Narendra Kumar vs Union Of India Through And Anr

L. Narasimha Reddy, J

The applicant is an IRS Officer of 1988 batch. Presently, he is holding the post of Principal Commissioner of Income Tax, and is working at Jodhpur. He submitted an application on 18.12.2017 to the Appointing Authority, i.e., the President of India, with a request to permit him to retire on voluntary basis. Through order dated 16.03.2018, the President of India was pleased to reject the request of the applicant. The same was conveyed to him vide order dated 30.03.2018.

The applicant was issued a charge memo dated 11.04.2018. It was alleged that the applicant exhibited negligence in discharge of his functions as Supervisory Officer, and failed to maintain devotion to duty; and thereby contravened Rule 3 (1) (ii) of CCS (Conduct) Rules, 1964. Reference was made to certain instances that led to the evasion of income tax of various assesses. This OA is filed challenging the order dated 16.03.2018 through which his request for VRS was rejected and the Memorandum of Charge dated 11.04.2018.

The applicant contends that there was absolutely no basis for rejection of his request for VRS, and admittedly none of the three grounds on which his request was rejected were available at the relevant point of time, and the impugned order does not even mention any reasons whatever. It is also stated that the charge memo was issued only to justify untenable rejection of his request for VRS, and the charges contained therein are not only obsolete but are also trivial in nature.

On behalf of the respondents, a counter affidavit is filed. It is stated that the request for VRS was rejected on account of the vigilance status received from the office of Pr. DGIT (Vigilance) CBDT, New Delhi, and that the charge memo is issued, as a sequel to the vigilance status.

We heard Shri Arvind Kumar and Shri Harsh Vardhan Sharma, learned counsel for the applicant and Shri Rajeev Kumar, learned counsel for the respondents.

The request for VRS was made by the applicant on 18.12.2017. On consideration of the same, the Office Order was passed on 16.03.2018. It reads as under:-

"Office Order No.A-55/2018 The President of India is pleased to reject the notice dated 18.12.2017, submitted by Shri Narendra Kumar (Civil Code 88074), Pr. Commissioner of Income Tax-2, Jodhpur, for seeking voluntary retirement from the Government Service under Fundamental Rule 56 (k)."

The applicant placed reliance upon the Office Memorandum dated 27.02.2014 issued by the DoP&T. The said memorandum reads as under:-

"Subject : Voluntary retirement under FR 56(k), etc. and amendment of Rules.

The provisions of Fundamental Rule 56(k), 56(m) and Rule 48 of CCS(Pension) Rules, 1972 relating to acceptance of request of voluntary retirement have been revisited as per the Central Administrative Tribunal, Principal Bench judgment dated 4th August, 2010 in 0.A.No.1600/2009 filed by Shri Gopal Singh Purohit Vs U01 & Others to bring them at par with each other.

The matter has 'been examined in consultation with Department of Pension and Pensioners Welfare and the Ministry of Law. FR 56(k) and 56 (m) have been amended vide Extra Ordinary Gazette Notification No.GSR.27(E) dated17th January, 2014. It shall be open to the appropriate authority to withhold permission to a Government servant who seeks to retire under FR 56(k) or 56 (m) in the following circumstances:

(i) If the Government servant is under suspension ; or

(ii) If a charge sheet has been issued and the disciplinary proceedings are pending; or

(iii) If judicial proceedings on charges which may amount to grave misconduct, are pending.

Explanation: For the purpose of this clause, judicial proceedings shall be deemed to be pending, if a complaint or report of a police officer, of which the Magistrate takes cognizance, has been made or filed in a criminal proceedings.

Copy of the Gazette Notification No.G.S.R.E.(27) dated 17.1.2014 amending FR 56(k) and FR 56(m) is enclosed.

All Ministries/Departments are requested to bring the contents of this O.M. to the notice of all concerned."

This was issued in the light of the judgment of Hon"ble Supreme Court in Union of India vs. K. V. Janakiraman (1991 AIR 2010).

It is true that none of the three grounds mentioned above were available to the respondents when the notice of the applicant for VRS was received. However, the procedure is that the vigilance status of an employee is taken into account while dealing with the notice for VRS. In case the vigilance is clear, there would not be much difficulty in acceding to the request. Where, however, the vigilance is not clear, the mere fact that the charge memo was not issued by that time, does not make much of difference. The appointing authority cannot ignore the circumstances of this nature.

An employee does not have a vested right to insist on being accorded permission to take voluntary retirement. In case, an employee applies for VRS apprehending initiation of disciplinary proceedings, a mechanical acceptance of the same simply on the ground that no charge sheet was issued by that time; would amount to putting a premium on an officer"s attempt to frustrate the disciplinary proceedings. The three grounds mentioned in the aforesaid Office Memorandum may be concrete and definite in nature. However, if there exists material to indicate that the disciplinary proceedings are on the verge of being initiated or issued, the officer cannot be left scot free by acceding to his request for VRS.

Reliance is placed upon the judgment of Hon"ble Delhi High Court in Delhi Development Authority vs. H. C. Khurana (1993 SCC (3) 196). That was not a case of VRS, but of the consideration of the case of an employee by DPC for promotion. The question was as to when a charge sheet can be deemed to have been issued, namely, when it was signed by the disciplinary authority and dispatched; or when it was actually received by the government servant. None of those points arise for consideration in this case.

The other precedent relied upon by the applicant, namely, Union of India vs. Ashok Kumar W.P (C) No.3500/2018 decided on 10.04.2018, is also a case of promotion, wherein, it was held that since no charge memo was issued as on the date on which the DPC met, the promotion cannot be denied.

If the VRS is permitted, it would put an end to the relationship of an employer and employee. Before such a severance of status is brought into existence, it is axiomatic that the employer must satisfy itself that there was nothing adverse against the employee. If it permits an employee to take VRS even while the disciplinary action is contemplated, it would be suicidal for the department itself. In such an event, the employee will leave the organization and the employer would render itself unfit to initiate disciplinary action. Therefore, we do not find any legal or factual defect in the order dated 16.03.2018.

Coming to the charge sheet, it is fairly well established that the occasion for the Court or Tribunal to interfere with a charge memo would arise, if only, it was issued by an officer not vested with the power or if no misconduct, as defined under the relevant service rules can be discerned, even if the allegations contained in the charge memo are taken on their face value. None of these grounds are pleaded by the applicant. The truth or otherwise of the allegations can be dealt with, only in the departmental inquiry. We cannot interfere with the inquiry at this stage when no serious legal infirmity is pointed out.

We, therefore, dismiss the OA. However, it is directed that the respondents shall endeavor to conclude the disciplinary proceedings within a period of six months from the date of receipt of copy of this order. We are not issuing the directions in a mandatory form since a tendency has developed to come forward with the plea that the disciplinary proceedings deserves to be treated as non est, if they are not completed within the time stipulated by the Tribunal. There shall be no order as to costs.