N.R.C. Pillai vs Uoi & Ors.
2010 Latest Caselaw 3209 Del

R-9
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+ 	W.P.(C)No.3504/1992

Date of Decision : 12th July, 2010
%
N.R.C. PILLAI 	 		..... Petitioner
				Through:	Mr. A.P. Mukundan, Adv.
			versus
	UOI & ORS.	 	 	 ..... Respondents
				Through:	Ms. Barkha Babbar, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA 

Whether Reporters of Local papers may 				
	be allowed to see the Judgment? 	No

2.	To be referred to the Reporter or not?	No	

3.	Whether the judgment should be 				
	reported in the Digest?			No

GITA MITTAL, J. (Oral)

1. The challenge in this writ petition is premised on the contention that the petitioner had submitted a notice dated 1st May, 1991 seeking voluntary retirement from service with the Border Security Force. The petitioner contends that the respondents failed to make an order refusing to accept the request of the petitioner within the three month period stipulated under Rule 48A of CCS (Pension) Rules, 1972. It is contended that in view of the proviso to Sub Rule 2 of Rule 48A, the retirement became effective from the date of expiry of the period of three months.

2. The respondents on the other hand have contended that the petitioner was facing disciplinary proceedings under the Border Security Force Act, 1968 on the ground of allegations of embezzlement of Government funds when he was on deputation of the National Security Guard. The petitioner had been sent the communication dated 27th May, 1991 that a Staff Court of Inquiry was pending against him.

3. Learned counsel for the respondents has pointed out that the petitioner was deputed to the NSG in December, 1985 and on account of allegations of embezzlement against him, a Staff Court of Inquiry was ordered under the procedures of the NSG Act. Subsequently, the petitioner was repatriated on 8th June, 1990 to the Border Security Force, his parent department. On 10th September, 1990, the petitioner was sent to 12 SRG (NSG) on temporary duty on completion of the Staff Court of Inquiry which was completed in January, 1991. The petitioner is stated to have proceeded on leave on 17th June, 1991 but he did not return after the expiry of the period of leave. The respondents have further submitted that the petitioner absconded from 12 SRG (NSG) Manesar w.e.f. 23rd August, 1991 and was finally apprehended from his residence at New Delhi on 8th May, 1992. 4. A habeas corpus writ petition was filed by the wife of the petitioner in this Court being Crl.W.P.No.322/1990. Vide orders dated 22nd July, 1992, this Court had directed the respondents to release the present petitioner forthwith with the direction that he should appear before the officer recording the ROE on 23rd July, 1992. The petitioner was directed to appear on the further date communicated by the officer recording the ROE. This record of evidence was completed on 21st September, 1992 and it was recommended that the petitioner be tried by General Security Force Act on two charges, one for misappropriation of government money and second for desertion from service.

5. As per the respondents, instead of facing the trial, the petitioner again absconded from 25 Battalion BSF at the Chhawla Camp, New Delhi w.e.f. 28th October, 1992. All efforts by the respondents detailed in para 5 of the counter affidavit to serve notices and secure his presence before the Security Force Court were of no avail. The respondents also issued an apprehension roll through the Superintendent of Police and also invoked the machinery of the Chief Metropolitan Magistrate at Tis Hazari Courts, New Delhi to secure the appearance of the petitioner. Efforts to trace the petitioner at his home town in Kerala were also of no avail.

6. The petitioner filed the present writ petition at this stage on or about 22nd September, 1992 seeking the following prayers:-

"(a) issue a writ of certiorari or any other writ, order, direction, quashing the disciplinary proceedings initiated against the petitioner by the Border Security dated 12th May, 1992;

(b) declaring the Inquiry being initiated against the petitioner, as illegal;

(c) declaring the petitioner as a non-member of the Boarder Security Force with effect from 1st August, 1991;

(d) such other relief or reliefs that this Hon'ble Court may deem fit in the facts and circumstances of the case.

(e) direct the respondents to pay to the petitioner all the monetary benefits entitled in law;

cost of this petition."

7. Our attention is drawn to a communication dated 27th May, 1991 sent by Joint Assistant Director (Staff) of the Directorate General Border Security Force in the Ministry of Home Affairs whereby the petitioner was informed that request for voluntary retirement cannot be accepted till the staff Court of Inquiry, pending against him, was finalized. The petitioner was also informed that the DIG, BSF Siliguri is competent to accept the request for voluntary retirement and that on reaching the unit, the petitioner could apply for the same.

8. The petitioner has made a grievance that by virtue of Rule 30 under the Central Civil Service (Classification, Conduct and Appeal), the respondents were bound to serve every order, notice and other process in person on the Government servant concerned or communicate to him by registered post. We have perused the said Rule. It is evident therefrom that the mandate contained therein applies to an order, notice or other process made or issued under the CCS (CCA) Rules alone. Learned counsel for the petitioner is unable to show us as to how the mandate of Rule 30 noticed hereinabove would apply to an order made under the CCS (Pension) Rules.

9. So far as service of the communication dated 27th May, 1991 is concerned, it is not disputed by the petitioner that the same has been properly addressed to the correct residential address of the petitioner. The respondents have also placed on record the extract of the dispatch register which has been maintained in the regular course of business of the respondents evidencing dispatch of letter dated 27th May, 1991 duly addressed to the petitioner. The same is supported by affidavits of the competent authority.

10. The record shows that the respondents had also sent a communication dated 9th September, 1991 referring on the subject of the voluntary retirement request of the petitioner again informing him that the same could be accepted subject to the condition that he physically reports to the unit to which he has been posted; that the Staff Court of Inquiry pending against him should be finalized prior to acceptance of his voluntary retirement application; that the application for voluntary retirement should be submitted to the DIG, BSF Siliguri for acceptance who was the competent authority for consideration of such a request. This letter was followed with a communication dated 6th December, 1991 again informing the petitioner that the competent authority had ordered that his voluntary retirement could not be accepted pending finalization of the inquiry against him.

11. Ms. Barkha Babbar, learned counsel for the respondents has pointed out that the communication dated 9th September, 1991 was addressed to the same address and sent by the same mode as the earlier communication dated 27th May, 1991 to the petitioner. We find that the petitioner has enclosed a copy of the letter dated 9th September, 1991 along with the writ petition manifesting its due service. In this background, we see no reason to disbelieve the statement of the respondent that they had recorded and sent the order dated 27th May, 1991 to the petitioner which was duly served on him.

12. We may note that the petitioner has made the request for voluntary retirement on 1st May, 1991 to the Directorate General, National Security Guard with which the petitioner was on deputation. The petitioner was admittedly recruited by the Border Security Force and a request for voluntary retirement should have been made to the competent authority under the Border Security Force Act.

13. Even assuming that the request for voluntary retirement had been made to the competent authority, we find that the respondents have clearly informed the petitioner by the letter dated 27th May, 1991 that such request could not be accepted pending finalization of the Court of Inquiry against him.

14. Ms. Barkha Babbar, learned counsel for the respondents has placed reliance on OM No.25013/3/79 dated 28th July, 1979 issued by the Department of Personnel & AR which prescribes the manner in which voluntary retirement requests are to be regulated. Reliance has been placed on instruction 1(iii) of the said OM which is as under:-

"(iii) A notice of voluntary retirement given after completion of twenty years' qualifying service will require acceptance by the appointing authority if the date of retirement on the expiry of the notice would be earlier than the date on which the Government servant concerned could have retired voluntarily under the existing rules applicable to him (e.g., F.R. 56 (A), Rules 48 of the Financial Rules, Article 459 (i) of G.S.R's. or any other similar rules). Such acceptance may be generally given in all cases except those (a) in which disciplinary proceedings are pending or contemplated against the Government servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case, or (b) in which prosecution is contemplated or may have been launched in a Court of Law against the Government servant concerned. If it is proposed to accept the notice of voluntary retirement even in such cases, approval of the Minister-in-charge should be obtained in regard to Group 'A' and Group 'B' Government servants and that of the Head of the Department in the cases of Group 'C' and Group 'D' Government servant. Even where the notice of voluntary retirement given by a Government servant requires acceptance by the appointing authority, the Government servant giving notice may presume acceptance 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."

15. As noticed above, the prayer of the petitioner is premised primarily on the said communication dated 1st May, 1991 issued by him to the Director General and other authorities of the National Security Guard. The petitioner submitted an application for voluntary retirement to the Border Security Force and made a conditional request for voluntary retirement therein. The respondents have informed the petitioner by the communication dated 27th May, 1991 of the inability to accept his request for voluntary retirement, pending completion of the inquiry proceedings against him. The same is as per the applicable instructions.

16. The conduct of the petitioner shows that he has deliberately evaded due process of law with the sole motive of avoiding the disciplinary action and has waited till the expiry of the period of three months merely to raise technical objection which has been ascertained before us. The respondents have placed the extracts of the dispatch register maintained in due course of regular business duly supported by the affidavits and we see no reason to disbelieve the statement.

17. The record reflects that the petitioner unfortunately expired in the month of May, 1998. CM No.1072/2001 being an application filed by Ms. Renuka Pillai, widow of the petitioner for substitution of the petitioner's widow and two children as legal heirs on record was allowed by this Court by order dated 17th January, 2002. The present writ petition has been pursued by the petitioner's widow, one son and daughter thereafter.

So far as, the proceedings under the Border Security Force Act against the petitioner are concerned, the same would have abated on account of his unfortunate demise in the year 1998. As a result, the respondents would therefore, be required to consider the aspect of the monetary amount, if any, which may be due and payable to the legal heirs of the petitioner in accordance with law and they would have to take a considered view on this aspect.

18. In view of the above discussion, so far as the prayer of the petitioner seeking a declaration to the effect that petitioner was non-member of the BSF w.e.f 1st August, 1991 is concerned, the same is held to be misconceived and hereby rejected.

Prayer (a) and (b) in the writ petition are rendered infructuous on account of the death of the petitioner and so disposed of. So far as prayer (c) is concerned, the same is hereby rejected.

The reliefs sought by the petitioner would require to be moulded appropriately keeping in view the subsequent fact of the demise of the petitioner during the pendency of this writ petition.

This writ petition is accordingly disposed of with a direction to the respondents to forthwith pass appropriate final orders with regard to the disciplinary proceedings which had been initiated against the petitioner in view of his demise. The respondents are further directed to compute and calculate the amounts, if any, which may be admissible to the petitioner or his legal heirs in accordance with the prescribed procedure and the applicable law within a period of three months from today. The same shall be communicated to his legal heirs immediately thereafter. The payments, if any, shall be expeditiously effected.

Dasti.

GITA MITTAL, J

J.R. MIDHA, J JULY 12, 2010 aj/aa