JUDGMENT
V. Radhakrishnan, Member (A)
1. The applicant is working as Assistant Commissioner of Income Tax with the respondents. He had applied for voluntary retirement under
Rule FR 56(K) on 17.6.97 and requested for relief from 3.10.97. Later he gave another application curtailing the notice period to three months and requested for relieving him on 16.9.97. The applicant’s contention is that he relinquished his charge on 16.9.97 (A.N.) and he also formally relieved on 23.9.97. However, he received a letter from the Additional CIT dated 1.10.97 conveying the letter dated 30.9.97 from Govt. of India stating that the competent authority cannot accept the applicant’s notice of retirement as disciplinary proceedings for major penalty were contemplated against the applicant. The applicant challenges the action of the respondents in not accepting his notice for voluntary retirement under Rule 56(K) of F.R. and claims the following reliefs:
"(1) That the Hon'ble Tribunal be pleased to admit this application; (2) That this Hon'ble Tribunal further be pleased to hold-declare that the action of the respondent rejecting the application of the applicant for voluntary retirement Under Rule 56(K) is illegal and unjust. (3) That the Hon'ble Tribunal further be pleased to quash and set aside the decision of the respondents and to direct the respondents to treat the applicant as retired. (4) That the Hon'ble Tribunal be pleased to direct the respondents to make payment to the applicant of all the retirement benefits, payment of G.P.F. etc, together with interest at the appropriate rate for the period of delay. (5) That the Hon'ble Tribunal further be pleased to grant such other relief as may be found due and appropriate in the circumstances of the case."
2. The respondents have filed a reply. They have admitted the fact that the applicant had given notice for voluntary retirement on 17.6.97 with a request to relieve him from 3.10.97. However, later vide his application dated 4.9.97 he decided to be relieved from 16.9.97 i.e. immediately after completion of three months period. The respondents have taken the contention that once the applicant asks for relieving him from 3.10.97 he cannot pre-pone the date to 16.9.97. They have stated that the Govt. after considering the request of the applicant turned down his request vide letter dated 30.9.97. It was done before the date of expiry of notice i.e. 3.10.97. The respondents have stated that as per Vigilance Inspection of the charge of the applicant carried out a Memorandum was issued to him on 30.5.1997-1.6.1995 for the irregularities and lapses committed by him and disciplinary action against the applicant was contemplated and fearing of such action, the applicant had given notice of voluntary retirement which was not accepted. As the request of voluntary retirement had been rejected the question of payment of retirement benefits to the applicant did not arise as prayed for by him. Hence, they have prayed for rejection of the application.
3. The applicant has filed rejoinder in which he stated that he gave the notice of voluntary retirement in view of his bad health and as per rules he was not supposed to give any reasons and the question of submission of medical certificates as stated by the respondents did not arise. He also states that there is nothing in the Rule 56 (K) of FR which revising his notice period. He also denied that he has noticed for voluntary retirement as he wanted to escape from the disciplinary action. He states that two years earlier he was asked an explanation and he had submitted explanation and after that he was posted to more important investigation charge and also he was given senior scale promotion vide order dated 26.11.96. He also states that the respondents have not denied the fact that he was formally relieved on 23.9.97. He states that once the notice period expired he deemed to have been retired and no question of refusing the prayer for voluntary retirement by the
respondents.
4. We have heard both the learned advocates and gone through the documents on record. In order to appreciate the case the Rule FR 56 (K) is reproduced below:
(K) (1) Any Government servant may by giving notice of not less than three months in writing to the appropriate authority retire from service after he has attained the age of fifty years if he is in Group ‘A’ or Group ‘B’ service or post (and had entered Government Service before attaining the age of thirty-five years) and in all other Cases after he has attained the age of fifty-five years :
Provided that :
(a) nothing in this clause shall apply to a Govt. servant referred to in Clause (e) who entered Government service on or before 23rd July 1966; (b) nothing in the clause shall apply to a Government servant, including scientist or technical expert who (i) is on assignment under the Indian Technical and Economic Co-operation (TTEC) Programme of the Ministry of External Affairs and other aid programmes, (ii) is posted abroad in a foreign based office of Ministry/Department and (in) goes on a specific contract assignment to a foreign Government unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year, and (c) it shall be open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause."
5. The important provisio in the above rule regarding withholding permission of request of voluntary retirement is contained in provision @ namely it shall be open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. It is not disputed that the applicant was not under suspension when he submitted the notice for voluntary retirement on 17.6.97.
6. Mr, K.C. Thaker learned advocate for the applicant referred in this connection the judgment of Principal Bench in Shri Raj Pal Gaindh v. Union of India and Ors., (1987) 3 ATC 533=1987(4) SLJ 352 (ND) (CAT) wherein it was clearly ruled that except when a Govt. servant is under suspension it is not open to the appropriate authority to withhold permission to Government servant seeking voluntary retirement. Otherwise a notice given by the Govt. servant does not require any acceptance by the competent authority except the circumstances stated in provision 56 (K) (C). Hence, the Bench concluded that :
“We are fortified in our conclusion that voluntary retirement except under suspension in such case does not warrant a specific sanction or acceptance by the Government, by the ruling of the Supreme Court in Dinesh Chandra Sangma v. State of Assam where the Supreme Court while interpreting similar provisions in the rules adopted by the State of Assam has ordained that a notice of Voluntary retirement in writing is enough and its acceptance. As such is not necessary.
We accordingly find that the notice of voluntary retirement, properly addressed to the Secretary of the Department and sent by the petitioner on 10.6.1981 gets automatically effective after the expiry of three months; i.e. on 10.9.1981 and the petitioner cannot be deemed to be in service of the Govt. with effect from that date.”
7. Mr. thaker cited the judgment of the Hyderabad Bench of CAT in S. K, Jain v. Union of India and Ors. in OA/175/93 reported in 401 Swamy’s C.L. Digest 1993=1993(2) SLJ 347 (Hyd.) (CAT) that voluntary retirement is under FR 56(K) and officer not under suspension, retirement takes effect automatically on expiry of notice period. In the present case, we have seen that applicant gave notice on 17.6.97 for voluntary retirement effective from 3.10:97 which was followed by another letter dated 4.9.97 in which he had requested that he should be relieved from 16.9.97 i.e. after completion of three months notice period commencing from the date of his earlier application dated 17.6.97. He also surrendered his identity card on 15.9.97. He also wrote a letter on 16.9.97 to the respondents stating that he was relinquishing of his charge and also submitted his handing over note. According to the applicant, he was relieved by another officer on 23.9.97 and handing and taking over note signed by both the officers as per Annexure A-7. This fact is not denied by the respondents but on the other hand they have admitted clearly in the reply that “With reference to para 6.7 it is submitted that the Department had no other alternative but to relieve the applicant since he had been abstaining himself unauthorisedly since 16.9.97 and the charge could not have been kept vacant for long.” Only after receipt of the Govt. letter dated 30.9.97 the respondents wrote to the applicant on 1.10.97 stating that his request for voluntary retirement was not accepted as disciplinary proceedings were contemplated against him. It is seen, therefore, that the respondents did not intimate the applicant anything until the expiry of notice period of three months regarding whether the requested the Department of the applicant was accepted or not. They have taken the stand that after having asked for relieving him from 3.10.97 the applicant could not pre-pone the retirement to 16.9.97. There is no basis in the argument of the learned counsel for the respondents as the Rule 56 (k) provides for three months notice and the applicant had clearly in his letter dated 4.9.97 requested the Department to relieve him after completion of three months period starting from the original date of his request i.e. 17.6.97. Accordingly, once three months period expired on 16.9.97 the applicant is deemed to have been retired.
8. Mrs. Bhatt learned advocate for the respondents relied on certain judgments to support her contention. The first one is the judgment of Hon’ble Supreme Court in B.J. Shelat v. State of Gujarat, AIR 1978 SC 1109=1978 SLJ 503 (SC).. However, we find that the said judgment of the Hon’ble Supreme Court has no application in this case as it deals with application of Rule 161 of Bombay Civil Services (Conduct, Discipline and Appeal) Rules (1932) that the specific condition that “Provided that it shall be open to the appointing authority to withhold permission to retire a Government servant who is under suspension or against whom departmental proceedings are pending or contemplated and who seeks to retire under this sub-clause.” The present case deals with the application of Rule 56(K) of F.R. The next case of Hon’ble Supreme Court’s case in Punjab National Bank v. P.K. Mittal, AIR 1989 SC 1083=1989(2) SLJ 1 (SC) also has no application as it deals with the question of resignation of the employee. Here we are dealing with the case of voluntary retirement. The next case cited by Mrs. Bhatt in Union of India v. A.N. Saxena, AIR 1992 SC 1233, deals with the question of granting stay of disciplinary proceedings. We see no relation of that in the present case. The next case cited by Mrs. Bhatt in Baljit Singh v. State of Haryana, AIR 1997 SC 2150, deals with interpretation of the order of Punjab Civil Services Rules which has no application here. The next case of Hon’ble Supreme Court in Himachal Pradesh Horticultural Produce Marketing and Processing Corporation Ltd. which has no application in this case as it deals with the interpretation of the company rules. Accordingly, the cases cited by the respondents do not help them.
9. It is not disputed that the applicant was not under suspension. The only reason that
could be available to the respondents to reject the notice for voluntary retirement under
Rule 56 (K) of F.R. is that the applicant should have been under suspension. Here it is not
the case. The judgments cited by the learned advocate for the applicant have also clearly
laid down that unless the applicant is under suspension, request for voluntary retirement,
under Rule 56(K) cannot be rejected. In the facts and circumstances of the case, we allow
the OA. As per the notice of voluntary retirement submitted by the applicant dated 17.6.97
the applicant stands voluntary retired as on 16.9.97 (A.M.) Accordingly, the applicant is
entitled for retirement benefits under the rules. In case there are charges against the
applicant the department has got the liberty to proceed against him even after retirement
after following the prescribed procedure and after getting the approval of the competent
authority.
With the above order, the OA is disposed of accordingly. No. costs.