Deepak Shah vs The State of Raj. and Others

Veerender Singh Siradhana, J—The instant writ application has been instituted by the petitioner praying for the following relief(s):

"ii) By an appropriate order or direction the respondents be directed to accept the voluntarily retirement of the petitioner with effect from 28.02.2010 holding the communication dated 10.02.2008 to be illegal and unsustainable in the eyes of law.

iii) By an appropriate order or direction the respondents be directed to release all the retiral benefits to the petitioner considering the petitioner deemed to have retired as on 28.02.2010 in view of his notice dated 12.01.2010 and release all his retiral benefits immediately with an interest @ 18% from the date it has become due.

iv) By an appropriate order or direction, the cost of the writ petition may also be quantified in favour of the humble petitioner.

v) By an appropriate order or direction the petitioner may also be granted exemplary compensation in view of harassment caused and mental agony suffered to the extent it is deemed fit by this Hon''ble Court.

vi) Any other order or direction which the Hon''ble Courts deems fit in the interest of justice."

Briefly, the skeletal material facts necessary for appreciation of the controversy needs to be first noticed. The petitioner was initially appointed as Junior Engineer and was promoted in due course of time as Assistant Engineer. He joined the promoted post on 6th May, 1976, while the petitioner was serving as Assistant Engineer at Udaipur, he proceeded on leave w.e.f. 1st May, 2003 up to 3rd May, 2003. The leave was further extended to 21st May, 2003. The petitioner applied for two years leave w.e.f. 21st May, 2003, under the Scheme of ''Special Leave'' wherein ''Special Leave'' could be availed up to a maximum period of five years. The petitioner was also accorded promotion to the rank of Executive Engineer during the period of leave, as would be reflected from the order dated 25th February, 2004 (Annexure-4). The petitioner resumed his duties, as Executive Engineer, at Water Resources Department, Udaipur, in the forenoon of 30th April, 2008. However, since the petitioner was not keeping good health, he applied for voluntary retirement in the month of August, 2008, expressing his willingness to relieve him of the duties w.e.f. 3rd November, 2008. The application was not accepted on the ground of contemplated departmental enquiry and he was served with a charge-sheet vide order dated 21st February, 2008, for unauthorized absence from duty w.e.f. 3rd May, 2003 till 30th April, 2008. The departmental enquiry culminated into a punishment of withholding of three grade annual increments with cumulative effect vide order dated 8th June, 2009 (Annexure-5). The State-respondents, vide order dated 6th August, 2009, observed that the petitioner could be accorded voluntary retirement under Rule 50 of the Rajasthan Civil Services Pension Rules, 1996 (hereinafter referred to as the ''Rules of 1996'', for short) (Annexure-6). The petitioner again made an application dated 31st August, 2009 seeking voluntary retirement w.e.f. 14th September, 2009. The State-respondents, vide communication, dated 31st August, 2009, informed the petitioner that he cannot be permitted voluntary retirement unless he served the penalty imposed by the disciplinary authority of withholding of three grade annual increments with cumulative effect, vide order dated 8th June, 2009, of which the petitioner is aggrieved of.

Learned counsel for the petitioner, reiterating the pleaded facts and grounds of the writ application, strenuously argued that Rule 50 of the Rules of 1996, no where contemplates such a condition where the request of the petitioner, to allow him voluntary retirement could be declined. According to the learned counsel, the guidelines provided under the Government of Rajasthan''s decision, specifically provide that a notice of voluntary retirement served after completion of "fifteen years" qualifying service will require acceptance by the appointing authority and such acceptance is to be allowed generally in all cases except that the Appointing Authority shall withhold permission to retire a Government servant; in the case of a Government servant: (i) who is under suspension, (ii) in whose case the disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case, is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service and (iii) in whose case prosecution is contemplated or may have been launched in a court of law. None of the conditions obtained in the case of the petitioner, and therefore, the action is bad in the eye of law.

It is further contended that under Rule 50 Sub-rule 3(a) further provides that a Government servant referred to in sub-rule (1), is entitled to make a request, in writing, to the appointing authority to accept notice of voluntary retirement of less than three months for reasons stated therein. The appointing authority, in such a situation, subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months.

Referring to communication dated 12th January, 2010, the learned counsel has further submitted that the petitioner again requested the appointing authority to permit him voluntary retirement treating the date of his application for voluntary retirement as 17th August, 2009, and he be permitted to retire w.e.f. 28th February, 2010. Moreover, the petitioner also tendered an amount of Rs. 33,840/- owing to the penalty imposed which was not accepted by the State-respondents. In support of his submissions, the learned counsel has placed reliance on the opinion in the case of Government of India & Ors. Vs. Sqn. Leader A.S. Savant: 1995(S)(3) SCC 555 , Usman Khan Vs. State of Rajasthan and Others, (1992) 2 LLJ 564 : (1991) 2 WLN 147 , Ratti Ram Rathore Vs. State of Raj. & Ors.: 2012 (2) WLC (Raj.) 205 and Chiranji Lal Vs. State of Raj. & Ors.-(102): RLR 1991 (1), 693.

In response to the notice of the writ application, the respondents have filed their counter affidavit stating that the petitioner was found guilty of unauthorized absence from duty and was proceeded with under the relevant rules by way of departmental enquiry which resulted into imposition of a penalty of withholding of three annual grade increments with cumulative effect as would be evident from the order dated 8th June, 2009, which has not been challenged any further by the petitioner. Since the application for voluntary retirement was not submitted incorporating the prescribed period of three months as contemplated under the rule, therefore, his application for voluntary retirement w.e.f. 1st September, 2009, was rightly declined as would be reflected from the communication dated 28th August, 2009 (Annexure-R/3). Again, vide communication dated 26th April, 2010, the State-respondents declined the prayer of the petitioner for voluntary retirement for the date 28th February, 2010, from with the voluntary retirement was sought for, had already passed (Annexure-R/6).

Per contra, Mr. Sanjeev Singhal, Dy. Govt. Counsel, appearing on behalf of the State-respondents reiterating the stand in the counter affidavit and supporting the action of the State-respondents, vide communication dated 10th February, 2010, emphatically argued that the action of the State-respondents in declining the prayer for voluntary retirement cannot be faulted for the petitioner sought voluntary retirement during the period of currency of the penalty imposed, vide order dated 8th June, 2009, of stoppage of three grade increments with cumulative effect and thus, the period of currency of penalty was valid up to June, 2012.

Referring to the Additional affidavit, learned counsel further submitted that the Chief Engineer, Quality Control, vide communication dated 31st March, 2010, called upon the petitioner to join his duties. A notice was also published in the Newspaper ''Hindu'', Chennai Edition, on 24th July, 2010, but the petitioner did not report for duties. As a consequence, the petitioner was proceeded with for misconduct of willful absence from duties vide memorandum dated 7th June, 2011, and enquiry officer was appointed vide office order dated 9th April, 2012. Further, the enquiry proceedings have been concluded and the enquiry officer has returned a finding of guilt on the charges, as would be evident from the enquiry report dated 19th September, 2013. The matter is now pending with the disciplinary authority for imposition of penalty. It is further pointed out that the petitioner reported in the office on 28th May, 2013 and has retired on 31st May, 2013, attaining the age of superannuation. Thus, the writ application deserves to be dismissed on all counts.

I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

Indisputably, a Government Servant, who has completed 15 years of qualifying service, is entitled for premature retirement as contemplated under Rule 50 of the Rajasthan Civil Services Pension Rules, 1996 (hereinafter referred to as ''the Rules of 1996''). At this juncture, it will be relevant to consider the text of Rule 50 of the Rules of 1996, which reads thus:

"50. Retirement on completion of 15 years'' qualifying service:

(1) At any time after a Government servant has completed fifteen years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.

(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 automatically become effective from the date of expiry of the said period.

A glance of the text of Rule 50, as extracted hereinabove, would reveal that the notice for voluntary retirement given under sub-rule [1] is required to be accepted by the appointing authority. If 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 automatically become effective from the date of expiry of the said period.

The guidelines for acceptance of notice, as contemplated under Rule 50, further provides under Clause (3)(a) for a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months for reasons therefor; by the Government Servant. However, in the instant case at hand, the application of the petitioner, seeking voluntary retirement was short of period of ''three months'', and no request was made by the petitioner, in writing, to the appointing authority to accept notice of voluntary retirement of less than ''three months'', furnishing reasons therefor.

Be that as it may, the petitioner subsequently vide communication dated 31st August, 2009, extended the period up to 14th September, 2009, followed by another extension vide communication dated 1st October, 2009 up to 31st October, 2009, and finally, vide communication dated 12th January, 2010, he prayed for voluntary retirement w.e.f. 28th February, 2010.

The only reason for not according permission for voluntary retirement, to the petitioner, as reflected from the material available on record and communication dated 26th October, 2009; is the currency of period of penalty of stoppage of three grade increments with cumulative effect; and therefore, the petitioner could not be permitted voluntary retirement.

On being queried by the Court, the learned counsel appearing on behalf of the respondents, could not point out any specific rule or provision which contained such a prohibition. From the materials available on record, it is reflected that the petitioner desired the voluntary retirement owing to his ill health. The petitioner also offered a sum of Rs. 33,840/- through Demand Draft towards compliance of the order of penalty dated 8th June, 2009, to satisfy the penalty inflicted on him. However, the amount was not accepted.

In the case of Government of India & Ors. (supra), the Hon''ble Supreme Court, while dealing with somewhat similar controversy, observed thus:

"We have heard learned counsel for the appellants and have perused the judgments of the learned Single Judge as well as the Division Bench. Under the rules, release from service can be by resignation, voluntary retirement, removal or dismissal. Para 215 of the regulations governing the Air Force provides for voluntary retirement. It says:

"Voluntary retirement will only be permitted subject to the interests of the service. An officer who had been refused permission to retire voluntarily may, at the discretion of the Government, be permitted to resign his commission."

It will thus be seen that under the said regulation the respondent was entitled to seek voluntary retirement and that could be denied only if the interest of the service so demands. But in the instant case his request for voluntary retirement was not refused on that ground but a condition was imposed that it could be accepted if he gave up his claim in regard to non-effective benefits. There is no doubt that the Division Bench was right in taking the view that he was virtually compelled to forego non-effective benefits if he was keen on seeking premature retirement. The question of waiver being a mixed question of fact and law had to be answered in the backdrop of the attendant facts and circumstances. There were some grievances which were unattended, whatever be the reasons. The respondent was, therefore, unhappy and he decided to bid farewell to the service. It was not correct to impose the condition of giving up non-effective benefits. The short question which had to be answered in this background was whether the letter of 9-6-1978 would tantamount to resignation. The Division Bench came to the conclusion that it was wrong to read the letter as one of resignation and held that the respondent was entitled to premature retirement with consequential benefits. We do not think that this is a fit case for interference under Article 136 of the Constitution. We are, therefore, of the opinion that this appeal must fail. We dismiss the appeal, but make no order as to costs. We grant the appellants time of three months to grant all the monetary benefits available to the respondent on the premise that he was released w.e.f. 1-5-1982."

From a bare glance of Rule 50 of the Rules of 1996, it is not reflected that there is any provision permitting the State-respondents to decline voluntary retirement to the petitioner during the currency of penalty. What is contemplated under Rule 50 of the Rules of 1996, as sustainable reason for withholding permission of voluntary retirement of/apart from ''three months'' notice'', a Government servant, is only in case where the Government servant (i) who is under suspension; (ii) in whose case the disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case, is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service and (iii) in whose case prosecution is contemplated or may have been launched in a court of law.

In the case of Ratti Ram (supra), a Coordinate Bench of this Court, observed thus:

"9. In this view of the matter, I am of the opinion that there is no documentary evidence on record to show that any order of refusal upon the application filed by the petitioner for voluntary retirement was made by the appointing authority. Further, there was no contemplation or pendency of any inquiry for inflicting major penalty on the date when the petitioner filed the said application for voluntary retirement with effect from 01.08.2010, therefore, during the period of notice if any inquiry is contemplated that cannot be taken into account to deny the benefit of voluntary retirement to the employee. Therefore, in this case the claim of the petitioner for voluntary retirement from service with effect from 01.08.2010 is based upon Rule 50 of the Rules of 1996 and as such the respondents are under obligation to treat the petitioner to have voluntarily retired from service with effect from 01.08.2010 because no order was issued either to accept or reject the application for voluntarily retirement.

As a result of the foregoing discussion, this writ petition is allowed. The respondents are directed to treat the petitioner to have voluntarily retired from service with effect from 01.08.2010 and, accordingly, release all retiral benefits in accordance with rules in favour of him. It is made clear that there is no prayer in the writ petition to quash charge-memo Annex.-8 dated 19.07.2010, therefore, the petitioner will be at liberty to challenge the said charge-memo/communication in accordance with law. The retiral benefits of the petitioner shall be released within three months from the date of receiving certified copy of this order."

In the case of Chiranji Lal (supra), dealing with the pari-materia Rule 244(1)(b) of the Rajasthan Service (Classification, Control and Appeal) Rules of 1951, a Coordinate Bench of this Court, held thus:

"7. Rule 244(1) of the Rajasthan Service Rules, 1951 reads as under:

244(1) "Optional Retirement on completion on 20 years qualifying service - (a) Government servant may, after giving atleast 3 months'' previous notice in writing to the Appointing Authority, retire from service on the date on which he completes 20 years of qualifying service or attains the age of 45 years whichever is earlier or any date thereafter to be specified in the notice:

Provided that it shall be open to the appointing authority to withhold permission to retire & Government servant;

(i) who is under suspension;

(ii) in whose case the disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case, is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service;

(iii) in whose case prosecution is contemplated or may have been launched in a court of law;

(b) A Government Servant who has given notice for seeking retirement under clause (a) of this sub-rules, may presume acceptance of the notice of retirement and the retirement shall be effective in terms of the notice automatically unless an order in writing to the contrary has been issued by the Competent Authority and served upon the Government servant before the expiry of the period of the notice.

(c) If a Government Servant seeks retirement under this Sub-rule while he is on leave not due, without returning to duty, the retirement shall take effect from the date of commencement of the leave not due and the leave salary paid in respect of such leave shall be recovered from him.

(d) A Government servant who seeks voluntary retirement under clause (a) of this sub-rule shall be entitled to a weightage of a 5 years qualifying service which shall be given as an addition to the qualifying service actually rendered by him. The grant of weight age up to 5 years shall, however, be subject to the following conditions:-

In respect of Government servants governed by pension rules:

(i) The service qualifying for retirement benefits shall be enhanced by the addition of five years in such cases. The resultant length of service after taking into account the addition of national service shall in no case be more than 33 years qualifying service or the qualifying service the Government servant concerned could have counted had he retired on attainment of superannuation age, whichever is less.

(ii) In cases where qualifying service is increased under (i) above, the emoluments as defined in Rule 250(C) of the Rajasthan Service Rules which the Government servant was receiving immediately before the date of retirement shall be taken into account for the purpose of calculation of pension and gratuity.

(iii) In respect of Government servants governed by the Contributory Provident Fund Scheme:-Government contribution, (bonus and special contribution) shall be enhanced by the amount which would have accrued by the addition of five years notional service.

(iv) The notional contribution shall be added on the basis of the amount of subscription made immediately before the date of retirement without subscribing to the fund on or after the date of his retirement.

(v) The resultant increase in the aforesaid manner shall in no case be more than the contribution (bonus and special contribution) which could have been credited in his provident fund account had he retired on completing 33 years qualifying service or on attainment of the age of superannuation, whichever is less.

(vi) The benefit of five years, notional qualifying service mentioned in this clause shall not be admissible to a Government servant who is retired under sub-rule (2) of this Rule.

(e) A Government servant who gives notice of voluntary retirement under clause (a) of sub-rule (1) shall satisfy himself by means of a reference to the appointing authority who is competent to retire him to the effect that he has, in fact, completed 20 years qualifying service for pension.

(f) A Government servant may, with the approval of the Appointing Authority, withdraw the notice given under clause (a) of this sub-rule provided the request for such withdrawal is made before the expiry of the notice.

(g) The authority competent to retire a government servant may, in deserving cases, accept the notice completed under clause (a) of this sub-rule for a period of less than 3 months with the concurrence of the Government in the Finance Department."

A perusal of the aforesaid provisions clearly shows that a government servant has an option to seek retirement from service after giving atleast 3 months previous notice to the appointing authority. This is possible only after completion of 25 years or attaining the age of 45 years whichever is earlier. Proviso to Rule 244(1)(a) says that the appointing authority has discretion to withhold permission to retire a government servant where he is under suspension or any disciplinary proceeding are pending or contemplated for imposition of a major penalty and the disciplinary authority feels that penalty of removal of dismissal might be imposed on such Government servant, or in a case where a prosecution is contemplated or has been launched against the Government servant.

Clause (b) of Rule 244(1) provides that the Government servant who has given notice for seeking retirement under clause (a) may presume acceptance of the notice of retirement and the retirement shall be effective in terms of the notice automatically unless an order in writing to the contrary has been issued by the competent authority and served upon the Government servant before the expiry of the period of the notice. Proviso to Clause (a) and Clause (b) have to be read together. True it is that the appointing authority has been given discretion to refuse permission to Government servant to retire on the basis of his notice under Rule 244(1)(a), but this discretion has to be exercised by the competent authority by passing an order in writing and serving that order on the Government servant before the expiry of the period of notice. These two conditions have to be fulfilled by the competent authority before it can forestall retirement of a Government servant on the expiry of 3 months notice given under Rule 244(1)(a). Admittedly in the present case, no order had been passed by the competent authority refusing permission to the petitioner to retire from service in pursuance of his application. Obviously, the question of serving of such an order on the petitioner within this period could never arise. The respondents by their silence allowed the time to pass. After lapse of notice period of 3 months the retirement of the petitioner became effective automatically on 24th January, 1988. The relationship of Master and Servant came to an end on that day except for purposes of pension, gratuity and other retirement benefits.

The argument of the learned Additional Government Advocate is that since the petitioner has not joined duty and therefore, he could not submit application for voluntary retirement, is without any merit. It has not been the case of the respondents that the petitioner was not in service. If that was their argument, the charge sheet dated 16.4.1988 would have been quashed without a moment''s hesitation because a charge sheet could be served only on a Government servant who is in service.

In the case of the petitioner, since he stood retired on 24.1.1988, initiation of proceedings under Rule 16 of 1958 Rules is not at all warranted. Rule 14 of 1958 Rules postulates that any of the penalties specified therein can be imposed on a Government servant. Since the petitioner stood retired on 16.4.1988, no action could have been initiated against the petitioner under Rule 16 of 1958 Rules. As a legal corollary any further proceedings in pursuance of the charge sheet dated 16.4.1988 is without jurisdiction.

The only provision, under which action can be taken against a Government servant who has already from service and against whom departmental proceedings are not pending on the date of his retirement, is one contained in Rule 170 of 1951 Rules. However, for taking action under that Rule, the conditions precedent, namely, sanction of the Governor and the nexus of the charge sheet with the incident with reference to a period of 4 years prior to the point of time of service of charge sheet, has to be established. In the present case, it has not been argued by Shri Parihar, and in my opinion rightly so, that the charge sheet has been issued with the previous sanction of the Governor. Obviously, therefore, the action initiated under this charge sheet cannot be treated valid with reference to Rule 170 of 1951 Rules.

Consequently, this writ petition is allowed. It is declared that the petitioner stood retired from service on 24.1.1988 and therefore, no departmental enquiry could be initiated against him under Rule 16 of 1958 Rules vide memorandum dated 16.4.1988. The said memorandum as well as the charge sheet and also the proceedings taken thereafter are hereby quashed. The petitioner shall be entitled to all retirement benefits like pension, gratuity, provident fund etc. on the basis of his automatic retirement w.e.f. 24.1.1988."

From the facts, circumstances and materials available on record, it is evident that there was neither any enquiry pending or contemplated in case of the petitioner, which could be relied upon for declining or withholding the permission of the petitioner for voluntary retirement. There is no provision or any guideline contemplating withholding of permission of voluntary retirement of the Government Servant under Rule 50 for the period of currency of penalty. The petitioner who was not keeping good health wanted to bid fair well to the service and sought voluntary retirement which could not have been declined but for a reason sustainable in the eye of law.

The respondents themselves concluded that the petitioner could be allowed voluntary retirement under Rule 50 of the Rules of 1996, since no enquiry was pending as is evident from communication dated 6th August, 2009 (Annexure-6). The petitioner time and again requested for voluntary retirement extending the date from which the voluntary retirement be made effective. Finally, the petitioner sought voluntary retirement w.e.f. 28th February, 2010. In the singular facts of the case at hand the petitioner must be deemed to have voluntarily retired w.e.f. 28th February, 2010.

For the reasons and discussions hereinabove, the writ application succeeds and is hereby allowed.

In the result, the impugned order dated 10th February, 2010, is hereby quashed and set aside. The petitioner would be treated as voluntarily retired w.e.f. 28th February, 2010. As a consequence, the petitioner would be entitled to all consequential benefits. The respondents are directed to ensure the compliance of this order within two months from the date of receipt of a certified copy of the order.

In the facts and circumstances of the case, there shall be no order as to costs.