Judgment:
1. The applicant Shri Sukumar Kar, has filed OA 40 of 1998 and OA 131 of 1998 under Section 19 of the Administrative Tribunals Act, 1985. In OA 40 of 1998 the applicant has prayed that the respondents be directed to produce the relevant records of the case and upon such production for a declaration that the applicant stood voluntarily retired on expiry of the notice period of 3 months from the notice dated 3.12.1990 or alternatively from the notice dated 6.6.1995. It has further prayed that the respondents be directed to pay the applicant all the retiral dues with interest @ 18% p.a. to compensate the monetary loss for arbitrary action on the part of the respondents. In OA 131 of 1998 the applicant has prayed for quashing of impugned order dated 5.11.1997 (Ann. A-6) and also a direction to the respondent to pay the cost of the application.
2. Briefly the facts in OA of 1998, as per applicant are that the applicant joined the respondents establishment on 03.03.1965 as Tracer.
During the course of his service, he gel several promotions and on the date of filing of the OA is functioning as Draughtsman Grade I in the pay scale of Rs. 1200-2040. The applicant was posted at Khaprail, Darjeeling and submitted an application for leave on 25.09.1990, which was granted. He applied for extension of leave and then decided to seek voluntary retirement from service as he has completed the qualifying service under Rule 48-A of CCS (Pension) Rules, 1972. The applicant submitted his application for voluntary retirement on 03.12.1990 through proper channel to Chief Engineer, Eastern Command, HQ Engineer's Branch, Fort Williams, Calcutta (Respondent No. 2). The Garrison Engineer, Khaprail P.O. Matigara, Darjeeling (Respondent No.3) vide his letter dated 08.02.1991 raised certain observations on the application for voluntary retirement dated 03.12,1990 and informed the applicant that in case he did not resume his duties, the disciplinary action would be initiated against him. Respondent No. 3 also directed the applicant to supply 5 additional copies of the notice for voluntary retirement dated 03.12.1990 which was supplied by the applicant. When the applicant did not get any communication from the respondents, he chased the case for voluntary retirement after he received letter dated 19.06.1991 from Garrison Engineer, Khaprail (Respondent No. 3). By the said letter the Garrison Engineer informed the applicant that his case for voluntary retirement will be recommended only after finalisation of disciplinary action for his unauthorise absence and the case for disciplinary action has already been initiated by the office of respondent No. 3. The applicant sent his representation to Garrison Engineer, Khaprail on 23.12.1992. The Garrison Engineer. Khaprail vide his letter dated 06.02.1993 intimated that the case of the applicant has been forworded to higher authorities for necessary action.
Meanwhile, the applicant came to know that the Chief Engineer, HQ Eastern Command (Respondent No. 2) desired vide letter dated 2.3.1995 (Ann. A-6J addressed to the Chief Engineer Siliguri Zone that another fresh notice should be obtained from the applicant. The applicant submitted another notice for voluntary retirement to Garrison Engineer Khaprail (Respondent No. 3) with copy to all concerned on 6.6.1996. As per applicant 3 months period from 6.6.1995. As per applicant 3 months period from 6.6.1995 the notice for voluntary retirement expired on 6.9.1995 and the voluntary retirement became effective. There was no disciplinary case either pending or contemplate against the applicant, but the respondents by delaying the issue of voluntary retirement of the applicant have framed disciplinary case against the applicant for not reporting back on duty on expiry of leave. He has been served with charge sheet dated 5.11.1997 under Rule 14 CCS (CCA) Rules, 1965 and thereby not paying the retiral dues on account of such disciplinary case. Hence this OA.3. The applicant has filed another OA 131 of 1998 in which he has challenged the impugned order dated 5.11.1997 (Annexure A-6) i.e. the charge sheet under Rule CCS (CCA) Rules, 1965.
4. Heard Shri R.K. De for the applicant and Shri B. Mukherjee for the respondents and perused records.
5. Sri R.K. De, learned Counsel for the applicant submitted that an application for voluntary retirement on 3.12.1990 (Ann.2) and, therefore, after the expiry of 3 months he should have been treated as voluntary retired. The applicant did not receive any communication in this regard from the respondents and he again applied for his voluntary retirement on 6.6.1995 in pursuance to decision of Chief Engineer HQ Eastern Command communicated by G.E. Khaprail letter dated 13 April 1995. From these two letters the intention of the applicant is clear that he decided to proceed on voluntary retirement, but the respondents did not take any action and delayed the same. In fact, when the respondents failed to take any action on applicant's application dated 3.12.1990 they should have decided the issue when the applicant submitted his second application on 6.6.1995, which means taking into account 3 months notice, the applicant is deemed to have proceeded on voluntary retirement w.e.f. 6.9.1995. In order to strengthen the argument learned Counsel for the applicant placed reliance on Hon'ble Supreme Court decision in State of Haryana and Ors. v. S.K. Singer, 1999 SCC (L&S) 859=1999(3) SLJ 194 (SC) in which their lordships have held that voluntary retirement automatically comes into force on expiry of notice period unless the order is passed by the competent authority during notice period withholding permission to retire. Learned Counsel for the applicant also cited observation of Hon'ble Supreme Court in para 33 in Tek Chand v. Dile Ram, "The proviso to Sub rule (2) is clear and certain in its terms. If 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 sought for become effective from the date of expiry of the said period, In this case, admittedly, the appointing authority did not refuse to grant the permission for retirement to Nikka Ram before the expiry of the period specified in the notice dated 5.12.1994. The learned Senior Counsel for the respondents argued that the acceptance of voluntary retirement by appointing authority in all cases is mandatory. In the absence of such (sic) acceptance the Government servant continued to be in service. In support of this submission he drew our attention to Rule 56(K) of Fundamental Rules. He also submitted that acceptance may be on a later date, that is, even after the expiry of the period specified in the notice and the retirement could be effective from the date specified in the notice. Since the proviso to sub rule (2) of Rule 48-A is clear in itself and the said Rule 48-A self contained, in our opinion, it is necessary to look to other provision, more so in the light law laid down by this Court. An argument that acceptance can be even long after the date of the expiry of the period specified in the notice and that the voluntary retirement may became effective from the date specified in the notice, will lead to anamolous situation." 6. Learned Counsel for the applicant further submitted that the respondents have deliberately delayed the case of the applicant against the provisions of the rules and instructions, in this regard and thus they have managed to bring out the disciplinary case against the applicant for not reporting back on duty on expiry of leave. Sri R.K.De, learned Counsel for the applicant finally submitted that the action of the respondents is malafide specially when the applicant had already intimated his intention not to serve any longer and had already served the required notice which had to be treated as final. He also argued that the applicant should not suffer on account of any delay on the part of the respondents and the respondents have no power to withhold the pesnion, gratuity and other retiral benefits of the applicant as the applicant voluntarily retired as a result of notice dated 3.12.1990 or dated 6.6.1995. Learned Counsel for the applicant also argued that the applicant is entitled for full retiral benefit as he has completed more than 30 years qualifying service when he served notice on 6.6.1995.
7. The respondents have contested the claim of the applicant in both the OAs i.e. OA 40/98 and OA No. 131/98. Sri B. Mukherjee, Counsel for the respondents submitted that the applicant proceeded on Earned leave for 28 days w.e.f 15.5.1989 to 11.6.1989. He was to resume his duties on 12.6.1989. On expiry of leave on 11.6.1989, the applicant did not report back for duty inspite of G.E. Khaprail letter and telegram dated 5.8.1989, 31.8.1989, 16.11.1989, 10.3.1990 & 8.2.1991. In between the applicant submitted application for voluntary retirement dated 5.12.1990 direct to Chief Engineer Hqrs. Eastern Command with a copy to G.E. Khaprail. The learned Counsel for the respondents stated that the case of the applicant was not recommended due to non finalisation of his long absence and the applicant was duly informed vide G,E. Khaprail letter dated 13.12.1990 & 8.2.1991. He also submitted that the application for voluntary retirement dated 3.12.1990 & 6.6.1995 are not properly worded and a clear cut notice has not been given. Hence, the respondents were unable to take any action on these 2 applications. He further submitted that the applicant has acted in an irresponsable manner and be neither submitted proper application for leave nor has attached the medical certificate and, therefore, the respondents have no choice, but to take disciplinary action against the individual for wilful absence which tantamounts to breach of office discipline and gross misconduct and misdemenour on the part of the individual.
Consequently, charge sheet has been served on the applicant on 5.11.1997. Since the matter is lying for adjudication before this Tribunal, no action has been taken on the charge sheet dated 5.11.1997 by the respondents.
8. We have gone through the various documents on record. The scheme of voluntary retirement of Central Government employees is placed at annexure A-1. According to which a clear cut notice is to be given by the Govt. employees mentioning the date from which the Govt. employee wants to proceed on, voluntary retirement, The letter dated 3.12.1990 regarding voluntary retirement sent by the applicant to Chief Engineer Hqrs. Eastern Command, Calcutta does not mention the date from which the applicant wants to proceed on voluntary retirement. In absence of clear cut notice, the respondents are quite justified in not taking any action in this letter. We would like to point out that the applicant was fully aware that his voluntary retirement case was not finalised.
He was duly informed by G.E. Khaprail vide his letter dated 8.2.1991 that if the did not resumes his duties he was liable for disciplinary action. Subsequently, the G.E. Khaprail (Respondent No. 3) vide his letter dated 19.6.1991 informed the applicant in clear terms that the case of the applicant for voluntary retirement would be decided after completion of disciplinary proceedings. Therefore, the applicant should have had no confusion about the status of his case for voluntary retirement.
9. We do not agree with the contention of learned Counsel for the applicant that when the applicant sent his application for voluntary retirement on 3.12.1990 and also on 6.6.1995, he should be deemed to have proceeded on voluntary retirement after the expiry of 3 months. In this case, we should like to point out that in case of voluntary retirement a clear cut notice and specific date for proceeding on voluntary retirement is to be given, The facts and circumstances of 2 cases cited by the learned Counsel for the applicant viz State of Haryana v. S.K. Singer (supra) & Tek Chand v. Dile Ram, (supra) are distinguishable and hence not applicable in this case, because in both the cases the petitioners had given clear cut notice for voluntary retirement and the Apex Court held that the petitioners automatically ceased to be Govt. servant after the expiry of the notice period in absence of any communication from their controlling authority.
10. We proceed to examine the applicant's application dated 6.6.1995.
The subject matter of the application has been given as voluntary retirement, whereas in the body of the letter the applicant has written "I hereby, tender my resignation w.e.f. 6.6.1995 for premature voluntary retirement with 3 months advance notice under the provisions of Rule 48-A of CCS (Pension) Rule, 1972 which may kindly be accepted afresh new." If this letter is taken into account, the applicant should be deemed to have resigned from his service w.e.f 6.6.1995 and, therefore, is not entitled for any retiral benefit. The resppndents are quite correct in not taking any cognizance of this letter as it is confusing because it talks about voluntary retirement as well as resignation. We would like to point out that the contention of learned Counsel for the applicant that the applicant should be treated as on voluntary retirement w.e.f. 6.6.1995 is not correct. The applicant continues to be in the Govt service and the respondents are well within their legal rights to take action for any act of misconduct as per the extant rules.
11. In view of the facts and circumstances discussed above OA 40/98 is devoid of merit and, therefore, dismissed with no order as to costs.
12. In view of our above observation the OA 131 of 1998 is finally disposed of with the direction to the respondents to complete disciplinary proceedings within a period of 4 months from the date of communication of this order. The applicant is also directed to cooperate with respondents for conclusion of disciplinary proceedings.