Dinesh Prasad Sharma vs C.M.D.Bsnl & Ors.
2014 Latest Caselaw 5248 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                       Date of Decision: 27.10.2014

%     W.P.(C) 7858/2013 and C.M. No.9804/2014
      DINESH PRASAD SHARMA                         ..... Petitioner
                      Through: Petitioner in person.
               versus

      C.M.D. BSNL & ORS                                ..... Respondents

Through: Mr. M.M. Sudan, Advocate.

CORAM:

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

S. RAVINDRA BHAT, J. (OPEN COURT)

1. Issue notice. Mr. Sudan accepts notice.

2. We have heard the petitioner and learned counsel for the respondents on the matter finally for disposal.

3. The petitioner is aggrieved by an order of the Central Administrative Tribunal (CAT/ Tribunal) dated 19.08.2013 - and a further order dated 19.09.2013 dismissing his application being T.A. No.04/2013. The petitioner's grievance is that the CAT fell into error in holding that the effective date of his voluntary retirement was not 06.08.2009.

4. Briefly the facts are that the petitioner - an employee of the BSNL issued notice on 17.04.2009 expressing his intention to retire voluntarily from the service of his employer on 28.07.2009. Subsequently, he changed the date of his retirement - through a letter issued on 03.07.2009 - to

06.08.2009. The respondents did not react to the notice for voluntary retirement; consequently, the petitioner stopped attending to his duties from 06.08.2009. The earliest communication received by the petitioner - according to the available records is a letter of 17.08.2009, which reads as follows:

"To,

Shri Dinesh Prasad Sharma, DEP, Modi Nagar 5/664, Kashyap Colony Gular Road, Aligarh.

No: - GMT/GZB/E-7/Resignation/Voluntary Retirement/2008- 0/81 Dated 17.08.2009

Sub.:-Regarding-Voluntary retirement from BSNL Service.

With reference to circle Office letter no. UPW/7- 3/Pen/Staff-2000/V/95 dated 11.08.2009 from AGM (S-I) O/o CGMT UP(W) Circle, Meerut regarding above mentioned subject, it is intimation that there is a serious complaint against you & is being investigated and therefore VRS should not be accepted at this time.

Therefore you are requested to postpone the VRS for another three months.

This order has been issued with the approval of GMTD GZB.

Sd/-

AGM (A&P) O/o GMTD, Ghaziabad Copy

1. The AGM (S-I) O/o CGMT UP (W) Circle Meerut for information."

5. Finally, on 19.09.2009, a formal rejection letter was issued, and later communicated to the petitioner. The same reads as follows:

"To,

Shri D.P. Sharma, (D.E.T. Modi Nagar) 05/664, Kashyap Colony Gular Road, Aligarh.

No: - GMT/GZB/E-7/Resignation/Voluntary/08-09/89 Dated 19-09-2009

Sub.:-Regarding-Voluntary Retirement from BSNL Service.

You are hereby intimated that your notice of dated 17-04- 2009 for Voluntary retirement with effect from 28-07-2009 and later postponed to 06-08-2009 can not be accepted at this stage. Regarding this you are already intimated vide this office letter no. GMT/GZB/E-7/Resignation/Voluntary Retirement/ 2008-09/81 dated 17-08-2009 to postponed your VR for another three months.

I am directed to ordered you to resume your duty immediately otherwise disciplinary action will be taken accordingly as per departmental norms.

Sd/-

(D.K. SINGH) Dy GM (Admn) O/o GMTD, Ghaziabad"

6. The petitioner's request for pension and other terminal benefits was not acted upon. Eventually with effect from 31.03.2011, he was treated to have superannuated from the service. Significantly, as on the date (i.e. 31.03.2011), no charge-sheet or disciplinary proceedings had been initiated against the petitioner. Objections, if any, with respect to vigilance angle

were not treated as serious enough to warrant disciplinary proceedings. In these circumstances, the petitioner urged the respondents to release his pension on the footing that he had retired from service upon the expiry of the notice for voluntary retirement with effect from 05.08.2009. The respondents rejected this, and contended that since there was refusal of his request for voluntary retirement, the petitioner was deemed to have superannuated in normal course and, therefore, was ineligible for pension for the intervening period. The resultant application to the CAT was unsuccessful; the petitioner has, therefore, approached this Court.

7. It is contended by the writ petitioner in support of the present proceedings that the CAT fell into error in not noticing the true purport of proviso to Rule 48-A (2) of the CCS (Pension) Rules and FR 56-A that upon the immediate expiry of period of notice - given for voluntary retirement, the civil servant's relationship with the public employer ceases, and his right to terminal benefits as well as pension crystalises. The petitioner also relied upon the ruling of Supreme Court in State of U.P. & Others Vs. Laxmi Kant Shukla, (2011) 9 SCC 532.

8. Mr. Sudan, learned counsel for the respondents/ BSNL urged that the impugned order of the CAT is justified under the circumstances. It was contended that in view of Rule 48-A(2) of the CCS (Pension) Rules, no civil servant has an indefeasible right to claim voluntary retirement, and such a proposal has to be expressly accepted. It was contended that even though the proviso to Rule 48-A(2) visualizes a situation where the voluntary retirement notice becomes effective in the absence of a communication, that factual situation did not exist in the present case. Elaborating on it, it was

contended that the competent authority, i.e. Director (HR) in the Corporate Office of the BSNL had taken a decision on 06.08.2009 that in view of pending vigilance investigation, the petitioner's request for voluntary retirement could not be acceded to. This communication/ letter was put into irrevocable motion of communication and had to be delivered in the normal channel. That it was ultimately communicated by letter dated 19.09.2009 would not detract from the fact that the decision for not accepting the request for voluntary retirement was, indeed, taken by the competent authority on 06.08.2009.

9. Learned counsel submitted that in these circumstances, the judgment in Laxmi Kant Shukla (supra) has no application since the competent authority had taken a conscious view not to accept the request for voluntary retirement.

10. Rule 48-A(2) of the CCS (Pension) Rules and the proviso, therefore, reads as follows:

"(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."

11. From a textual reading of the aforesaid, it is evident that a request for voluntary retirement of a public servant, who is entitled to issue such notice

- having completed 20 years of continuous employment - requires express acceptance. Left to itself, Rule 48-A(2) would imply that a public servant only has a right to issue notice for voluntary retirement but in the absence of

acceptance, nothing further can proceed. The proviso further carves out an important exception. If, on or before the expiration of the period of notice, the rejection is not received by the public employee, he is deemed to have severed his employment and his employment with the concerned department/ organization comes to an end.

12. The narrow question that arises for our decision is whether the issuance of notice on 17.04.2009 by the petitioner - expressing his intention to retire with effect from 28.07.2009 (later modified through letter dated 03.07.2009 to have effect with effect from 06.08.2009), in fact, crystalises into a right in terms of proviso to Rule 48-A(2).

13. The CAT took note of the fact that the decision of the competent authority - in this case the Director (HR), was apparently taken not to grant the request for voluntary retirement only on the last date, i.e. 06.08.2009. There is some material on record to show that inter-departmental communication took place within the BSNL - forwarding the letter/ decision on 11.08.2009. But the fact remains that the ultimate unequivocal rejection of the petitioner's request took place on 19.09.2009. The BSNL's stand here was that the decision not to accept the request for voluntary retirement having been taken within the time, the consequent delay has to be disregarded, since the communication of not accepting that request was to be made through proper channel. It was, however, elaborated that since the letter had to be issued through proper channel, once the basic decision was put into motion, i.e. through post, etc, there could not be any controversy that the petitioner's right had not crystalised in terms of proviso to Rule 48- A(2).

14. This Court is of the opinion that the BSNL's contention on this aspect cannot be accepted. There can be situations where decisions are taken at the eleventh hour. In such event, what is essential and perhaps crucial for the Court to examine is whether such decision is put in through an irrevocable/ irretrievable channel so as to reach the ultimate recipient - in this case, the petitioner/ employee. In the present case, no such thing has resulted. The most proximate recipient was someone within the organization, i.e. BSNL itself. The earliest direct communication to the petitioner in this regard, on record, is of 17.08.2009. The letter in that instance is, in fact, unequivocal in the sense that the petitioner was asked to extend the period of notice by further three months. This itself implied that the final decision (at least as far as the petitioner was concerned) had not been taken. In this Court's opinion, this letter is decisive to reject the BSNL's contention. Had the real intention of BSNL been to reject the petitioner's notice - even by the extended logic that it is urging this Court to accept, it should have put the communication (most proximate to the petitioner to be received by him) into motion irretrievably/ irrevocably from itself on 06.08.2009. The danger of accepting the BSNL's argument in such matters, in our view, is that it would cast a doubt on the decision making process; a remotely connected ultimate decision maker's determination can arguably - because of the layered structure of official communication - entirely defeat the underlying objective and effect of proviso to Rule 48-A(2).

15. There is another reason why this Court is unpersuaded by the BSNL's contention and CAT's findings.

16. As a matter of fact, no departmental proceedings were drawn up, or

initiated against the petitioner for the period intervening 05.08.2009 and 31.03.2011. This meant that the basic rationale for denying the request for voluntary retirement was never acted upon, and he was allowed to superannuate in the normal course from the date he attained the age of retirement/ superannuation. Such being the case, his right to, at least, pension and terminal benefits crystalised from the date the notice for voluntary retirement expired, i.e. 06.08.2009. This Court is, therefore, of the opinion that the CAT fell into error in holding that the petitioner could not claim pension and other terminal benefits from that date.

17. For the foregoing reasons, the impugned order of the CAT is set aside. A direction is issued to the respondents to calculate pension and terminal benefits of the petitioner with effect from 06.08.2009 and disburse them within ten weeks from today. The BSNL is also directed to pay interest @ 8% per annum on the said terminal benefits and all other monetary benefits that the petitioner is entitled to, from 06.08.2009 till the date of payment, and interest @ 8% per annum in respect of delayed pension calculable from the time month by month such amounts became due.

S. RAVINDRA BHAT, J

VIPIN SANGHI, J.

OCTOBER 27, 2014 B.S. Rohella