Govt. Of Nct Of Delhi And Ors vs Rajinder Singh
2014 Latest Caselaw 5025 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             DECIDED ON: 09.10.2014

+                        W.P. (C) 5730/2012
                         C.M. Nos.11729/2012 & 8276/2014

       GOVT. OF NCT OF DELHI AND ORS                 ..... Petitioner
                     Through: Mr. Nitesh Kumar Singh, proxy for
                     Mrs. Avnish Ahlawat, Advocate.

                    versus
       RAJINDER SINGH                             ..... Respondent

Through: Dr. M.P. Raju with Ms. Thressiamma K.P., Advocates.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI S.RAVINDRA BHAT, J. (OPEN COURT)

1. The Government of NCT of Delhi (hereafter referred to as "GNCTD") is aggrieved by an order of the Central Administrative Tribunal (hereafter referred to as "CAT") dated 1.6.2012, whereby it allowed OA No.159/2010. That application had been disposed of by an earlier order but was subject matter of W.P.(C)5502/2010, which was disposed of on 18.8.2010. The Division Bench had then required the CAT to look into the certain specific aspects and render findings. The applicant/respondent in the present case had challenged the refusal by the GNCTD through its order dated 18.12.2009, to permit him to withdraw the notice for voluntary

W.P.(C)5730/2012 Page 1 retirement given by him.

2. Briefly, the facts are that the applicant was originally recruited as Head Constable of the Delhi Police on 2.6.1976; he was subsequently promoted as Assistant Sub Inspector (Ministerial) in 1986 and later promoted as Sub-Inspector (Ministerial) w.e.f. 1.3.1998. On 31.7.2006, the applicant was transferred to the Police Training College, Jharoda Kalan and was assigned duty as HAG/PTC. In that position, in the last week of December, 2006, apparently, the applicant was in daily contact with the Principal, Training College, an Additional Commissioner of Police ranking officer - impleaded in the original proceedings before the CAT as the 6th respondent. The said 6th respondent has been impleaded as 6th petitioner, although, the Government counsel appearing on behalf of GNCTD was unable to show any authorisation by the said authority.

3. To continue with the narrative, the incident which triggered the submission of letter for voluntary retirement pertains to the deposit of `20,000/- in the account of 6th respondent. The latter alleged that this was done unauthorizedly and it amounted to alleged misconduct. The applicant submitted his resignation letter on 17.4.2007; his case before the CAT was that subsequently after consulting his family members, he went back to retract from the resignation, but was advised that a notice for voluntary retirement be substituted which he accordingly did on 18.4.2007. This notice for voluntary retirement curiously was processed and cleared at four levels and accepted the same day. The respondent/applicant sought to withdraw the notice for voluntary retirement on 25.4.2007 but his request was turned down on 18.7.2007. His further representation to higher authorities met with the same fate when ultimately on 8.12.2009 the request for withdrawal

W.P.(C)5730/2012 Page 2 of voluntary retirement was rejected. In the circumstances, he approached the CAT.

4. After the remand, the CAT went into the record including the pleas taken by the parties. The GNCTD in its affidavit specifically referred to the incident which led to the submission of the furnishing of the resignation letter and its substitution with the notice for voluntary retirement: -

"The then P.PTC immediately informed Spl.CP/Trg Sh. S.B. Deol on telephone and narrated him entire incident. Since the then P.PTC was on leave that day he cancelled his programme as it became very essential for him to find out who has deposited this Rs.20,000/- in his account. The then P.PTC contacted Sh. Balbir Singh ACP/HQ and told him about the incident and directed him to make available one or two ACPs who were present in the PTC and also informed his S.O. The then P.PTC also told ASI Jagdish to immediately reach PTC from UTI Head Quarter along with the deposit form provided by Sh.

Devender Singh. The then P.PTC reached PTC at around 4 PM on 17.4.2007 and called ACP/HQ Sh. Balbir Singh. Meanwhile the then P.PTC had called ACP Sh. Udaiveer Singh Rathi who was also present. Meanwhile ASI Jagdish and Ct. Gajender Singh also reached PTC. The then P.PTC narrated the entire incident to ACP/HQ Balbir Singh and showed him the deposit form. On seeing the deposit form Sh. Balbir Singh ACP/HQ immediately recognized the handwriting and said that this handwriting was of SI Rajinder Singh the then HAG/PTC. Sh. Balbir Singh, ACP/HQ could recognize the handwriting immediately as every day he was reading applicant's noting on the file. The then P.PTC called Sh. Ram Niwas SO to Spl CP/Trg and his SO Sh. Balbir Singh. Then the applicant was called and the then P.PTC asked the applicant whether he had deposited Rs.20,000/- in his account on 13th April 07 which applicant straightway denied twice. Then the then P.PTC told applicant that he have got sufficient material to establish that applicant have deposited Rs.20,000/- in the then P.PTC's account and all informations were available with the then P.PTC. On showing the deposit form to the applicant, he accepted that applicant had deposited Rs.20,000/- in the then P.PTC account on 13th April 07 when he asked applicant why he

W.P.(C)5730/2012 Page 3 did so the applicant relied that since P.PTC was not getting salary for the last six/seven months applicant thought the then P.PTC was in dire need of money and for that he deposited Rs.20,000/- in the then P.PTC's account to help him When the then P.PTC asked applicant why did not applicant informed him about it, applicant had no reply. Idea behind depositing Rs.20,000/- in the then P.PTC's account was to exploit the situation that the then P.PTC was not getting salary and to bribe the then P.PTC. The then P.PTC told applicant hat since he applicant has committed a very serious offence applicant was liable for prosecution but if applicant did n't want prosecution applicant will have to submit his resignation. The applicant immediately submitted his resignation, apologising for his misconduct and breach of faith. The then P/PTC informed the then Spl CP/Trg. Sh. S.B. Deol on phone about this development, as the then Spl. CP/TRG was not present in the office. All these deliberations took place in the presence of two ACPs, SO to Spl. CP/Trg., the then P.PTC's Staff officer, ASI Jagdish and Ct. Gajender Singh.

Later in the evening around 9:30 P.M. the applicant along with this wife and son visited the residence of the then P.PTC and requested with folded hands that insisted of accepting applicant's resignation applicant should be allowed to take voluntary retirement so that applicant could get Pensionary Benefits as applicant is the only earning hand in his family. The then P.PTC told him to meet him in the office next day and disposed of the applicant, his wife and son.

On 18/4/2007 at around 11 AM when Sh. S.B. Deol, the then Spl. CP/Trg. came to office, the then P.PTC went to him and again briefed him about the entire incident and also showed him the resignation submitted by the applicant, the then P.PTC's UTI Bank statements and the deposit form through which the applicant deposited Rs.20,000/- in the then P.PTC's accounts. It was decided that the then P.PTC should accept his resignation because by filing a criminal case would lead to embracing situation for the then P.PTC during trials. However the then P.PTC came to his chamber. The applicant appeared before the then P.PTC and requested that instead of accepting applicant's resignation applicant may be allowed to take voluntary retirement as for his fault his children should not suffer.

W.P.(C)5730/2012 Page 4 The then P.PTC also gave a thought to it and discussed with other officers and found that applicant may have an opportunity to withdraw his resignation and later applicant may also go for litigations. The then P.PTC again discussed the matter with the then Spl CP/Trg Sh. S.B. Deol and it was decided that applicant be allowed to take voluntary retirement. Applicant applied for voluntary retirement and immediately after obtaining a vigilance clearance the orders were passed on the same day i.e. 18/4/07. The amount of Rs.20,000/- which applicant deposited in the P.PTC's salary account was also returned to the applicant on the same day against applicant's proper receipt."

The 6th respondent, i.e., the P.PTC adopted the above submissions in his separate affidavit filed before the CAT. During the pendency of the matter before the CAT - after remand order by this Court on 18.08.2010 - the Delhi Police curiously passed an order purporting to amend the date of acceptance of voluntary retirement application from 18.4.2007 to 19.4.2007. This order dated 8.9.2010 reads as follows: -

"AMENDMENT Please read date of voluntary retirement as 19.04.2007 (F.N.) instead of 18.04.2007 (A.N.) in r/o voluntary retirement order of Ex.SI (Min.) Rajinder Singh No.D-2 issued vide Order No.2379-478/Estt./PTC dated 18.04.2007."

6. The CAT after considering the submissions of the parties and taking note of the decision of the Supreme Court including Balram Gupta v. Union of India, 1987 (Supp) SCC 228, J.N. Srivastava v. Union of India, AIR 1999 SC 1571and J.K Cotton Spinning and Weaving Mills Company Ltd. v. State of Uttar Pradesh, AIR 1990 SC 1808, was of the opinion that in the facts and circumstances of the case, the GNCTD could not have curtailed the notice period so as to preclude the respondent/applicant the right to seek

W.P.(C)5730/2012 Page 5 withdrawal of his resignation. It, therefore, set aside the rejection order and directed his reinstatement.

7. Learned counsel for the GNCTD urged that in the facts and circumstances, the CAT should not have interfered with the order of rejection. He pointed out that in terms of Rule 48 (2) of the CCS (Pension) Rules, a public servant who gives notice for voluntary retirement is precluded from withdrawing his resignation except with the specific approval of the competent authority. In the given facts of this case, having regard to the respondent's conduct, specially what was alleged against him, the GNCTD was of the opinion that approval to withdraw could not be given. Learned counsel also stated that the facts clearly pointed out that the amount of Rs.20,000/- was in fact deposited by the respondent/applicant in the 6th respondent's account, and consequently no interference ought to have been made by the CAT in regard to the rejection of the request of the withdrawal of the voluntary retirement. In Balram Gupta, the Supreme Court had to deal with the circumstances where the applicant sought for voluntary retirement in exercise of the option under Rule 48A. Although, the structure of that provision is different from Rule 48 - which is the one applicable in the present case - the crucial consideration was the same. Rule 48A (4) like Rule 48 (2) in the present case, precludes a public servant from withdrawing his option or from resiling from his option to voluntary retire provided/unless the competent authority permits such withdrawal. The Supreme Court noticed in that case that the mere fact that acceptance is communicated cannot be decisive in the matter and much would depend on when the withdrawal is sought to be made effective. In the facts of that case, withdrawal was made within a month from the date of submission of

W.P.(C)5730/2012 Page 6 the request; the Court held that there was sufficient locus to seek withdrawal. On the merits, the Supreme Court held that pertinently in paragraph 13 that "In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways "to ease out" uncomfortable employees."

8. In the present instance, the facts clearly show that the sequence narrated by the applicant, i.e., the objection taken by the 6th respondent to his conduct in depositing `20,000/- without permission in his account, and the subsequent instance of the resignation which was later allowed to be converted into the request for voluntary retirement, do demonstrate that the main element of volition was at the stage when the request for voluntary retirement itself was made on 18.4.2007. Having regard to these circumstances, a clear intimation of withdrawal made on 24.5.2007 was within reasonable time and certainly much before the date when the voluntary retirement was to made effective. Correspondingly, the undue haste shown in the acceptance of the request of voluntary retirement and dubious manner in which this date was sought to be postponed by an order made three years later supports the CAT's conclusions that the request for withdrawal ought to have been considered in a fair and objective manner. Having regard to all these circumstances, this Court is of the opinion that no

W.P.(C)5730/2012 Page 7 interference is called for with the order of the CAT. At the same time, this Court further is of the opinion that as the CAT pertinently remarked in its order in paragraph 24 and 32, if the petitioner GNCTD is of the opinion the matter requires to be probed, proceedings in that regard may be initiated in accordance with law. Subject to the above clarifications, the writ petition is dismissed without any order as to costs.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) OCTOBER 09, 2014 /vikas/

W.P.(C)5730/2012 Page 8