Union Of India vs Deepak Sharma
2013 Latest Caselaw 4255 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                           Date of Decision: 18th September, 2013


+     WP(C) NO. 5547 OF 2012 & CM 11331/2012

      UNION OF INDIA                             ..... Appellant
                    Through:         Mr.R.V.Sinha with Mr.A.S.
                                     Singh, Advocates.

                        versus

      DEEPAK SHARMA                             ..... Respondent

                  Through:           Mr.Naresh Kaushik, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT
      HON'BLE MR. JUSTICE NAJMI WAZIRI

%     MR. JUSTICE NAJMI WAZIRI (Oral)

1. The petitioner being aggrieved by an order of the Central

Administrative Tribunal in O. A. 4162 of 2010 dated 5th March,

2012, ("impugned order") has preferred this petition. The

impugned order directs the petitioner to:

"...consider the applicant's letter dated 31.08.2007 requesting for voluntary retirement, as per the provisions of Rule 48-A within a period of nine weeks from the date of receipt of a certified copy of this order. It goes without saying that subsequent to the issue of acceptance

of his voluntary retirement, the applicant would be entitled to all the retrial (sic: retiral) benefits including Pension, Gratuity, Leave Encashment etc. as per law and the respondents - MEA would be entitled to adjust the amount equivalent to the notice period that would be as per the prescribed rules. It is noticed that applicant is partly responsible for the confusion. Therefore, we make it clear that the applicant will not be entitled to any interest on the arrear amount of his entitled retirement due. Let the exercise as ordained in the above orders be completed within a period of three months from today."

2. The facts of the case are that the respondent/applicant, having

worked with the appellant, by a letter of 31st August, 2007 sought

voluntary retirement after completing twenty two years of

service. The genesis of this request lay in the petitioner's need to

respond to his letter of appointment for the post of FS-4 from the

United Nations Integrated Mission in Timor-Leste which he had

received a few weeks prior thereto. The said letter required him

to convey his acceptance within seven days from the date it was

issued, i.e. 18th July, 2007. By a letter of 20th July, 2007, he

sought the requisite permission to accept the offer of appointment

and by another letter of 13th August, 2007 he reiterated his

request. Sensing that the time available with him was very little,

by a letter dated 31st August, 2007 he requested for voluntary

retirement with effect from the next day, i.e., 1st September,

2007. He felt he was eligible to invoke this option under the

applicable Service Rules, i.e. after the completion of twenty two

years of service. He also stated that if for any reason the

application for voluntary retirement was not acceptable, then the

letter may be treated as notice for resignation from government

service with immediate effect. He then proceeded to join the

United Nations' service. Vigilance clearance was accorded to

him on 25th July, 2007. His resignation was accepted with effect

from 12th September, 2007.

3. The respondent/applicant's contention before the Tribunal was

that his offer of resignation was purely conditional and was to be

considered only in case the application for voluntary retirement

was not acceptable for any reason. Even in such eventuality, he

would have expected to be intimated the reasons for the

declination of the application for voluntary retirement. However,

the letter of 12th September, 2007 accepting his resignation did

not contain even a whisper of why his request for voluntary

retirement was rejected. He made representations to the

Government seeking review, i.e. that the acceptance of the

resignation be treated as voluntary retirement from government

service and that the term of service with the United Nations be

treated as his being on deputation. This request was declined by

an order dated 9th June, 2010. Incidentally, this consideration of

review and the communication of the government decision were

made pursuant to an order dated 18th April, 2010, passed by the

Tribunal in an earlier O. A. filed by the respondent/applicant.

4. In the present impugned order, the Tribunal has considered

whether the respondent/applicant would be entitled under Rule

48-A of the CCS (Pension) Rules, 1972, and reasoned that

although it required three months' notice in writing to the

appointing authority to retire voluntarily from the service, there

was urgency in this case and that the respondent/applicant had

already requested more than forty days earlier, i.e., on 20 th July,

2007, seeking to be relieved so that he could join the United

Nations Mission, but the appellant / government failed to

respond. That it was out of exasperation that the letter of

resignation was written. Indeed, the Additional Secretary

(Admin), MEA, had noted in the official file on 31st August,

2007: "He came to see me to request that he be given a

sympathetic hearing. I do not know if there is any constraint in

relieving him, if there is a way without infringing any

regulations, and would request that it be done". The Tribunal

reasoned that the resignation had to be clear and unconditional. It

held the respondent/applicant's letter to be a conditional

resignation and relied upon the judgements of the Supreme Court

in P. K. Ramachandra Iyer v Union of India, (1984) 2 SCC 141

and Dr. Praba Atri v State of Uttar Pradesh, (2003) 1 SCC 701.

In those cases, the Supreme Court had set aside the

communication purporting to accept the resignations concerned.

The Tribunal held that although the circumstances in the present

case may be different, but the law in Dr. Praba Atri's case

(supra) would hold the field and would apply. Further relying on

the ratio in Yashwant Hari Katakkar v UOI, (1996) 7 SCC 113

the Tribunal reasoned that in this case too, the government

should favourably consider the grant of retiral benefits, since the

respondent/applicant had already put in more than twenty two

years of qualifying service. The Tribunal found that the

respondent/applicant had applied forty days earlier (to the letter

of voluntary retirement cum resignation) for permission to join

the United Nations Mission and in any case the government had

twelve clear days to decide the application for voluntary

retirement before it accepted - on 12th September, 2007 - the

offer of resignation. Therefore, the argument of the government

that only one day's notice was given for responding to the

respondent/applicant's letter was found untenable and the order

dated 9th June, 2010, though speaking, was considered arbitrary

and was accordingly quashed.

5. Learned Counsel for the appellant, Mr. R. V. Sinha, submitted

that the impugned order is unsustainable. He contended that the

letter dated 31st August, 2007 is unambiguous in its language and

meaning. He submits that the letter firstly requests for a

voluntary retirement, failing which, it offers resignation with

immediate effect. The respondent/applicant did not wait even for

a day to receive any response from the Government and

proceeded to join the United Nations Mission. His was an I-

couldn't-care-less-and-do-as-you-wish-as-I-have-resigned

attitude. He contended that the aforesaid letter could not be

treated as a request under Rule 48-A (1) for being considered for

voluntary retirement.

6. Mr. Naresh Kaushik, learned counsel for the respondent/applicant

reiterated the contentions made on behalf of the

respondent/applicant before the Tribunal. He further argued that

under Rule 48-A (3-A) (b), it was always open to the

Government to curtail the period of notice of three months on

merits and on the appointing authority being satisfied that the

period of notice would not cause any administrative

inconvenience, the period could be relaxed (on the condition that

the Government servant would not apply for commutation of a

part of his pension before the expiry of the notice period). He

also submitted that the respondent/applicant had categorically

offered to the government that three months' salary be recovered

in lieu of the three months' mandatory notice for voluntary

retirement from the leave due to him. He further submitted that

the respondent/applicant had duly complied with the requirement

of Rule 48-A, but the appellant had failed to act diligently, fairly

and responsibly. It had, without application of mind, rejected the

bona fide request for voluntary retirement and instead rushed to

accept his resignation from government service.

7. This Court has considered the contentions of the parties and

notices that the requirement under Rule 48-A (1) is that the

Government servant, upon being eligible for voluntary

retirement, must first give a notice in writing under to the

appointing authority, of not less than three months. It is only

after this specific request is made, that the applicant could invoke

the benefit of sub-rule (3-A) (a) whereby the "government

servant referred to in sub-rule (1) may make a request in writing

to the appointing authority to accept notice of voluntary

retirement of less than three months giving reasons therefor". So

it is only upon the application being made three months prior to

the intended date of retirement that a request for lessening or

waiving the period of waiting for the three months could be

made. When the request is made in this manner, the Appointing

Authority could exercise the discretion, based upon the

exigencies of the case, for relaxation of the three months' period

under Rule 48-A (3-A) (b). In the present case, just the exact

opposite was done, i.e., the application for voluntary retirement

was made to be with immediate effect and the three months'

notice period was sought to be adjusted against pay for the

subsequent three months; the respondent/applicant had

misconstrued the relevant Rule. Insofar as the

respondent/applicant had not made any request in writing three

months earlier, and had instead notified the government to accept

his resignation with immediate effect from 31st August, 2007, the

aforesaid provision for relaxation of three months' period would

not be available to him. In the circumstances, the government

was well within its rights to accept the resignation as was done in

the instant case. The Tribunal had misdirected itself in construing

the applicability of Rule 48-A (3-A) (b) and in concluding that

twelve days were sufficient for the government to process the

request of the respondent/applicant for voluntary retirement.

8. For the reasons aforesaid, the impugned order is set aside and the

petition is allowed. There shall be no order as to cost.

NAJMI WAZIRI (JUDGE)

S. RAVINDRA BHAT (JUDGE)

SEPTEMBER 18, 2013