Syed Mohd. Jawed Alam vs The General Manager Northern ...
2014 Latest Caselaw 2566 Del

     $~17
     * IN THE HIGH COURT OF DELHI AT NEW DELHI

     +           W.P.(C) 736/2014 & CM No.1477/2014

     %                           Date of decision: 20th May, 2014

      SYED MOHD. JAWED ALAM              ..... Petitioner
                   Through : Mr. Rajeev Sharma, Adv.

                        versus

      THE GENERAL MANAGER NORTHERN RAILWAYS &
      ORS.                              ..... Respondents
                   Through : Mr. J.K. Singh and
                             Mr. Neeraj Atri, Advs.

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J. (Oral)

1. By a separate order, we have dismissed the writ petition. We

now pen down our reasons for doing so.

2. The petitioner challenges the order dated 25th April, 2012

whereby the Central Administrative Tribunal has dismissed the

O.A.No.3581/2011 filed by him. The petitioner was aggrieved by

the order dated 22nd February, 2011 passed by the respondents

accepting the petitioner‟s request for voluntary retirement with

WP(C) No.736/2014 page 1 of 13 immediate effect after deleting the allegations made by him in an

application for voluntary retirement. Before the Tribunal, he

sought quashing of this order and the consequential relief to

continue him as Chief Inspector, Catering in the Northern Railways

with all benefits.

3. The facts giving rise to the instant writ petition are within the

narrow compass and are undisputed. The petitioner was posted as

the Chief Catering Inspector with the Northern Railways at the

relevant time. On the 30th of September, 2010, the petitioner

submitted an application dated 30th September, 2010 stating that

"due to communal and corrupt environment he was unable to work

and therefore request for voluntary retirement with effect from 31 st

December, 2010. The petitioner also requested the respondents to

sanction Leave Against Pay (`LAP‟) to him with effect from 4th of

October, 2006 to 16th December, 2010. It was also clearly

indicated there under that by the letter dated 30th September, 2010,

the petitioner was giving three months prior notice as required for

voluntary retirement.

WP(C) No.736/2014 page 2 of 13 The request of the petitioner were forwarded by the Chief

Commercial Manager (Catering) on the 19th of October, 2010 and

D and PR clearance was obtained on the 23rd of December, 2010.

4. The competent authority, i.e., the Chief Commercial

Manager (Catering) considered and noted the general allegations

made by the petitioner. In view thereof, it was directed that

information of specific instances may be sought from the

petitioner.

5. As such, a letter dated 30th December, 2010 was addressed

by the General Manager (P) of the Northern Railways to the

petitioner asking him to spell out specific instances of the matter

stated by him. The petitioner was informed that decision on his

request for voluntary retirement would be taken after receipt of a

reply.

6. As the petitioner did not respond, a reminder dated 31st

January, 2011 was issued to him calling upon the petitioner to

respond within three days failing which "it will be presumed that

allegations made by you are not correct and action will be taken

WP(C) No.736/2014 page 3 of 13 on your request for voluntary retirement after deleting the

allegations made by you".

7. The respondents were duty bound to give the petitioner

reasonable opportunity to respond. After waiting for a reasonable

time, the petitioner‟s request for voluntary retirement was

examined after deleting the allegations made by him and was

accepted by a letter dated 22nd February, 2011.

8. After receipt of the said letter, he submitted representation

dated 26th February, 2011 requesting the respondents to recall the

order dated 22nd February, 2011 and to take him back into service

which was follow up another communication of 1st April, 2011.

The respondents have submitted that these requests were not

accepted and by a letter dated 21st July, 2011, the petitioner was so

informed.

9. It is to be noted that the petitioner at no point of time,

withdrew his request for voluntary retirement. After the same was

processed by the respondents, the petitioner challenged the same by

way of O.A.No.3581/2011, which was filed in September, 2011.

WP(C) No.736/2014 page 4 of 13 The respondents contested the same and filed a detailed

counter affidavit denying all allegations made by the petitioner.

After detailed consideration of the pleadings of the parties, the

Tribunal passed the impugned order dated 25th April, 2012

rejecting the petitioner‟s claim, resulting in the present writ

petition.

10. Before us the petitioner has primarily contended that as per

instructions contained in para 11 and 12 of the Master Circular

no.35, dated 9th November, 1977 issued by the Railway Board

under letter No.E (P&A) 1 - 77/RT/46, the competent authority

was empowered to consider an application for voluntary retirement

for service within the period of three months from when it was

made only. It is submitted that the same could have been accepted

or rejected only within such period of three months. The

submission is that Rule 67 of the Railway Services (Pension) Rules

1993 bound the consideration of the petitioner‟s request and

mandated that the request for voluntary retirement from service had

to be accepted within the period of three months.

WP(C) No.736/2014 page 5 of 13

11. The petitioner has also contended that the respondents have

placed reliance on paras 11 and 12 of Master Circular no.35 dated

9th November, 1977 issued by the Railway Board under letter No.E

(P&A) 1 - 77/RT/46.

12. The petitioner contends that notice dated 30th September,

2010 sent by the petitioner for voluntary retirement was a

conditional notice. As per clause III of this master circular, no

condition could have been attached to the notice of voluntary

retirement and the conditional notice required to be rejected

outright at the General Manager level itself. Therefore such notice

could not have been considered by the respondents. It is therefore

contended that the acceptance of the petitioner‟s request by the

letter dated 22nd February, 2011 was illegal and deserves to be

quashed and therefore, impugned order dated 25 th April, 2012 is

contrary to the binding rules as well as the directions contained in

the master circular.

13. We may firstly consider the petitioner‟s contention based on

condition III as contained in Master Circular No.35 dated 9th

WP(C) No.736/2014 page 6 of 13 November, 1977. For this purpose, condition No.(iii) deserves to

be extracted and reads as follows:-

"No, condition of any nature, whatsoever, should be attached to a notice of voluntary retirement such conditional notice should be rejected at the GM‟s levelled."

14. Let us now examine the petitioner‟s request. In the letter

dated 30th September, 2010, the petitioner has stated that he was

unable to work with the respondents due to communal and corrupt

environment and that for this reason he was seeking voluntary

retirement from service. The letter contained no condition at all

for acceptance of the voluntary retirement. The petitioner

merely tendered his explanation for submitting the request for

voluntary retirement. His grievance that environment was

communal and corrupt was really disclosing the reasons for his

request. The petitioner‟s contention that the request made in the

letter dated 30th December, 2010 was conditional, is not supported

by reading of the communication and is wholly misconceived.

15. The petitioner has made a second submission that the request

made on 30th September, 2010 had to be processed and acceptance

WP(C) No.736/2014 page 7 of 13 or rejection thereof had to be communicated within three months in

terms of the Master Circular dated 9th November, 1977 based on

Rule 67 of the Railway Services (Pension) Rules, 1993.

16. Rule 67 has been extracted by the Tribunal in the impugned

order. For the purposes of convenience, the same is set down

hereunder as well: -

"67. Retirement on completion of 20 years qualifying service - (1) At any time after a railway servant has completed twenty years‟ qualifying service, he may, by giving notice of not less than three months in writing to appointing authority retire from service:

Provided that this sub-rule shall not apply to a railway servant including Scientists or technical expert who is -

(i) on assignment under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes;

(ii) posted abroad in foreign based offices of the Ministries or Departments;

(iii) on a specific contract assignment to a foreign Government unless, after having been transferred to India, he has resumed the charge of a post in India and served for a period of not less than one year.

WP(C) No.736/2014 page 8 of 13 (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority:

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.

(3) (a) A railway 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 that three months giving reasons therefore;

(b) On receipt of a request under clause (a), the appointing authority subject to the provisions of sub-rule(2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the railway servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.

(4) A railway servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority:

Provided that the request for withdrawal shall be made before the intended date of his retirement.

(5) The pension and death-cum-retirement gratuity

WP(C) No.736/2014 page 9 of 13 of the railway servant retiring under this rule shall be based on the emoluments as defined under rules 49 and 50 and the increase not exceeding five years in his qualifying service shall not entitle him to any notional fixation of pay for purposes of calculating pension and gratuity.

(6) This rule shall not apply to a railway servant who retires from railway service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.

Explanation - For the purpose of this rule, „appointing authority‟ means the authority which is competent to make appointments to the service or post from which the railway servant seeks voluntary retirement".

17. Sub-rule (1) of Rule 67 enables an employee to seek, who

has completed 20 years of service to seek voluntary retirement

from service after giving three months notice.

However, under sub-rule (3) the employee does not have an

absolute right of favourable consideration of his request. Sub-rule

(2) mandates acceptance of the request by the appointing authority.

It also postulates that where the appointing authority does not

refuse to grant the permission for retirement before the expiry of

the period specified in the said notice, the retirement shall become

WP(C) No.736/2014 page 10 of 13 effective from the date of expiry of the said period. Thus, if the

authority fails to pass an order accepting or rejecting the request

within three months, the request is deemed to have been accepted.

Sub-rule (2) therefore incorporates a provision for deemed

acceptance of the request for voluntary retirement.

18. The Tribunal has noted the spirit, object and intendment of

Rule 67 which is that the authorities should not inordinately delay

consideration of request for voluntary retirement. For this reason

an outside the period for rejection of the period is set out. If no

decision is taken, the rule stipulates that the request would be

deemed to have been accepted.

19. Inherent in this stipulation is the requirement that in case the

employee desires to withdraw the request he has to do so before the

intended date of retirement. Upon failure to pass an order rejecting

or accepting the request, the consequence is not rejection of the

request but is its deemed acceptance unless the applicant had

withdrawn the request for voluntary retirement within the

stipulated period.

WP(C) No.736/2014 page 11 of 13

20. In the instant case, the admitted position is that despite the

notices dated 30th December, 2010 and 31st January, 2011, the

petitioner did not withdraw his request for voluntary retirement. In

fact by the letter dated 30th December, 2010, the petitioner was

informed about the postponement of the decision of the competent

authority to enable the petitioner to place material to support the

allegations. No objection was made by the petitioner. By the

communication of 31st January, 2011, the respondents informed the

petitioner that in case he failed to respond, it would be presumed

that the allegations made by him were not correct. More

importantly, the petitioner was notified that action would be taken

on his request for voluntary retirement after deleting the allegations

made by him.

The petitioner again did not inform the respondents that he

did not want to press the request for voluntary retirement, even

though he was aware that the respondents were processing his

request for voluntary retirement.

In these circumstances, the Tribunal has rightly held that the

petitioner had indirectly given his tacit assent/approval to the

WP(C) No.736/2014 page 12 of 13 respondents to proceed in the matter to process his application for

voluntary retirement.

21. In view of the above discussion, we are of the view that the

challenge of the petitioner has been rightly rejected by the

Tribunal. There is no merit in this writ petition which is hereby

dismissed.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE MAY 20, 2014 mk

WP(C) No.736/2014 page 13 of 13