Union Of India & Ors. vs Sh.Ved Prakash Sharma
2011 Latest Caselaw 901 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (Civil) No.8102 of 2010

%                          Date of Decision: 15.02.2011

Union of India & Ors.                                      ...... Petitioners

                       Through   Mr.Rajinder Nischal, Advocate

                                   Versus

Sh.Ved Prakash Sharma                                     ...... Respondent

                       Through   Mr.Sant Lal, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.    Whether reporters of Local papers may be                   YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                      NO
3.    Whether the judgment should be reported in                  NO
      the Digest?

ANIL KUMAR, J.

*

1. The petitioners, Union of India & Ors., have challenged the order

dated 21st July, 2010 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in OA No.1098 of 2010, titled „Ved Prakash

Sharma v. Union of India & Ors.‟ holding that the respondent had

served a proper notice under Rule 48 of the CCS (Pension) Rules, 1972

being eligible on 17th July, 2009 which attained finality and did not

require any permission as the respondent was not under suspension

and therefore, he is deemed to have retired on 18th October, 2009 and

directing the petitioners to retire the respondent voluntarily w.e.f. 18th

October, 2009 and granting all the pensionary benefits which are

admissible to him as per rules.

2. The petitioners have also challenged the order dated 14th

September, 2010 passed in R.A.No.243 of 2010 dismissing the review

application against the order dated 21st July, 2010 in O.A.No.1098 of

2010 on the ground that the review sought by the petitioners was not

within the scope and ambit of Section 22 (3) (f) of the Administrative

Tribunal Act, 1985.

3. Brief facts to comprehend the controversies between the parties

are that the respondent, while working as a Postal Assistant, Narnual

Head Office had served a notice dated 6th June, 2009 on the petitioners

of his retirement after three months under Fundamental Rule 56 (k)(1)

seeking retirement from 15th September, 2009. The notice given by the

petitioners is as under:

"The Director Postal Services, Gurgaon Division, Gurgaon, (Through Postmaster Narnaul, H.O)

Subject: Notice of Retirement under FR 56 (k)(1)

--------

Sir, It is humbly submitted that the applicant‟s date of Birth is 4th July, 1950 and has already crossed the age of 55 years. His date of appointment in the Department is during the year 1969. He has not only rendered qualifying service of

more than 30 years as laid down in Rule 48 of CCS (Pension) Rules, 1972 but also crossed the age of more than 55 years as laid down in FR 56(k)(1). The applicant intends to seek retirement from service honourably. He, therefore, tenders three months notice of Retirement under FR 56(k)(1) and his retirement would take effect from 15th September, 09 i.e. after the expiry of the said period of notice which is more than the prescribed period of three months.

It is requested that necessary steps may kindly be taken to get all his pension papers completed during the period of this notice so that he may get his retirement benefits in due time.

Thanking you in anticipation."

4. The respondent by notice dated 8th June, 2009 was seeking

retirement from service after attaining the age of 55 years under Rule

56 (k)(1) of the Fundamental Rule. As per the rule no permission was

required and the employee would retire after three months. The said

rule is as under:-

"FR 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 after he has attained the age of fifty years, if he is in Group „A‟ or Group „B‟ service or post, (and had entered Government service before attaining the age of thirty-five years), and in all other cases after he has attained the age of fifty-five years:

Provided that-

(a) Not printed (Since Clause (a) has been deleted)

(b) nothing in the clause shall also apply to a Government servant, including scientist or technical expert who (i) is on assignment under the Indian Technical and Economic Co- operation (ITEC) Programme of the Ministry of External Affairs and other aid Programmes, (ii) is posted abroad in a foreign-based office of a Ministry/Department and (iii) goes on a specific contract assignment to a foreign Government

unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year; and

(c) it shall be open to the Appropriate Authority to withhold permission to a Government servant under suspension who seeks to retire under this Clause."

5. Pursuant to the notice of the respondent to permanently retire

after attaining the age of 55 years, a communication dated 3rd July,

2009 was sent by the petitioners seeking an explanation as the rule

quoted by the respondent, Fundamental Rule 56 (k)(1), does not cover

voluntary retirement from service, and therefore, no action can be taken

on his application. The respondent was advised to refer the correct

rule/provision, if voluntary retirement is desired by him. He was also

asked to forward his application along with proper recommendations.

6. Pursuant to clarification sought by the petitioners, the

respondent sent another notice dated 17th July, 2009 contending that

he had not sought voluntary retirement in the notice dated 8th June,

2009, nor had he submitted his request for voluntary retirement. He

further asserted that under Fundamental Rule 56 (k)(1) he had fulfilled

the requirement as he has attained the age of 55 years, and

consequently, the clarification/objection raised in communication dated

3rd July, 2009 by the petitioners is erroneous. The respondent also

clarified that an identical provision is under Rule 48 of CCS (Pension)

Rules, 1972 however, the voluntary retirement under the said Rule is

subject to condition that the Government servant should have

completed 30 years of qualifying service whereas under Rule 56 (k)(1),

the condition stipulated is of 55 years of age and not the minimum

years of service.

7. Though the respondent had sought retirement in terms of Rule 56

(k)(1) of the Fundamental Rule, another communication dated 11th

September, 2009 was sent to the respondent, disclosing inter-alia, that

his request for voluntary retirement dated 17th July, 2009 cannot be

accepted as a disciplinary case is contemplated against him. The

respondent, however, sent another communication dated 15th

September, 2009 stating that he was liable to give three months notice

for retirement under Rule 56 (k)(1) of the Fundamental Rule and that

since he had given a notice on 8th June, 2009 (8 days 3 months had

expired on 15th September, 2009) and since he had given the notice for

retirement3 months in advance, therefore, on 15th September, 2009 he

had retired. The respondent further stated in his communication that

he is going to his home after his retirement and gave his new address to

which all his dues for payment of his allowances and retirement

benefits was to be sent. Yet another communication was sent by the

respondent dated 19th October, 2009 requesting the petitioners to take

necessary action to get the requisite application form and other pension

papers completed and for releasing his retiral dues without any further

delay so that he may not suffer serious financial hardship.

8. Since the pension papers of the respondent were not prepared,

the respondent sought information under the Right to Information Act

by application dated 9th January, 2010 with respect to his documents

regarding his pension under Rules 58 and 59 of CCS (Pension) Rules,

1972. The respondent however, received a memo dated 18th February,

2010 from the Superintendent of Post Offices Gurgaon, followed by a

letter dated 8th March, 2010 intimating the respondent that he is being

treated as absent from duty w.e.f 15th September, 2009 as he had not

sought approval for retirement nor was any approval from the

competent authority granted. The pension and the retiral benefits of the

respondent were also not released. The notice dated 18th February,

2010 received by the respondent was as under:

"SHOW CAUSE NOTICE

Whereas Sh.Ved Parkash Sharma PA Narnaul HO is reported to be absent from duty w.e.f. 15/9/2009 unauthorisedly by Postmaster Narnaul H.O. vide letter No.B/Staff/Misc./4395 Dated 15.09.09.

Whereas the said Sh.Ved Parkash Sharma was given a notice for his absence with effect from 15/9/2009 unauthorised to explain as to why he absented himself from the office without information or approval of the competent authority vide this office letter of even no. dated 14/10/2009. The said Sh.Ved Parkash Sharma was further directed to join his duty forthwith through the above.

Now, the said Sh.Ved Parkash Sharma is further called upon through this notice to explain as to why Disc. Action may not be taken against him for unauthorized absence from duty w.e.f.15.09.2009.

The said Sh.Ved Parkash Sharma is directed to submit his explanation with in a period of 10 days from the date of receipt of this notice, failing which ex-parte decision will be taken.

Supdt. Of Post Offices Gurgaon-122001."

9. Later on the respondent was also served a charge sheet dated 17th

May, 2010. The respondent, therefore, filed an application under

Section 19 of the Administrative Tribunal Act, 1985 seeking inter-alia to

declare the letters dated 14th October, 2009, memo dated 18th February,

2010 and letter dated 8th March, 2010 as non est and to set aside the

same and to direct the petitioners to release all the retiral benefits and

other dues to which he is entitled for.

10. By letter dated 18th February, 2010 the respondent was called

upon as to why disciplinary action should not be taken against him for

unauthorized absence from duty w.e.f. 15th September, 2009. The

respondent was also served a charge sheet with memorandum dated

17th May, 2010 and the article of charge against the respondent was

that Sh.Raghubir Singh had opened a RD account at Bahadurgarh,

Head Office on 24th December, 2005 and a nomination was made by

him in the name of his son Sh.Mahendra Singh which was changed on

19th December, 2006 in the name of Sh.Manjit Singh which was done

by the respondent without obtaining any application or prescribed form

from the depositor as required under the departmental rules as the

depositor had already expired on 18th November, 2006 and therefore,

the respondent failed to maintain the absolute integrity, devotion to

duty and behaved in a manner unbecoming of a Government servant

thereby violating the provisions of Rule 3 (1) (i), 3(1) (ii) & 3 (1)(iii) of

CCS (Conduct) Rules, 1964. The article of charge also stipulated that

the respondent had issued duplicate KVP certificate without obtaining

any orders from the Postmaster Bahadurgarh at his own level and

without obtaining non encashment certificate from the Deputy Director

of A/Cs (Postal), Ambala. The respondent was also charged with

sanctioning the claim of Sh.Raghubir Sing, deceased in the name of

Sh.Manjit Singh Dahiya at his own level without obtaining the orders of

the Postmaster, Bahadurgarh for which he was not competent as per

departmental rules and that various other claims of the deceased

persons were sanctioned by him exceeding his power and using the

power of Postmaster and without any delegation of power to him.

11. The petitioners had contested the claim of the respondent made

in the original application before the Tribunal by contending inter-alia

that the respondent was involved in fraud pertaining to saving bank

accounts and change of nomination and other irregularities while he

was working as APM (SB) Bahadurgarh, Head Office of Rohtak Division

and a vigilance enquiry was under process with Circle Office, Ambala

vide Office letter dated 13th October, 2010. Regarding the respondent

seeking retirement, the petitioners contended that in the notice dated 6

June, 2009, it was advertently read as Fundamental Rule (k)(L) instead

of Fundamental Rule (k)(1) which was clarified by the respondent by his

other notice dated 17th July, 2009. The petitioners however, did not

deny that as per report of the Postmaster, Narnaul Head Office, dated

15th September, 2009 the respondent had attended the Office on 15th

September, 2009 at 9:00 hours and had left the Office at 10:00 hours

without information or permission of the competent authority. The

petitioners also disclosed that a disciplinary proceeding under Rule 14

of the CCS (CCA) Rules, 1965 has been initiated against the respondent

by memo dated 17th May, 2010 wherein the next date of hearing was

5th July, 2010.

12. The pleas and contentions raised by the petitioners were refuted

by the respondent by filing the rejoinder contending specifically that

the petitioners have deliberately made a misstatement that they had

noted the rule FR 56 (k)(1) as rule FR 56 (k)(L) as the Postmaster

Narnaul, Head Office who had forwarded his notice dated 8th June 2009

to DPS Gurgaon in his letter dated 8th June, 2009 had very clearly

stated that the respondent had given notice under FR 56 (k)(1) for

necessary action. Regarding the letter dated 11th September, 2009

which was allegedly served on the respondent on 14th September, 2009,

he asserted that Superintendent of Postmaster Office did not have

competent jurisdiction for issuing the said letter which was also in

gross violation of proviso (c) of FR 56 (k) (1). Regarding the notice of

seeking retirement, he reiterated that his notice of 3 months for

retirement under Rule 56 (k)(1) did not require acceptance under the

said rule and on expiry of 3 months, as he had sought retirement from

15th September, 2009, he stood retired. Regarding the charge sheet

dated 17th May, 2010 and appointment of enquiry officer by order dated

5th July, 2010 and the show cause notice dated 18th February, 2010 it

was averred that they are invalid in law as he had retired w.e.f. 15th

September, 2009 and show cause notice & charge sheet have been

issued after he had retired and after he filed the original application

under Section 19 of the Administrative Tribunal Act seeking the relief of

release of his pension and other retiral benefits. The respondent also

relied on his representation dated 28th May, 2010 in reply to the charge

sheet dated 17th May, 2010.

13. Before the tribunal, the reliance was placed by learned counsel

for the respondent on FR 56 (k)(1) and it was asserted relying on Dinesh

Chandra Sangma v. State of Assam (1977) 4 SCC 441 that no

permission is required for retirement under the said rule unless the

employee is under suspension. However, the learned counsel for the

petitioners had contended before the tribunal that the notice dated 8th

June, 2009 under FR 56 (k)(1) was not in accordance with the rule , as

notice was issued under Rule 48 of CCS (Pension) Rules and since a

disciplinary proceeding was contemplated on account of unauthorized

absence of the respondent, as such no permission to retire him had

been granted and the order withholding the permission for retirement

does not suffer from any infirmity.

14. The tribunal in its order dated 21st July, 2010 has, however,

dealt with the case of the respondent, as if the respondent had sought

voluntary retirement under Rule 48 of CCS (Pension) Rules which

contemplates that on completion of 30 years of service, on a notice

given by employee of 3 months, he would be automatically voluntarily

retired and only impediment to such retirement is that the employee

should not be under suspension. Relying on Tek Chand v. Dile Ram

(2001 SCC (L&S) 555), the tribunal held that since the respondent was

not under suspension, therefore, on service of proper notice under Rule

48 and being eligible on 17th July, 2009 which attained finality, no

permission was required and he deemed to have retired on 18th

October, 2009. The tribunal also held that rejecting the request of the

respondent for retiral benefits on account of disciplinary case is not in

accordance with rules. The relevant order of the tribunal in para 6 and

7 is as under:-

"6. In the light of the above, as the applicant has served a proper notice under Rule 48 of the Pension Rules and being eligible on 17.07.2009, the same attains finality and does not require any permission and as the applicant was not under suspension, he is deemed to have retired on 18.10.2009. Rejecting his request on account of disciplinary case is not in accordance with the rules.

7. Resultantly, O.A is allowed. Impugned orders are set aside. Respondents are directed to deem the applicant retired voluntarily w.e.f. 18.10.2009 and he shall be entitled

to all pensionary benefits, which are as per rules. The same may be released to him within a period of two months from the date of receipt of a copy of this order. No costs.

15. The learned counsel for the petitioners, Mr.Nischal, had

contended that the tribunal has passed the impugned order in a

hasty manner ignoring the correct facts of the case and has

rejected the pleas and contentions of the petitioners without any

valid ground. According to him, the plea of the petitioners was that

the request of the respondent for voluntary retirement was rejected

prior to expiry of 3 months. It was also contended that ratio of Tek

Chand case (Supra) has not been followed.

16. Per contra, the learned counsel for the respondent has very

emphatically contended that neither the tribunal, nor the

petitioners have appreciated the correct facts and have repeatedly

committed an error even in the writ petition in comprehending the

pleas and contentions of the respondent.

17. According to the learned counsel for the respondent, for

retirement under Rule 56 (k)(1), the conditions are that a

Government Servant should have attained the age of 55 years and

3 months notice should be given. He emphasized that the reading

of the notice dated 8th June, 2009 makes it clear that without any

doubt retirement was sought from 15th September, 2009, 3 months

after giving notice on 8th June, 2009 under Rule 56 (k)(1) and not

under Rule 48 of CCS(Pension) Rules 1972. According to him, what

was stated in the notice was that he has not only rendered

qualifying service of more than 30 years as laid down in Rule 48 of

CCS(Pension) Rules 1972 but in any case after the age of 55 years

he is entitled for retirement under Rule 56 (k)(1) of Fundamental

Rule. The learned counsel also emphasized that the

clarification/objection sought by letter dated 3rd July, 2009 was

not warranted as while forwarding the notice dated 8th June, 2009

to the concerned authority, it was categorically mentioned that the

respondent is seeking retirement under Rule 56 (k)(1) of

Fundamental Rules. The learned counsel also asserted that the

plea of the respondent is that under Rule 56 (k)(1) no permission

or acceptance was required on expiry of 3 months, as the

respondent had sought retirement by a notice of more than 3

months from 15th September, 2009, he stood retried and on that

date since no departmental enquiry was pending against him, as

the charge sheet was issued on 17th May, 2010 and he was not

under suspension, therefore, neither it can be held that the

respondent did not retire, nor that the departmental proceeding

could continue against him. He also emphasized that though the

alleged charge is on account of alleged misconduct, however, the

petitioners are also raising the pleas of unauthorized absence

which will not be sustainable in the facts and circumstances of the

case, as the respondent had legally retired from 15th September,

2009. In any case no charge sheet for unauthorized absence was

issued against him.

18. On perusal of the notice dated 8th June, 2009 this Court is of

the opinion that there is no ambiguity in the said notice which is

categorically under Rule 56 (k) (1) of the Fundamental Rules and

the respondent had not sought voluntary retirement under Rule 48

of CCS(Pension) Rules, 1972. If it has been mentioned in the said

notice that he had also rendered service of more than 30 years as

laid down in Rule 48 of CCS(Pension) Rules, 1972 that does not

reflect that he is seeking voluntary retirement under Rule 48 of

CCS(Pension) Rules, 1972. In view of the specific stipulation that

the notice is under Rule 56 (k)(1) and also the later part of the

notice categorically disclosing that the retirement is sought under

Rule 56 (k)(1), the tribunal and the petitioners have committed

grave error in treating the case of the respondent under rule 48 of

CCS (Pensions) Rules, 1972.

19. This stand of the respondent was also reiterated by him in

his letter dated 17th July, 2009 which was sent in reply to

clarification/objection raised by the petitioners to the respondent.

20. Confronted with this situation, the learned counsel for the

petitioners, Mr.Nischal accepts that if the respondent is seeking

retirement under Rule 56 (k)(1) of the Fundamental Rules then

there is no impediment on his retirement from 15th September,

2009, nor the retirement under Rule 56 (k)(1) requires any

permission or approval from any authority provided the employee

has attained the age of 55 years which fact cannot be denied. This

is also admitted by the learned counsel for the petitioners that if

the respondent stood retired on 15th September, 2009 he would be

entitled for his pension and retiral benefits as on that date he was

neither under suspension, nor were the disciplinary proceedings

initiated against him, as the charge sheet for disciplinary

proceedings was issued by Memorandum dated 17th May, 2010

and pursuant to show cause notice issued to him on 18th February,

2010 and letter dated 8th March, 2010, no charge sheet for

unauthorized absence had been issued. This is also admitted that

the respondent was not under suspension when he gave a notice

dated 8th June, 2009 for retirement under FR 56(k) (1) nor was he

under suspension till expiry of the three months periodtill15th

September, 2009, the date from which his retirement came into

effect.

21. The learned counsel for the respondent also on instructions

is categorical that the respondent is not seeking voluntary

retirement under Rule 48 of CCS (Pension) Rules, 1972 nor was it

his plea before the Tribunal and in the notices which were given by

him. According to him mis-appreciation of the provision under

which he had sought retirement will not impact his rights in any

manner. He also contended that on the basis of his notices and

communications, there is no scope even to comprehend that the

voluntary retirement was sought by the respondent. According to

him the respondent had sought retirement under FR 56 (k) (1) and

after expiry of three months period he retired without requiring any

approval or sanction from any authorities.

22. In the circumstances, apparently the tribunal has committed

an error in allowing the petition on the basis that the respondent

had served a notice under Rule 48 of CCS (Pension) Rules, 1972

being eligible on 17th July, 2009 which attained the finality as the

respondent was not under suspension. If this is not the case of the

respondent, the tribunal could not have passed the impugned

order dated 21st July, 2010 holding that the respondent retired

voluntarily w.e.f. 18th October, 2009 and directing the petitioners

to grant all pensionary benefits w.e.f. 18th October, 2009. In the

circumstances the impugned order dated 21st July, 2010 is liable

to be set aside. Since the relief sought by the respondent could not

be denied to him and the learned counsel for the petitioners have

also not shown any grounds on which relief claimed by the

respondent before the Tribunal could be denied to him, in the

circumstances, the writ petition is disposed of setting aside the

order of the tribunal dated 21st July, 2010 in O.A.no.1098 of 2010,

titled „Ved Prakash Sharma v. Union of India & Ors,‟. Instead this

court holds that the respondent retired under Rule 56 (k)(1) of

Fundamental Rule on 15th September, 2009 and thereafter his

absence was not illegal as he had retired on 15th September, 2009

and consequently, the respondent shall also be entitled for his

pensionary and other retiral benefits as per rules on his retirement

from 15th September, 2009.

23. Consequently, the pension and other retiral benefits of the

respondent be released to him within a period of two months from

the date of receipt of copy of this order by the petitioners. Since the

respondent was neither under suspension, nor the disciplinary

proceedings were initiated against him on the date of his

retirement, on 15th September, 2009 memorandum of charge dated

17th May, 2010 and show cause notice dated 18th February, 2010

and letter dated 14th October, 2009 holding that the respondent‟s

absence after 15th September, 2009 is unauthorized, are also

quashed.

24. For the foregoing reasons the writ petition is disposed of with

the directions as detailed in paragraphs herein above. Considering

the facts and circumstances, the parties are however, left to bear

their own costs.

ANIL KUMAR, J.

February 15, 2011. VEENA BIRBAL, J.

„vk‟