Kukkikatte Krishnamoorty vs Union Of India & Ors
2016 Latest Caselaw 4719 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Judgment Dated: 21st July, 2016
+      W.P.(C) 1268/2016

       KUKKIKATTE KRISHNAMOORTY                      ..... Petitioner
                   Through : Mr. Abhijit Bhattacharyya with
                             Mr. Sumant De & Mr. Vivek Agarwal,
                             Advocates
                           versus

       UNION OF INDIA & ORS                             ..... Respondents

                     Through :          Mr.Vikas Mahajan, CGSC with Mr.
                                        S.S. Rai and Mr. Amit Mehra,
                                        Advocates
CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MR. JUSTICE I.S. MEHTA

G.S.SISTANI, J (ORAL)

1. Challenge in this writ petition is to the order dated 25.11.2011 passed by the Central Administrative Tribunal (hereinafter referred to in short as „the Tribunal‟) in O.A. 1228/2010 and the order dated 16.10.2015 passed in review application being R.A. 51/2014 filed by the petitioner herein by which the OA as also the review application stand dismissed.

2. The necessary facts to be noticed for disposal of this writ petition are that in the year 1981, the petitioner was recruited to the Central Services and was assigned to the Indian Ordnance Factory Service. In the year 1994, he was sent on deputation to the Ministry of Labour. On 24.07.2001, the petitioner was granted ex-post facto approval allowing him to join the International Labour Organisation (ILO) w.e.f. 14.08.2000 under the Consolidated Instructions on Foreign Assignment

of India Experts, 1991 (briefly 'the Policy') for a maximum period of five years as per the Policy. The respondent no.1, as claimed by the petitioner herein, in contravention of the said rule, granted only a year‟s approval to the petitioner. On 06.11.2001, as a matter of abundant caution, the petitioner sought an extension in his assignment with the ILO, which was accepted and the petitioner was granted extension till 31.12.2003. The petitioner was then informed on 10.12.2003 that his period of deputation is coming to an end on 31.12.2003 and he was required to join back to his parent cadre at the Ordinance Factory, Tiruchirapally. Various communications were exchanged between the petitioner and the respondent. The petitioner repeatedly requested the respondents to extend his period of deputation until the expiry of 5 years, i.e August, 2005. The respondents, in turn, rejected all the requests and mandated that the petitioner should report to his parent cadre. The petitioner failed to report to his parent cadre. By means of a letter dated 21.08.2005, the petitioner sought voluntary retirement from the respondents. The petitioner requested that he may be granted retirement from 30.11.2005. The respondents claim that the said request was rejected by the letter dated 29.11.2005 and the respondent was further informed that disciplinary proceedings were sought to be initiated against the petitioner.

3. Thereafter, on 07.12.2005, the respondent issued a Memorandum of Disciplinary Action against the petitioner which, according to the petitioner, was patently illegal as the request of the petitioner seeking voluntary retirement under Rule 48-A (2) of the CCS (Pension) Rules, 1972, was pending. It is the case of the petitioner that instead of responding to the said request of the petitioner, on 15.12.2006 the respondent under sub-Rule (2) of Rule 14 of the CCS(CCA) Rules, 1965

appointed an Inquiry Committee. Based on the recommendations of the Inquiry Committee, the respondent no. 4 vide its order dated 26.06.2009 removed the petitioner from service which, according to the petitioner, was totally erroneous without any application of legal principles, non- application of Rule 15 of the CCS (CCA) Rules, 1965.

4. Aggrieved by the order of removal, the petitioner filed an O.A.

1228/2010 before the Tribunal. By an order dated 25.11.2011, the OA was dismissed. Resultantly, the petitioner filed a Writ Petition No.6761/2013 which was dismissed as withdrawn on 28.10.2013 with liberty to the petitioner to approach the Tribunal as per law to seek review. A review application was filed which was also dismissed on 16.10.2015.

5. We may notice, at this stage, that in the OA, a two-fold prayer was made, one to set aside the order of the Disciplinary Authority and vitiation of the inquiry proceedings and secondly, a prayer that the petitioner stood retired from service w.e.f. 30.11.2005. We may also notice that when the matter was heard before the Tribunal, it was noticed that no arguments were addressed as regards the order removing the petitioner from service. In fact, what was raised before the Tribunal was that the petitioner stood voluntarily retired on 30.11.2005 due to the operation of proviso to sub-rule (2) of Rule 48-A of the CCS (Pension) Rules, 1972.

6. Learned counsel for the petitioner submits that the Tribunal has erred in dismissing the OA filed by the petitioner. It is contended that the Tribunal has lost sight of the proviso to Rule 48-A (2) and has failed to take into account that the alleged letter dated 29.11.2005 which is the alleged letter of rejection was introduced for the first time by the respondent before the Tribunal. The petitioner claims that this letter was

issued a day prior to the expiry of notice period of request for voluntary retirement which shows the mala fide conduct of the respondent. It is also contended that the Tribunal has erroneously rejected the submission of the petitioner by simply considering the date of dispatch of the alleged letter dated 29.11.2005. Attention of the Court is drawn to documents placed on record to show that the letter dated 29.11.2005 was dispatched on 02.12.2005 and hence was beyond the stipulated period under Section 48-A. In this regard, reliance is placed on the endorsement on the top of the page of the Peon Book which read as "Sl No.50 Journal No.410 dated 02.12.2005". It is thus, the case of the petitioner that this letter dated 29.11.2005 was dispatched to the petitioner by the respondent after the period of notice of voluntary retirement had expired. Thus, the petitioner stood voluntarily retired in terms of Rule 48-A sub-Rule (2) of the CCS(Pension) Rules, 1972. Reliance is also placed on a Speed Post sheet showing that the letter was posted to the petitioner on 01.12.2005. Counsel further submits that the findings of the Tribunal are perverse and not based on the record. Additionally, it is submitted that this Court had directed the respondent to produce the original Peon Book, but very conveniently a statement has been made that the same is not traceable and it may have been weeded out due to passage of time.

7. Per contra, Mr.Mahajan, learned counsel for the respondents, submits that the present writ petition is misconceived. The petitioner had made an application seeking voluntary retirement only because he has overstayed and he was aware that disciplinary action would be initiated against him and with a view to avoid the disciplinary action, an application for voluntary retirement was made. It is submitted that the respondent had taken note of the application and prior to the notice period having expired, appropriate orders were passed which have been

noticed by the Tribunal in the order which would show that prior to the notice period, the application of the petitioner seeking voluntary retirement stood rejected. He submits that the date of dispatch of the letter of rejection dated 29.11.2005 is crystal clear. Learned counsel also contends that the dates of dispatch were not contested before the Tribunal and this argument that the letter was dispatched at a later date is merely an afterthought. He further clarifies that not one letter but two letters were dispatched to the petitioner, first the letter of rejection dated 29.11.2005 and then a second letter was issued by the Director General of Ordnance Factories dated 01.12.2005. Additionally, it is submitted that the relevant record was produced before the Tribunal which is evident upon reading of the order of the Tribunal.

8. We have heard the learned counsel for the parties and also perused the pleadings of the Tribunal as also the Annexures filed in the Court. The basic facts of the present case have been noticed by us in the aforegoing paragraphs. The contention of the petitioner is that he applied for voluntary retirement on 21.08.2005 and since his request was not rejected within the notice period, his request stood automatically accepted in terms of the proviso to Rule 48-A (2). He has relied upon the Peon Book showing the date of dispatch of the letter. He further relies upon a Speed Post Booking Journal to show that the same was dispatched after the expiry of the notice period. On the other hand, the respondents contend that the request for voluntary retirement was made to evade the disciplinary proceedings as admittedly, he was violating orders since 2003. The respondent, by placing reliance on the documents produced before the Tribunal, contends that the request for voluntary retirement was rejected and duly communicated to the petitioner within the notice period.

9. Prior to venturing further, we deem it appropriate to reproduce Rule 48-

A (2). It 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."

10. A plain reading of Rule 48-A-(2) reveals that a public servant may merely serve upon the department his notice for voluntary retirement. Such notice requires express acceptance for severance of the ties between the employee and the employer. One exception has been carved out to the mandate of the express acceptance by the proviso, i.e. in the circumstance that the appointing authority fails to pass any decision whatsoever upon the notice, in such a situation the notice is deemed to be accepted and the ties are severed. Further, the relevant date for ascertaining the rejection of the retirement notice is the date upon which the department sends the communication.

11. In the case of Lt. Governor & Anr. v. Sh. Dharam Vir Singh, W.P.(C) 146/2008, it was held as under:

"22... We are of the view that this approach of the Tribunal is not proper, legal or justified. As we have read the principle laid down in the judgments of the Supreme Court, no doubt, it is incumbent upon the Government to communicate to the Government servant its decision to withhold the voluntary retirement. It is the date of sending the communication which is important and it is not necessary that the communication should reach the Government servant within three months. The Competent Authority/Appointing Authority, who had to take decision on the request of the respondent herein was the Lt. Governor. He rejected the request on 2.6.2006. After the said rejection on file, 'process of communication' thereof started

on 7.6.2006, i.e., the date on which the Joint Secretary (Services) issued the order in the name of the Lt. Governor..."

(Emphasis Supplied)

12. In view of the respective stands of the parties, the only issue which arises for consideration is as to whether the request of voluntary retirement was rejected and put into the „process of communication‟ within the notice period or not. In case the request for voluntary retirement was rejected and communicated to the petitioner, the petitioner cannot be said to have been deemed to be retired as he cannot claim benefit of the Proviso to the sub-rule (2) to Rule 48-A of CCS (Pension) Rules. However, in case the request for voluntary retirement rejection was not communicated, request of the petitioner for voluntary retirement would deemed to be accepted and the respondent would be liable to pay the retirement dues to the petitioner herein.

13. There is no dispute that the petitioner had sent a letter dated 21.08.2005 seeking voluntary retirement w.e.f. 30.11.2005. The controversy resolves around the date of dispatch of the rejection letter dated 29.11.2005. The rejection letter reads as under:

"I am directed to refer to your application dated 21.8.2005 for voluntary retirement and to state that the Competent Authority has considered the said application and has not repeat not accepted the same. It has also been decided to initiate disciplinary action against you for non-compliance with MOD/OFB direction.

In view of the above, you are hereby directed to report to Ordnance Factory Khamaria immediately."

14. Another communication was issued to the petitioner by the Director General, Ordnance Factories dated 01.12.2005. The communication was primarily addressed to the Director, ILO Area Officer informing him

about the rejection of the application of the petitioner herein. The counsel for the respondents has explained that a copy of the communication was also sent to the petitioner herein.

15. The Tribunal had perused the file notings of the respondents and had come to the following conclusion:

"The matter then came up before AS (DP) and Secretary (DP), when, it appears, proposal of JS (OF) was accepted. There is no manner of doubt nor is there any dispute as well that the order rejecting the voluntary retirement of the applicant came to be definitely passed on 29.11.2005, and from the additional affidavit dated 14.07.2005 filed pursuant to orders of the Tribunal as mentioned above, as also from the dispatch resister, it is absolutely clear that the order refusing voluntary retirement request was passed not only within the stipulated time, but it was communicated to the applicant as well. Learned counsel representing the applicant, on earlier occasion had, however, urged that there is manipulation of records, and it is for that reason that we have called for the records. We do not find any manipulation in the records whatsoever. Counsel for the applicant would also contend that assuming that the respondents had communicated refusal of the voluntary retirement request of the applicant and had sent it as well, but the applicant had not received it. In our view, when a letter is sent to an addressee at his known address, there is presumption that it has been received, which may be a rebuttable presumption, but it is the applicant who has to rebut the same. That apart, non-receipt by the applicant of the communication sent to him refusing his request for voluntary retirement may not be fatal. This Tribunal in OA No.1515/2006 in the matter of S. R. Goyal v Government of NCT of Delhi & others, decided on 07.11.2007, when even though rejection of voluntary retirement was sent to the place of posting of the applicant and the authorities thereat communicated it to him later in point of time, held that once the communication to the applicant was beyond the stipulated period, it would be a case of deemed acceptance of voluntary retirement. The said judgment has since been upset by a Division Bench of the Hon'ble High Court of Delhi in two connected writ petitions bearing WP(C) No.146/2008 and

158/2008, vide order dated 30.05.2008. It has been held that it is the date of sending the communication which is important and it is not necessary that the communication should reach the Government servant within three months."

(Emphasis Supplied)

16. We note that an affidavit was filed by the respondent in July, 2011 pursuant to an order of the Tribunal to show the date of dispatch of the rejection letter dated 29.11.2005. The respondents had taken a stand that the application for voluntary retirement was received by them on 02.09.2005. In view of the same, by means of an order dated 17.02.2016, we had directed the petitioner to show the date upon which the application was received in the office of the respondents. The petitioner has produced on record a fax transmission report to show that the application was sent on 30.08.2005. Therefore, the only question which remains is as to whether the rejection letter was dispatched prior to the expiry of the notice period, i.e. 30.11.2005.

17. We have also examined the copy of the Peon Book which has been placed on record. The second item in this Peon Book pertains to the petitioner herein and against the date of 29.11.2005, it shows the Speed Post Number and the date 29.11.2005. No doubt, on the top of this Peon Book an endorsement "Sl No.50 Journal No.410 dated 02.12.2005" has been made. Based on this endorsement, learned counsel for the petitioner has laboured hard to convince us that this would show that the letter was posted on 02.12.2005. We are unable to accept this submission of learned counsel for the petitioner as this endorsement made on the top of the page with respect to Serial No.50 of Journal No. 410 which, later on, we were told is to be connected to another dispatch sheet which shows that another letter at Serial No.50 of Journal No.410

addressed to the petitioner was dispatched on 02.12.2005. This, by itself, would not create a doubt as the booking journal of Speed Post is also available against the rejection letter dated 29.11.2005 dispatched to the petitioner. Additionally, we have found another Speed Post sheet on record which shows that a letter was posted to the petitioner on 01.12.2005. Learned counsel for the respondent has explained that there was not one letter but two letters and this sheet shows the dispatch of the communication dated 01.12.2005. Both letters are on record and were annexed to the affidavit of the respondents filed in July, 2011, which would explain as to why there is an entry of 01.12.2005 for Speed Post. The Tribunal has also in its order observed in absolutely clear terms which we have extracted hereinabove stating that the original record was produced and was examined by them. In case, the record was produced and examined, the petitioner could well have pointed out before the Tribunal what is sought to be urged before us today. We are left with no option, but to reject this petition in view of the fact that the rejection letter was dispatched to the petitioner by Speed Post on 29.11.2005. Therefore, there are no grounds made to interfere.

18. The writ petition is dismissed. No order as to costs.

G.S.SISTANI, J

I.S. MEHTA, J JULY 21, 2016 pst