval of the Board/Minister is necessary for acceptance of notice, the following instructions, should, be adhered to, in making reference to the Railway Board:

i. On receipt of a notice of voluntary retirement, it should be promptly forwarded, along with specific recommendations of the GM in regard to the acceptance of the notice. This action is to be taken within 2 weeks of the receipt of the notice, to ensure that the Ministry has adequate time to process the case and obtain Ministers approval.

ii. A clear certificate, duly vetted by the FAandCAO should be enclosed, certifying that the officer has completed the requisite period of qualifying service (service in the case of a PF optees) for serving a notice of voluntary retirement.

iii. No condition of any nature, whatsoever, should be attached to a notice of voluntary retirement. Such conditional notices should be rejected at the GMs level.

iv. While recommending the acceptance of the notice, the GM should also indicate whether any disciplinary proceedings are pending or are contemplated against the officer concerned for the imposition of major penalty. If the Railway has no information about any disciplinary proceedings which are pending or contemplated, this fact should be included in the recommendations. Similarly, the recommendation should mention whether prosecution is contemplated, this fact should be included in the recommendations, Similarly, the recommendation should mention whether prosecution is contemplated or has been launched in a Court of law against the officer. If the Railway has no information about any prosecution contemplated or launched, this has also be to be mentioned in the recommendations.

v. If an officer desires that the notice should be accepted before the expiry of the stipulated period of 3 months, he should make it clear in the notice itself.

20. Thus, the first requirement of the voluntary retirement is that there should be a notice of 3 months and it should be addressed to the appointing authority. The applicant also has to satisfy himself about the completion of 20 years of qualifying service. The application should also not be conditional in nature. We may examine the application submitted by the applicant dated 10.10.2008 for voluntary retirement in the aforesaid context. For the sake of easy reference the same is reproduced below:

In consideration of the state of my career and the various complex infirmities as outlined in my representation dated 10.10.2008, I wish to apply for voluntary retirement from service with immediate effect.

I pray only for an objective and unbiased assessment of my representation to facilitate a honourable and just exit.

I pray for an expeditious settlement at the earliest.

21.  It may be seen that the applicant has sought voluntary retirement with immediate effect while the rules require a notice of 3 months. He has also placed a condition of an objective and unbiased assessment of his representation to facilitate an honourable and just exit. The reason of the voluntary retirement is complex information as outlined in his representation dated 10.10.2008. Thus to have a complete appreciation of the request for voluntary retirement one has to read this letter with the letter dated 10.10.2008. We do not find a copy of the representation dated 10.10.2008 referred to in the application for voluntary retirement in the documents placed before us. However, there is a letter dated 09.10.2008 (Annexure 19 of the OA) with the caption Request for consideration of administrative matters an appeal for fair Enquiry. In that letter the grievances of the applicant regarding withholding of increments, fixation of pay and filing of cases by S.C. Railway Vigilance Branch were raised. In our view, the application dated 10.10.2008 did not fulfill the requirement of a proper application of voluntary retirement as envisaged under the rules as it did not mention the notice period and created ambiguity with regard to the reason for voluntary retirement by referring to his representation dated 10.10.2008. Even if we resort to the provision of para 11.5 (v), as reproduced above, in that case the officer has to make a specific mention of the request to reduce the notice period and an explicit order of the competent authority accepting such a request would be necessary. In this case neither there was explicit request to waive the period of notice of 3 months and accept the voluntary retirement with immediate effect nor there was any communication from the competent authority in this regard. The voluntary retirement, therefore, could not have become effective in such a situation.

22.  The second condition of the voluntary retirement is the completion of 20 years of service. The respondents have also raised the contention that applicant had not completed the qualifying 20 years of service on the date of his application. According to the tabulation submitted by the respondents as Annexure R-1 with their counter affidavit, the applicant had qualifying service of 16 years 1 month and 24 days. The periods from 28.09.1987 to 05.02.1988 on account of leave without pay, from 08.09.1995 to 11.08.1998 on account of unauthorised absence, 25.08.1998 to 15.11.1998 on account of leave without pay and from 17.04.2004 to 10.10.2008 on account of unauthorised absence, totalling to 7 years 11 months and 25 days have been treated as non-qualifying service. The applicant has given detailed reasons as to why these periods cannot be counted as non-qualifying service. Before getting into the first three periods of non-qualifying service mentioned earlier, we look at the biggest chunk of alleged unauthorized absence, i.e., from 17.04.2004 to 10.10.2008 totalling to 4 years 5 months and 24 days. Respondents have referred to Railway Services (Pension) Rules, 1993. Para 14 (x) which provides as follows:

Period of unauthorized absence in continuation of authorized joining time or in continuation of authorized leave of absence treated as overstay.

23.  Applicant had on the orders of Honble High Court of Andhra Pradesh and this Tribunal got his study leave till 09.07.2003 regularized and he was expected to report to his parent department. He questioned the transfer order dated 26.03.2003 transferring him to South Western Railway, Hubli which was decided in his favour by this Tribunal vide order dated 17.03.2004. After getting a fresh transfer order dated 16.4.2004 issued by respondents the applicant did not take any action to move to this new place of posting and only represented to respondent no.2 and 3 stating that he was awaiting his relieving order. The fact that emerges from the records is that the applicant after getting the order dated 16.04.2004 neither moved to the new place of posting at South Western Railway nor attended office at South Central Railway. All correspondence had been done from and to his residence. It is, therefore, not understood as to what was the sanctity of relieving order when he did not hold any charge at that time. Relieving order in any case is a prerogative of the employer who may insist that an employee cannot move unless he is relieved with a view to avoid sudden disruption of the work of that seat and to ensure proper having/taking over when the successor joins or other administrative considerations. The employer can direct an employee to move to the new place of posting as was done in this case by making transfer order effective with immediate effect especially when the employee is not having any charge. In such a situation the order itself would become a deemed relieving order if there is no other endorsement in that order. The applicant, on the other hand, did not move to his new place of posting by taking shelter of a technical argument that he was not relieved. Had he been interested, he could have move to the new location on the strength of the immediate effect transfer order. His other requests like issuing of LPC etc. could also be attended to by the concerned authority after he joined at the new place of posting. Issuing of LPC and examination of service book, leave record etc. cannot be made a pre-condition for moving to another place on transfer. He stressed on the requirement of a relieving order to such an extent only to justify his continued absence of more than 4 years after he got his revised transfer order. An officer of his seniority and rank in the Railways who is a part of the higher management of the organization was not expected to avoid joining duty on such a flimsy ground. We are, therefore, of the view that the respondents are within their rights in treating the period of unauthorized absence from 17.04.2004 to 10.10.2008 (4years 5 months 24 days) as non-qualifying service. If this period is deducted from his gross qualifying service of 24 years 1 month and 16 days, his qualifying service comes below the stipulated 20 years of qualifying service for voluntary retirement even after including the other periods of absence that have been disputed by the respondents. We, therefore, do not consider it necessary to examine the contention of the applicant in respect of the other three periods of absence which have been treated as non-qualifying service.

26.  From the preceding discussion, it is clear that voluntary retirement application submitted by the applicant did not fulfil the essential conditions laid down for such an application and hence, was not a valid application as stipulated under the relevant rules. In such a situation, the question of his deemed retirement becoming effective after 3 months of notice period or not acceptance by the competent authority or no communication issued by the authority competent to accept the voluntary retirement application are not relevant.

24.  We have considered the judgments cited by the learned counsel for the applicant. In Dinesh Chandra Sangma (supra) the appellant was a Member of the Judicial Service and after attaining the age of 50 years served notice upon the Government under FR 56 (c) that he proposed for voluntary retirement from service with effect from 02.08.1976. The Government accorded permission and the High Court agreed with the Government. But on 28.07.1976 the Government countermanded its earlier permission and the High Court also gave him a posting. It was held that the High Court had committed an error of law in holding that consent of Government to voluntary retirement was necessary to give legal effect to voluntary retirement of the appellant under FR 56 (c). In S.K.Singhal (supra) the Honble Supreme Court had discussed in detail cases of voluntary retirement where there is an absolute right conferred on the employee to seek voluntary retirement under certain conditions and another category where a positive acceptance of such a request was required from the employer. In Sayed Muzaffar Mir (supra) the employee had given a three months notice to the Railways to retire from service as visualised by Rule 1802 (b) of Indian Railways Establishment Code. The period of three months had expired on 21.10.1985 and the order of removal was first passed on 04.11.1985. The Tribunal had held that the respondent was entitled under the law to seek premature retirement and, therefore, the order of removal has to be treated as non-est in the eyes of law. The Honble Supreme Court had upheld this decision of the Tribunal. In B.J.Shelats case (supra) the Honble Supreme Court had held that if the Government had intention of refusing the permission to voluntarily retire, it was necessary for the authority to pass a positive order withholding permission to retire when the employee had given a notice of voluntary retirement and and communicate the same before the expiry of the notice period.

25.  We find that in the present case the above judgments are not relevant as this is not the case of the applicant that his request of voluntary retirement had been accepted and later on that acceptance was withdrawn as in the case of Dinesh Chandra Sangma (supra). Since in this case we have come to a conclusion that the applicant never submitted a valid request for voluntary retirement, the other judgments dealing with the voluntary retirement becoming effective automatically after notice period or that the Government should communicate its decision before the expiry of notice period etc. would not be relevant.

26.  The applicant in para 8 of the OA has also questioned the removal order passed by respondent no.1 only on the ground that it was non-est in the eyes of law as the same had been passed after the retirement of the applicant. Since we are of the view that his application for the voluntary retirement itself was non-est, the question of removal order issued by the disciplinary authority being non-est on account of his deemed voluntarily retired status does not arise.

28.  In the light of foregoing discussion and for the aforesaid reasons, we find the Original Application devoid of merits and the same is dismissed. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //