Commissioner Of Police, Delhi vs Sh. Satish Chander
2014 Latest Caselaw 7098 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                         Date of Decision: 23.12.2014

%     W.P.(C) 2951/2013
      COMMISSIONER OF POLICE, DELHI           ..... Petitioner
                  Through: Mr. V.K. Tandon & Mr. Yogesh
                            Saini, Advocates.

                          versus

      SH. SATISH CHANDER                                  ..... Respondent

                    Through:            Mr. Jayant Pawar, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT
      HON'BLE MR. JUSTICE VIPIN SANGHI


VIPIN SANGHI, J. (OPEN COURT)

1. The petitioner Commissioner of Police, has preferred the present writ petition under Article 226 of the Constitution of India to assail the order dated 04.01.2013 passed by the Central Administrative Tribunal (CAT/ Tribunal) in O.A. No.3781/2011. By the impugned order, the Tribunal allowed the Original Application preferred by the respondent/ applicant and set aside the orders dated 24.08.2011 and 02.09.2011 passed by the petitioner. By these orders, the request of the applicant to withdraw the notice for voluntary retirement was rejected. The Tribunal has also reinstated the applicant in service with all consequential benefits.

2. The facts in brief are that the applicant was initially inducted as Head

Constable (Ministerial) in Delhi Police (DP) on 28.04.1982. He was promoted as Sub-Inspector (Ministerial) on 10.02.2009. He availed of sanctioned Earned Leaves (EL) from 27.12.2010. Vide an application dated 28.01.2011, he sought extension of his EL by further 21 days, which was not granted. At that stage, he tendered his notice for voluntary retirement on 03.02.2011, to be effective from 01.08.2011. He also sought Extraordinary Leave with effect from 28.01.2011 to 31.07.2011. However, before the intended date, i.e. 01.08.2011, vide letter dated 16.03.2011, he withdrew his request for voluntary retirement. We may note that this was the first occasion when the applicant made his application to seek voluntary retirement from a future date and before the arrival of the said date, he withdrew the said application. During this period, the applicant sought lighter duties, and on his request, he was transferred to Police Control Room (PCR) vide order dated 08.08.2011. The applicant sought to give the excuse of having family troubles for his first episode of his tendering notice for voluntary retirement, and withdrawing the same and seeking change of his duties.

3. The applicant once again gave notice for voluntary retirement on 13.05.2011, to be effective from 01.09.2011. Simultaneously with his request for seeking voluntary retirement with effect from 01.09.2011, the applicant requested for grant of 89 days EL beginning from 16.05.2011. This request of the applicant was considered by the petitioner in the light of his applicant to seek voluntary retirement, and sanctioned by the competent authority. On 08.06.2011, the competent authority passed an order accepting the notice of voluntary retirement, which was also communicated

to the applicant. Barely four days before the expiry of 89 days EL, on 08.08.2011, the applicant sought to withdraw his application to seek voluntary retirement made on 13.05.2011. The competent authority vide communication dated 24.08.2011 rejected the request of the applicant to withdraw his notice for voluntary retirement. The Joint Commissioner of Police (Northern Range), after granting appearance to the applicant on his request, again rejected the request for withdrawal of the notice of voluntary retirement on 02.09.2011. In this background, the respondent preferred the aforesaid Original Application before the Tribunal.

4. The applicant sought to place reliance on a string of decisions of the Supreme Court to submit that since the withdrawal of the notice for voluntary retirement had been made before the date of actual release from service, the said withdrawal was valid and the applicant was entitled to be deemed to continue in service and that the petitioner could not have refused to permit the respondent to withdraw his notice of voluntary retirement. The decisions relied upon by the applicant were the following:

"Balram Gupta Vs. Union of India & Anr., 1987 (Supp) SCC 228; and reiterated in catena of judgments, including

J.N. Srivastava Vs. Union of India & Ors, (1998) 9 SCC 559; Union of India & Anr. Vs. Wing Commander T. Parthasarthy, (2001) 1 SCC 158;

Shambu Murari Sinha Vs. Project & Development India Ltd. & Anr., AIR 2002 SC 1341; and

Srikantha S.M. Vs. Bharat Earth Movers Limited, (2005) 8 SCC 314."

5. The Original Application was contested by the petitioner, who primarily emphasized upon the conduct of the applicant in seeking to play hide and seek with it, and using the modus operandi of repeatedly submitting his application to seek voluntary retirement, and withdrawing it before the effective date, so as to avail of leave and not join duties.

6. The Tribunal, in the face of the aforesaid decisions, allowed the Original Application in the terms already indicated hereinabove.

7. The submission of learned counsel for the petitioner, firstly, is that the applicant had misused the process of making repeated applications for seeking voluntary retirement from a future date to his advantage, by availing of leaves in the garb of the said notices. Learned counsel further submits that this conduct of the applicant itself tantamounts to misconduct, as he had misled the petitioner department into granting him Extraordinary Leaves on the premise that he had applied for seeking voluntary retirement from a future date. It is also submitted that the performance of the applicant was not satisfactory. Learned counsel further submits that there was no justification in the facts of the present case to grant all consequential benefits to the respondent applicant, when he was himself responsible for the state in which he found himself.

8. Learned counsel for the applicant, on the other hand, defended the impugned order by submitting that the applicant was entitled in law to withdraw his notice for voluntary retirement before the effective date. He further submits that the applicant had availed of his EL, which he was entitled to in law, and the petitioner cannot have a grievance in that regard.

9. In view of the well-settled legal position, as adumbrated by the Supreme Court in Balram Gupta (supra) and other decisions referred to above, there is no doubt that in the facts of the present case the respondent applicant was entitled to withdraw his notice for voluntary retirement before the effective date, i.e. 01.09.2011, which he, admittedly, did. In the facts of the present case, the petitioner could not have refused his request for withdrawing his notice for voluntary retirement and, thus, the said rejections by the petitioner vide orders dated 28.04.2011 and 02.09.2011 were rightly quashed by the Tribunal. However, it appears that the respondent has used, or rather misused the system. Merely because he may have had EL to his credit, it does not follow that the respondent applicant could have availed of the same without due permission of the competent authority. It appears that on the premise that he is proceeding to retire voluntarily, the applicant secured EL and thereby avoided the performance of his duties.

10. The petitioner has set out the leaves availed of by the applicant, inter alia, in respect the years 2010 and 2011. The position is as follows:

Sl. No. Earned Leave Periods

1. 26 days E.L. along with 18.01.2010 to 12.02.2010 4 days permission

2. 4 days E.L. along with 5 01.11.2010 to 04.11.2010 days permission

S. No. Earned Leave Periods

1. 33 days E.L. along with 26.12.2010 to 28.01.2011 4 days permission

2. 16 days E.L. 28.01.2011 to 13.02.2011

3. 19 days E.L. along with 14.02.2011 to 04.03.2011 2 days permission

4. 89 days E.L. 16.05.2011 to 13.08.2011

11. Thus, the applicant not only availed of EL, but was also permitted other leaves in the background that his application to seek voluntary retirement was pending, on two occasions. In this background, the grant of all consequential benefits upon reinstatement to the applicant, in our view, was wholly unjustified. In fact, the respondent applicant was himself to blame for the situation in which he found himself. Therefore, even though the respondent was entitled to reinstatement upon quashing of the orders dated 24.08.2011 & 02.09.2011, there was not justification for grant of any back wages for the period that he had remained out of service till his Original Application was allowed. We, therefore, modify the relief with regard to grant of "all consequential benefits" by making it clear that the applicant was not be entitled to any back wages for the period from 01.09.2011 to 04.01.2013.

12. When this writ petition was preferred, vide order dated 07.05.2013, this Court had stayed the operation of the order of the Tribunal. The result

is that the respondent has continued to remain out of service. In our view, interest of justice would be met by directing that for the period from 04.01.2013 till date, the respondent is released 50% of the wages and emoluments.

13. The Tribunal has taken note of the conduct of the respondent in paragraph 13 of the impugned order, which reads as follows:

"13. Before we part with this order, we may say that the provisions contained in Rule 48-A of the CCS (Pension) Rules, 1972 shall not be allowed to be misused by any Government servant. Without attributing any such motive on the applicant, we do not rule out any such possibility after having seen the facts in this case where the applicant initially proceeded on leave which has already been sanctioned for a specified period. Thereafter, he applied for extension of leave but his request was rejected. Then, he gave the requisite advance notice of three months before availing himself of the voluntary retirement. However, he withdrew the notice before the date of retirement has reached. The applicant repeated this process once again. In other words, the period which has not been allowed to be taken as extended period of leave, one could avail it as notice period of three months for the voluntary retirement. Once the purpose of taking leave has been served during the said notice period, the notice for voluntary retirement itself is withdrawn. Such action on the part of the Government servant would amount to misconduct. However, it is for the respondents to take such a view in individual cases. Then the consequences will follow."

14. In the light of the aforesaid discussion, we reserve the right of the petitioner to proceed against the respondent departmentally, if they are so advised and if the conduct of the applicant is considered to tantamount to misconduct. The respondent would also be entitled to continuity of service.

All other consequential benefits including notional fixation of salary and reckoning of the period the applicant was kept out of service, as having been spent on duty for the purposes of pension, terminal benefits and other retiral dues shall be included/ reckoned.

15. The writ petition stands disposed of in the aforesaid terms.

VIPIN SANGHI, J.

S. RAVINDRA BHAT, J

DECEMBER 23, 2014 B.S. Rohella