Rajiv Kumar Sharma vs Union of India & Ors

Rajveer Singh Verma, Member (J)

By way of the present Original Application, the applicant has prayed for the following reliefs:-

“8(i) to quash and set aside the Communication dated 12.04.2022 issued from the office of Respondent No 1, Communication dated 11.05.2022 issued from the office of Respondent No. 1 and Communication dated 12.05.2022 issued by the Assistant Commissioner working in the office of Respondent No 3,

(ii) To grant costs of this application to the applicant herein, and

(iii) To pass such other order or orders as may be deemed fit and proper in the interests of justice.”

Highlighting the facts of the present case, learned counsel for the applicant submitted as under:

2.1. He submitted that the applicant, while serving as Assistant Commissioner in CGST, Chandigarh Zone, submitted a request dated 24.11.2021 seeking voluntary retirement under Fundamental Rule 56(k) after completing more than 30 years of service and fulfilling eligibility conditions. He specified 24.02.2022 as the effective date, complying with the mandatory three- month notice period. Subsequently, respondent no. 3 vide letter dated 11.01.2022 had requested him to file a fresh comprehensive request for voluntary retirement stating specific reasons alongwith supporting documents. The applicant resubmitted his request on 12.01.2022 along with reasons, while clearly requesting that the original date of application be considered for calculating the notice period. Despite this, the respondents had considered the notice period till 12.04.2022, as counted from his subsequent letter dated 12.01.2022, and he relinquished charge on that date. However, on 12.04.2022 itself, on 05:45 PM, the impugned communication dated 12.01.2022 rejecting the request of his voluntary retirement has been given to the applicant without assigning valid reasons.

2.2. Learned counsel for the applicant contend that under FR 56(k), no formal acceptance is required if conditions are fulfilled and notice period is completed, and thus his retirement stood deemed effective on 12.04.2022.

2.3. He further submitted that despite repeated representations, the respondents failed to release his retirement benefits and instead directed him to resume duty, treating him as absent. The applicant maintains that such actions are arbitrary, contrary to rules, and violate the principle of deemed acceptance under FR 56(k).

Opposing the grant of relief, learned counsel for the respondents relied upon the averments contained in the counter affidavit. He contended that the applicant’s request for voluntary retirement under FR 56(k) was lawfully rejected by the competent authority within the prescribed notice period, and the same was duly communicated to him on 12.04.2022 while the office was still functioning.

3.1. He also contended that the applicant’s contention of deemed acceptance is misconceived, as FR 56(k) explicitly empowers the authority to withhold permission in cases where judicial proceedings involving grave misconduct are pending. In the present case, a CBI FIR bearing No. RC0052021A0025 dated 29.09.2021 under Section 120-B of IPC Act had already been registered against the applicant prior to submission of his VRS notice, clearly attracting the bar under the Rules. The applicant was fully aware of the pending proceedings and appears to have sought VRS to evade disciplinary and judicial consequences. His unilateral relinquishment of charge is illegal and without authority, as permission for retirement had not been granted.

3.2. Learned counsel for the respondents stated that the communication dated 12.04.2022, of rejection on the same day is valid, as the Rules refer to the date and not office hours. The applicant’s failure to resume duties after leave further establishes misconduct.

3.3. He also state that the plea regarding applicability of CCS Pension Rules is untenable and irrelevant to the present case under FR 56(k) as the respondents have acted strictly in accordance with statutory provisions and Board instructions. Hence, the claim of deemed retirement and consequential benefits is unsustainable in law. The Original Application is therefore liable to be dismissed.

Heard learned counsel for the respective parties and perused the pleadings available on record.

Analysis

The present Original Application has been filed seeking quashing of the communications dated 12.04.2022, 11.05.2022 and 12.05.2022, whereby the request of the applicant for voluntary retirement under Fundamental Rule 56(k) has been rejected, and for a declaration that the applicant stood voluntarily retired upon expiry of the notice period.

The facts, in brief, are that the applicant, while serving as Assistant Commissioner, submitted a notice dated 24.11.2021 seeking voluntary retirement under Fundamental Rule 56(k), specifying the effective date as 24.02.2022. Upon being asked to submit a fresh comprehensive request, the applicant resubmitted his request on 12.01.2022. The respondents reckoned the notice period from the latter date and treated 12.04.2022 as the date of expiry of the notice period. The applicant relinquished charge on the said date. However, the respondents, on 12.04.2022 itself, communicated rejection of the request for voluntary retirement.

The principal contention of the applicant is that in the absence of any valid ground under the proviso to Fundamental Rule 56(k), and in the absence of any lawful withholding of permission, the applicant stood voluntarily retired upon expiry of the notice period by operation of law.

The respondents, on the other hand, justify the rejection on the ground that a CBI FIR dated 29.09.2021 had been registered against the applicant for alleged offences under Section 120-B IPC read with Section 7 of the Prevention of Corruption Act, 1988, and that the said circumstance entitled them to withhold permission for voluntary retirement.

In order to appreciate the rival submissions, it is necessary to reproduce the relevant portion of Fundamental Rule 56(k):

“56(k)(1) Any Government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service…

Provided that…

(c) It shall be open to the Appropriate Authority to withhold permission…if—

(i) The Government servant is under suspension; or

(ii) 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: 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 criminal proceedings.”

A plain reading of the above provision makes it clear that while a Government servant has a right to seek voluntary retirement upon giving the requisite notice, such right is not absolute and is subject to the proviso. The competent authority is empowered to withhold permission only in the contingencies specified therein.

The law on the subject is well settled. In B.J. Shelat v. State of Gujarat and Others, (1978) 2 SCC 202, it has been held that though the right to voluntary retirement accrues upon fulfillment of the prescribed conditions, the same stands curtailed where the proviso is attracted, and that withholding of permission must be by a positive decision communicated before the effective date. Similarly, in Sandeep Gupta v. Union of India and Others, W.P.(C) 5366/2024 decided on 29.01.2025, it has been held that voluntary retirement becomes effective upon expiry of the notice period where no disqualifying condition exists and no valid order withholding permission is communicated.

The pivotal question, therefore, is whether any of the disqualifying conditions under the proviso to Fundamental Rule 56(k) existed as on 12.04.2022, i.e., the date of expiry of the notice period.

It is not the case of the respondents that the applicant was under suspension or that any departmental charge-sheet had been issued against him prior to the said date. The sole ground relied upon is the registration of the CBI FIR dated 29.09.2021.

The issue, therefore, is whether the mere registration of an FIR or pendency of investigation amounts to“judicial proceedings” within the meaning of the Rule.

The answer lies in the Explanation appended to Fundamental Rule 56(k), which clearly stipulates that judicial proceedings shall be deemed to be pending only when a complaint or report of a police officer, of which the Magistrate takes cognizance, has been made or filed in criminal proceedings.

Thus, the statutory requirement is not merely the existence of an FIR or an ongoing investigation, but the stage at which the competent court has taken cognizance of the offence on the basis of a complaint or police report.

In the present case, as on 12.04.2022, it is an admitted position that no charge-sheet had been filed before a competent court and no cognizance had been taken by any Magistrate. The sanction for prosecution itself was granted only subsequently on 20.04.2022. The matter, therefore, remained at the stage of investigation as on the relevant date.

Consequently, it cannot be held that “judicial proceedings” were pending against the applicant within the meaning of the proviso to Fundamental Rule 56(k) as on 12.04.2022.

Though the allegations against the applicant pertain to offences under the Prevention of Corruption Act and may be serious in nature, the gravity of the allegations cannot substitute the statutory requirement expressly laid down in the Rule. The Court is bound to give effect to the language of the provision as it stands.

In the absence of any disqualifying condition under the proviso, the respondents could not have lawfully withheld permission for voluntary retirement.

It is true that the rejection was communicated on 12.04.2022 itself. However, mere communication within the notice period is not sufficient. The withholding of permission must be supported by a legally sustainable ground under the proviso. In the absence of such ground, the communication of rejection cannot defeat the right that had accrued in favour of the applicant.

In view of the above, upon expiry of the notice period, the applicant stood voluntarily retired by operation of law. The principle of deemed acceptance, as explained in Sandeep Gupta (supra), squarely applies to the facts of the present case.

The impugned communications rejecting the request of the applicant for voluntary retirement are, therefore, unsustainable and liable to be quashed.

Accordingly, the Original Application is allowed. The impugned communications dated 12.04.2022, 11.05.2022 and 12.05.2022 are set aside. The respondents are directed to treat the applicant as having voluntarily retired with effect from 12.04.2022 and to release all consequential retiral and pensionary benefits to the applicant in accordance with law within a period of eight weeks from the date of receipt of a copy of this order.

There shall be no order as to costs.