Madras High Court
The State Of Tamil Nadu vs V.Arasudevan on 21 December, 2023
Author: R. Mahadevan
Bench: R.Mahadevan, Mohammed Shaffiq
W.A.No. 990 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2023
CORAM :
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal No.990 of 2023
and
CMP.No.9903 of 2023
1. The State of Tamil Nadu,
Rep. by the Secretary,
Commercial Taxes and Registration Department
Secretariat, Fort St. George,
Chennai - 600 009.
2. The Principal Commissioner,
Commercial Taxes Department,
Chepauk, Chennai - 600 005.
3. The Joint Commissioner (Administration)
Office of the Principal Secretary / Commissioner of
Commercial Taxes, Chepuak, Chennai - 600 005.
4. The Deputy Commissioner,
Commercial Taxes, Zone - X,
Chennai South and Central Divisions,
Chennai - 600 035. .. Appellants
Versus
V.Arasudevan
Assistant Commissioner (ST),
Nolambur Assessment Circle,
Chennai (South) Division,
Chennai - 600 035.
https://www.mhc.tn.gov.in/judis .. Respondent
1/9
W.A.No. 990 of 2023
Writ Appeal filed under Clause 15 of Letters Patent praying to set aside
the order dated 08.11.2022 made in W.P. No.18081 of 2022.
For Appellant : Mr.Haja Nazirudeen,
Additional Advocate General assisted by
Mr.M.Venkateswaran,
Special Government Pleader
For Respondent : Mr.S.Viswanathan
JUDGMENT
(Judgment of the Court was made by R. MAHADEVAN, J.)
This Writ Appeal has been filed challenging the order dated 08.11.2022
passed by the learned Judge in W.P.No.18081 of 2022.
2. According to the appellants, the respondent had joined the
Government service on 08.12.1988 and after completion of 33 years, he
submitted an application on 20.01.2022 seeking voluntary retirement, stating
that he had unblemished track of record and only due to his ill-health, he made
such application. After examining the same, the second appellant rejected the
application seeking voluntary retirement, by order dated 29.04.2022, against
which, the respondent preferred an appeal before the third appellant and the
said appeal was also dismissed, by order dated 29.06.2022. The request of the
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respondent seeking voluntary retirement was not considered by the appellant
authorities, on the ground that during the interregnum period i.e., from the date
of application seeking voluntary retirement to the date of his retirement on
30.04.2022, the respondent was engaged in assessment work in the post of
Assistant Commissioner (CT), Nolambur Assessment Circle, and in order to
safeguard the revenue, without any loss to State Exchequer, the department
had to conduct audit on the assessment files, where the respondent has passed
the assessment orders. Challenging the orders so passed by the appellant
authorities, the respondent preferred WP. No. 18081 of 2022, which was
allowed by the learned Judge, by setting aside the orders impugned therein and
by directing the appellants to approve the respondent's request for voluntary
retirement, allow him to voluntarily retire from service, forthwith, and pay all
the retirement benefits, in accordance with law, within a period of three
months. Aggrieved by the said order of the learned Judge, the appellants have
preferred this writ appeal.
3. The learned Additional Advocate General appearing for the
appellants submitted that the respondent was working as Assessing Officer in
Nolambur Assessment Circle, and his work is subject to the departmental audit
and by Accountant General audit, which are statutory in nature. Based on the
status of Accountant General Audit paras and internal audit paras, wherein
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huge revenue was involved, the respondent can be permitted to retire from
service and without arriving on a conclusion regarding his retirement, the
respondent cannot invoke the writ jurisdiction. That apart, the representation
sent by the respondent was received only on 25.01.2022 and the notice period
of three months ends only on 30.04.2022 and the impugned order has been
passed against the respondent on 29.04.2022 itself. Hence, there is nothing
perverse or violation of Rules in passing the orders impugned in the writ
petitions. Continuing further, the learned Additional Advocate General
submitted that the first appellant is the competent authority to decide the
voluntary retirement of the respondent. But the respondent sent his application
dated 20.01.2022 seeking voluntary retirement to the second appellant, who
inturn forwarded the same to the first appellant. However, before the date
opted by the respondent for voluntary retirement i.e., 30.04.2022, appropriate
communication has been sent to him on 29.04.2022 itself. Hence, there is no
delay in issuing rejection orders on the part of the appellants. It is also
submitted that his request was not rejected in toto and he was directed to
renew the same after the audit defects are settled. However, the learned Judge
erred in setting aside the same and thereby allowing the writ petition in favour
of the respondent, by the order impugned herein. It is further submitted that
before knowing the fate of audit paras raised by the audit officers, the order of
the learned Judge cannot be implemented by the appellant authorities.
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However, the respondent has issued a contempt notice in a hasty manner.
Therefore, the learned Additional Advocate General prayed for allowing this
appeal by setting aside the order of the learned Judge.
4. On the other hand, the learned counsel for the respondent submitted
that as per Rule 56(3)(f) of the Tamil Nadu Fundamental Rules, the respondent
has to be relieved from service on completion of three months period of notice,
but he has not received any orders from the appointing authority either
accepting or rejecting his application for voluntary retirement, within the
aforesaid period. That apart, neither disciplinary proceedings nor enquiry or
investigation is pending against the respondent in Vigilance and Anti
Corruption department. However, the appellants are harassing him from pillar
to post. Taking note of all these factors, the learned Judge has rightly quashed
the orders passed by the appellant authorities and directed them to accept the
application seeking voluntary retirement, permit the respondent to retire from
service and pay all the retirement benefits to him, by the order impugned
herein, which does not warrant any interference by this court.
5. Heard both sides and perused the materials available on record.
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6. There is no dispute with regard to the application dated 20.01.2022
made by the respondent seeking voluntary retirement, which was received by
the appellant authorities on 25.01.2022 as evident from the counter affidavit
filed by the authorities in the writ petition.
7. Concededly, the respondent has satisfied all the conditions stipulated
in Rule 56(3)(e) of the Tamil Nadu Fundamental Rules, such as, he has
completed more than 25 years of service; and at the time of making the
application for voluntary retirement, he has not faced any disciplinary
proceedings and not faced any prosecution before any court of law with regard
to his employment; no adverse report from the Director of Vigilance and Anti-
corruption was received nor any enquiry is pending against him; and no
contractual obligation exists against him; no dues to be recovered from him.
That apart, it is to be noted that Rule 56(3)(f) of the Tamil Nadu Fundamental
Rules, which has been extracted by the learned Judge in the order impugned
herein, explicitly states that the appointing authority shall issue orders before
the expiry of the notice, either accepting the voluntary retirement or not.
Otherwise, the Government Servant shall be deemed to have been retired
voluntarily from serivce on the expiry of the notice period. In this case, no
reply was served on the respondent, by the appellant authorities either
accepting or rejecting his application seeking voluntary retirement, within the
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notice period and hence, the application submitted by the respondent seeking
voluntary retirement, deemed to have been approved, as rightly pointed out by
the learned Judge. Furthermore, no enquiry / disciplinary proceedings have
been initiated against the respondent, in respect of the alleged internal audit
paras or AG defects, till date. Therefore, the learned Judge has correctly set
aside the orders passed by the appellant authorities and directed them to accept
the application, permit the respondent to retire from service voluntarily and
pay the retirement benefits to him, by the order impugned in this appeal, which
need not be interfered with, in the hands of this court.
8. In view of the contention made on the side of the appellants that the
appointing authority is the first appellant, who has to consider the application
of the respondent seeking voluntary retirement, the respondent is directed to
send a copy of the application dated 20.01.2022, along with a copy of this
order, to the appointing authority viz., the Secretary / Commissioner of
Commercial Taxes and Registration Department, Fort St. George, Chennai, in
terms of Rule 56(3)(f) of the Tamil Nadu Fundamental Rules, within a period
of two weeks from the date of receipt of a copy of this order. On receipt of the
same, the said authority is directed to consider the same and pass appropriate
orders, on merits and in accordance with law, within a period of three weeks
thereafter.
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9. With the aforesaid directions, this writ appeal is disposed of.
No costs. Consequently, the connected Miscellaneous petition is closed.
[R.M.D., J.] [M.S.Q., J.]
21.12.2023
Index : Yes / No
Internet : Yes / No
av
To
1.The Secretary,
Commercial Taxes and Registration Department
Secretariat, Fort St. George,
Chennai - 600 009.
2. The Principal Commissioner,
Commercial Taxes Department,
Chepauk, Chennai - 600 005.
3. The Joint Commissioner (Administration)
Office of the Principal Secretary / Commissioner of
Commercial Taxes, Chepuak, Chennai - 600 005.
4. The Deputy Commissioner,
Commercial Taxes, Zone - X,
Chennai South and Central Divisions,
Chennai - 600 035.
https://www.mhc.tn.gov.in/judis
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
av
and
21.12.2023
https://www.mhc.tn.gov.in/judis
