Ram Khilari vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-

“i The Hon’ble Tribunal may graciously be pleased to quash the impugned order dated 01.01.2018 and direct the respondents to pay all the dues viz penson, provident fund, DCRG, Leave encashment, CGECIS and other admissible benefits, as the retirement of the applicant has became absolute w.e.f. 09.03.2017 with all consequential benefits including 18% interest on such payments till those payments have been made;

ii. To issue any order, direction or further orders which this Hon’ble Court may deem fit and proper in the present facts and circumstances of the case.

iii. Award costs in favour of applicant”.

The brief facts of the case are that the applicant was initially appointed as Postal Assistant in the office of respondents. Applicant had submitted application on 09.12.2016 (Annexure A-1) for voluntary retirement under Rule 48 of CCS (CCA) Rules/F.R. 56 wherein provisions for voluntary retirement has been prescribed and after lapse of about 82 days, applicant had again sent a reminder enclosing therewith an earlier application dated 09.12.2016. As no rejection letter for request of voluntary retirement has been received by the applicant till the expiry of notice period i.e. 09.3.2017 and no monthly pay during the notice period has been paid, whole family is living in financial constraint. Respondent No. 4 has issued letter vide letter dated 17.5.2017 vide which an explanation has been sought from the applicant. Applicant sent reply against the same. Respondent No. 4 issued transfer order vide letter dated 02.06.2017 by which applicant has been transferred from Shantigarh to Wazirgarh. The applicant had proceeded on medical leave from 09.12.2016 to 09.03.2017. For redressal of his grievance, applicant filed the present O.A. and the Tribunal vide its order dated 24.08.2017 granted a direction to the respondents to release the provisional pension to the applicant within a period of two months. In compliance of direction of this Tribunal, respondent No. 4 has passed the impugned order, which is challenged in this O.A.

Per contra, learned counsel for the respondents filed counter affidavit stating therein that since applicant was informed vide letter dated 7.2.2017 that verification of AMM is under process and he was instructed to submit verification report, therefore his notice of VRS could not be accepted. Applicant submitted leave application regularly upto 22.6.2017. Applicant submitted an application dated 2.3.2017 requesting therein that his pay and allowances for the period of 3 months shall be sanctioned. As per rule, he cannot be voluntary retired under Rule 56/48 of FRSR on 9.3.2017 as he submitted his medical certificates repeatedly beyond the period of VRS i.e. 9.3.2017.

Rejoinder affidavit has also been filed in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit.

Heard Shri S.K. Kushwaha, learned counsel for the applicant and Shri R.K. Srivastava, learned counsel for the respondents and perused the record as well as written submissions filed by respondents.

Learned counsel for the applicant states that the applicant moved an application dated 09.12.2016 for voluntary retirement. The request of the applicant was not accepted by the respondents till 09.03.2017. Since the application was not accepted, no pensionary benefits was given to the applicant to that extent. Aggrieved by non-action of the respondents, the applicant has approached this Tribunal by way of the instant Original Application and pressed for an interim relief, which was granted to the applicant on 24.08.2017 in the form of provision pension. Learned counsel has further argued that the proposal for voluntary retirement was accepted by the respondents on 01.01.2018 treating the applicant voluntarily retired w.e.f 23.06.2017 and the pensionary benefits had been extended to the applicant treating three months period from 09.03.2017 to 23.06.2017 as leave and no other retiral dues were given to the applicant from 09.03.2017 to 23.06.2017. In support of his claim, learned counsel for the applicant has placed reliance on the following judgments:-

“(i) Bhagwan Sahai Misra Vs. Union of India and others passed in OA No. 588 of 2009 on 19.02.2010.

(ii) Union of India and others Vs. Bhagwan Sahai Misra and others in Writ A-26701/2010 on 11.5.2010.

(iii) Union of India Vs. Sayed Muzaffar Mir reported in 1977 4 SCC 441.

On the other hand, learned counsel for the respondents referred to paragraph 7 of the counter reply of the amendment application and argued that the applicant is not entitled for any benefit, as claimed in the OA, for the reasons disclosed in it.

Learned counsel for respondents has also filed written submission, in which it is stated that the department has passed an order on 1.1.2018, permitted the applicant to be deemed retired voluntarily from Govt. service w.e.f. 23.6.2017 F/N. Applicant has filed an amendment application which was allowed and the answering respondents filed counter to the amended O.A. on 6.1.2020 and stated that para 4,5,6 and 7 of this Counter Affidavit is more relevant. In para 4 it is stated that applicant had submitted various kind of leave upto 22.6.2017. Hence the applicant was permitted to deem retired from Govt. service w.e.f. 23.6.2017 F/N. In para 6 of the Counter affidavit, it has been stated that leave w.e.f 9.12.2016 to 22.6.2016 was granted to the applicant and the leave salary amount of the said period has also been credited in S.B. A/c No. 2187847911 of the applicant. Hence the applicant was permitted to deem retired w.e.f. 23.6.2017 F/N.

I have considered the rival submissions and have gone through the record carefully.

From perusal of record, it is evident that applicant submitted an application on 9.12.2016 for voluntary retirement under Rule 48 of CCS (CCA) Rules/FR, 1956. Three months notice period is required which was expired on 9.3.2017. During the notice period, the department must have either reject the application for voluntary retirement or to allow the same. Respondent No. 4 issued transfer order dated 2.6.2017 by which the applicant has been transferred from Shantigarh to Wazirgarh. The applicant had gone on medical leave from 9.12.2016 to 9.3.2017. Applicant had moved O.A. No. 848/2017 before this Tribunal and vide order dated 24.8.2017, this Tribunal directed the respondents to release provisional pension to the applicant within a period of 2 months. Thereafter, respondents have passed impugned order dated 1.1.2018, retiring the applicant w.e.f. 23.6.2017 F/N being the applicant remained on medical leave upto 22.6.2017 and salary paid to the applicant only upto 22.6.2017. Applicant by way of this O.A. has claimed that his retirement may be treated w.e.f. 9.3.2017 and direct the respondents to pay all the dues viz pension, Provident Fund, DCRG, Leave encashment, CGECIS and other admissible benefits as the retirement has become absolute w.e.f. 9.3.2017 with all consequential benefits including 18% interest.

In the case of Dinesh Chandra Sangma Vs. State of Assam reported in (1977) 4 SCC 441, Hon’ble Apex Court has dealt with a pari-materia provision finding place in Rule 56 (c ) of the Fundamental Rules, that “where the Government Servant seeks premature retirement, the same does not require any acceptance and comes into effect on the completion of the notice period.” This decision was followed by another three judge Bench in B.J. Shelat Vs. State of Gujarat reported in (1978) 2 SCC 202, in which it has been held that “The period of notice in the present case having expired on 21.10.1985 and the first order of removal having been passed on 4.11.1985, we hold that the Tribunal had rightly come to the conclusion that the order of removal was non est in the eyes of law.”

Admittedly, in the present case, applicant had submitted an application for voluntary retirement on 9.12.2016 but the respondents have not passed any order on the application of the applicant till 9.3.2017 i.e. till the date of expiry of notice period, instead transferred the applicant from Shantigarh to Wazirgarh vide order dated 2.6.2017. In the case of Dinesh Chandra Sangma Vs. State of Assam (supra), Hon’ble Apex Court has clearly observed that “where the Government Servant seeks premature retirement, the same does not require any acceptance and comes into effect on the completion of the notice period.” In the present case, notice period of the applicant has expired on 9.3.2017. Hence, I am of the opinion that the notice of the applicant dated 9.12.2016 is to be treated as correct. Notice period of three months expires on 9.3.2017. During this period, the respondents did not pass any order in the matter. Hence notice attained its finality. Therefore, O.A. is liable to be allowed and applicant is entitled to all retiral benefits w.e.f. the date of expiry of notice period i.e. 9.3.2017.

Accordingly, O.A. is allowed. Respondents are directed to pay all the retiral benefits due to the applicant treating the applicant as voluntary retired w.e.f. 9.3.2017, i.e. from the date of expiry of notice period, after adjusting the salary paid to the applicant for the medical period i.e. from 9.12.2016 to 22.6.2017, within a period of 03 months from the date of receipt of certified copy of this order.

There shall be no order as to costs.