JUDGMENT
M. Karpaga Vinayagam, C.J.
1. Dinesh Prasad Chaturvedi, respondent No. 2, working as Chief Office Superintendent in East Central Railways, Dhanbad, applied for voluntary retirement to the Senior Divisional Personnel Officer, East Central Railways, Dhanbad, on 26.2.2003. It was accepted by the order of the Senior Divisional Personnel Officer on 31.3.2003 with effect from 25.5.2003. Before expiry of the said period, the Railway authority issued a letter dated 22.4.2003,keeping the order of acceptance in abeyance as the respondent No. 2 had been proceeded with minor penalty charge sheet dated 8.4.2003. Thereafter the order of acceptance was cancelled by the order dated 4.8.2003. Challenging the same, the respondent No. 2 filed O.A. on 5.2.2004 before the Tribunal.
The Tribunal passed order on 22.8.006 declaring the respondent-applicant to have voluntarily retired from service with effect from 25.5.2003. Aggrieved by that, Union of India through the Senior Divisional Personal Officer, East Central Railways, Dhanbad, has filed the writ petition before this Court, seeking quashing of the order of the Tribunal giving declaration in favour of the respondent-applicant.
2. The short facts are as follows:
(A) Dinesh Prasad Chaturvedi, respondent No. 2, was working as Chief Office Superintendent, East Central Railways, Dhanbad. He applied for his voluntary retirement through application dated 26.2.2003.
(B) His request for voluntary retirement was accepted by the Railway authority by the letter dated 31.3.2003 intimating the respondent-applicant that his voluntary retirement would take effect from 25.5.2003.
(C) Even before the expiry of three month period, the respondent-applicant was issued charge sheet of minor penalty charges and a letter dated 22.4.2003 was sent to him, intimating that the order of acceptance was kept in abeyance pending finalization of minor penalty charge sheet and thereafter the Railway authority intimated him to join duty. However, he did not join duty. Thereupon his application for voluntary retirement was cancelled on 4.8.2003.
(D) As he did not join duty, major penalty charge sheet dated 15.1.2004 for his unauthorised absence was issued against him. In the meantime, respondent No. 2, filed an application before the Tribunal. Ultimately, Tribunal allowed the application filed by the respondent-applicant, declaring him to have voluntarily retired from service with effect from 25.5.2003 and consequently quashed all the penalty charge sheets. Aggrieved by this, this writ petition has been filed by Union of India through the Senior Divisional Personnel Officer, East Central Railways, Dhanbad.
3. Mr. Mahesh Tiwary, learned Counsel appearing for the petitioner, submitted that the declaration as sought for by respondent-applicant is wrong for the reason that even though his application for voluntary retirement was accepted by the order dated 31.3.2003, it was directed to be kept in abeyance by letter dated 22.4.2003, i.e., even prior to 25.5.2003, the date on which the respondent-applicant was to retire, on the ground that the disciplinary penalty proceeding was pending against him and order of acceptance of the application dated 26.2.2003 was cancelled, vide letter dated 4.8.2003 and therefore, the order of the Tribunal giving declaration as sought for by the respondent-applicant is not sustainable. He cited three decisions , B.J. Shelat v. State of Gujarat and Ors. , Power Finance Corporation Ltd. v. Pramod Kumar Bhatia and , Shambhu Mirari Sinha v. Project & Development India Ltd. and Anr., in support of his argument.
4. The learned Counsel appearing for the petitioner further contended that when the order accepting the application for voluntary retirement was kept in abeyance within the period of three month notice, i.e. prior to the date on which the order of voluntary retirement comes into effect, the same is in consonance with Rule 66 of the Railway Service (Pension) Rules and as such the power given under the said Rule 66 has been properly exercised by the authority and that the respondent-applicant cannot, therefore, be allowed to voluntarily retire on 25.5.2003 as held by the Tribunal.
5. On the strength of the aforesaid three decisions, it is contended by the learned Counsel appearing for the petitioner-Union of India that the authority has got the power to withdraw the permission when the departmental proceeding Is pending or contemplated and as such, the order passed by the authority withdrawing the permission is in consonance with Rule 66.
6. Justifying the conclusion arrived at by the Tribunal, the learned Counsel appearing for respondent-applicant would contend with equal vehemence that as per the decision , Tek Chand v. Dile Ram, the case of the applicant falls within the second category of the cases mentioned by the Supreme Court and as per the said judgment, the connected rule, which has been framed by the authority, would be relevant to decide the question and since the requirement prescribed by Rule 66 has been complied with, the order withholding the permission cannot be held to be valid.
7. We have carefully considered the submissions made by the learned Counsel for the petitioner and the learned Counsel for the respondent-applicant.
8. Among the three decisions, the Supreme Court in the decision (supra) would give a relevant and clear verdict that it shall be open to the appointing authority to withhold permission to give retirement to a Government servant, who is under suspension or against whom departmental proceedings are pending or contemplated. On going through the said decision, it is clear that Rule 161 of the Bombay Civil Services Rules has been quoted in paragraph 7, which reads as follows:
7. Rule 161 of the Bombay Civil Services Rules provides for the retirement of Government servants before attaining the age of superannuation. Rule 161(l)(aa) provides:
Notwithstanding anything contained in Clause (a):
(1) An appointing authority shall, if he is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant to whom Clause (a) applies by giving him notices of not less than three months in writing or three months’ pay and allowance in lieu of such notice:
xxx xxx xxx Sub-rule (2)(ii) is as follows: ...
Provided that it shall be open to the appointing authority to withhold permission to retire to a Government servant who is under suspension or against whom departmental proceedings are pending or contemplated….
From the aforesaid proviso, it is clear that the appointing authority can withhold permission to a Government servant who is under suspension or against whom departmental proceedings are pending or contemplated.
9. According to the learned Counsel for the petitioner, Rule 161 of the Bombay Civil Services Rules is analogous to Rule 66 of the Railway Service (Pension) Rules.
10. This contention, in our view, does not merit acceptance for the simple reason that the Rule 66 of the Railway Service (Pension) Rules is not analogous to the Rule 161 of the Bombay Civil Services Rules. Let us reproduce the relevant portion of Rule 66 of the Railway Service (Pension) Rules.
66. Retirement on completion of 30 years qualifying service.–(1) At any time after a railway servant has completed thirty years qualifying service–
(a) he may retire from service; or
(b) …
Provided that–
(i) a railway servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and
(ii) …
Provided further that where the railway servant giving notice under Clause (i) of the first proviso is under suspension, it shall be open to the appointing authority to withhold permission to such railway servant to retire under this rule:
…
The proviso provided that where the railway servant giving notice under Clause (1) is under suspension, it shall be open to the appointing authority to withhold permission to such railway servant to retire under this rule.
11. So the aforesaid Rule 66 gives out two contingencies–(i) the railway servant, after completion of 30 years of qualifying service, may retire from service after giving three month notice before the date on which he wishes to retire and (ii) during three month period, permission can be granted but before expiry of three months, such permission can be withheld by the appointing authority, when the railway servant is under suspension.
12. So the main stipulation, which empowers the appointing authority to withhold permission, is the case where the railway servant is under suspension on a charge pending or a charge contemplated. As indicated above, Rule 161 of the Bombay Civil Services Rules gives power to the authority to withhold permission in cases where the Government servant is either under suspension or charges have been contemplated or pending. But in this case, Rule 66 of the Railway Service (Pension) Rules provides that withholding of permission can be made only when the railway servant is under suspension.
13. Admittedly the letter dated 31.3.2003 accepting voluntary retirement of the respondent-applicant was kept in abeyance by the letter dated 22.4.2003, which does not mention about his suspension. On the other hand, it mentions about the issuance of minor penalty charge sheet. Undisputedly the order of acceptance has been cancelled only on 4.8.2003, i.e. much subsequent to 25.5.2003, the date on which voluntary retirement was to come into effect. From these, two things are clear– (a) order of acceptance of voluntary retirement of respondent-applicant has been kept in abeyance even before three month period, when he was not under suspension and (b) order of acceptance of voluntary retirement of the respondent-applicant has been admittedly cancelled not during three month period but only on 4.8.2003, i.e. much subsequent to the expiry of three month period.
14. So, in our view, the Tribunal has correctly concluded that the respondent-applicant, who has already put in more than 30 years of service, has to be governed by Rule 66 of the Railway Servants (Pension) Rules and Rule 66 thereof can be invoked only when he is under suspension. Admittedly the respondent-applicant was not under suspension. Therefore, the order withholding permission during three months period cannot be said to be valid in law.
15. In view of the above reasons, the order of the Tribunal is perfectly justified. This petition is accordingly dismissed. However, there is no order as to costs.
D.G.R. Patnaik, J.
16. I agree.