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Monday, July 26, 2010

Voluntary retirement under Rule 48 of CCS (Pension) Rules.

When the Govt. servant is not under suspension, and serves notice for voluntary retirement under rule 48 of CCS(Pension)Rules it cannot be denied by the competent authority.
CENTRAL ADMINISTRATVIVE TRIBUNAL, PRINCIPAL BENCH

OA 1098/2010

New Delhi this the 21st day of July, 2010

Hon ble Shri Shanker Raju, Member (J)
Hon ble Dr. Veena Chhotray, Member (A)


Ved Prakash Sharma,
S/o Shri Shiv Lal Sharma,
Retired Assistant Postmaster (BCR),
Narnaul Head Post Office,
Gurgaon Division,
R/o 270, Baba Haridas Nagar,Tikri Border,Delhi Applicant.
(By Advocate Shri Sant Lal )

VERSUS

1. The Union of India
Through the Secretary,
M.O. Communications & I.T.,
Department of Posts,
Dak Bhawan, New Delhi-110001.

2. The Chief Postmaster General,
Haryana Circle, Ambala Cantt-133001.

3. The Director Postal Services,
Gurgaon Division,
Gurgaon 122001. Respondents.

(By Advocate Shri K.R. Sachdeva )

O R D E R

Shri Shanker Raju, Member (J):


Letter dated 14.10.2009, Memo dated 18.02.2010 and letter dated 08.03.2010 which relates to a show cause notice issued to the applicant to join duty and to be proceeded against him departmentally and also rejection of his request for voluntary retirement, are being challenged. Applicant, who had not only crossed the age of 55 years but had also completed more than 30 years qualifying service, had served a notice of three months for voluntary retirement under FR 56 (K) (1) on the respondents, on 06.06.2009. However, as the notice had not referred to the correct rule, a communication was sent to the applicant, on 03.07.2009, which resulted in letter dated 17.07.2009 to the respondents whereby Rule 48 of the CCS (Pension) Rules, 1972 was referred to. However, on 14.09.2009, request for voluntary retirement was turned down due to a contemplated disciplinary case.

2. Learned counsel for the applicant states that under FR 56 (K) (1) on three months notice for Group `A and `B posts, it is not open to the appropriate authority to withhold permission unless the applicant is under suspension. He has relied upon the decision of the Tribunal in Krishan Pal Vs. Union of India & Ors. (OA 1510/89), to buttress his plea. Leaned counsel has also relied upon the decision of the Apex Court in Dinesh Chandra Sangma Vs. State of Assam (1977 (4) SCC 441). He submits that in D.N. Madan Vs. Union of India & Ors. (OA 87/2004), decided on 15.07.2004, it has been held that under Rule 48 of the CCS (Pension) Rules, 1972 on completion of thirty years qualifying service, acceptance of notice is not required. In this background, it is stated that as the notice under Rule 48 of the Pension Rules was given by the applicant on 17.07.2009, he is deemed to have retired on 18.10.2009 and is entitled to the benefits as admissible to a retiree.

3. On the other hand, respondents counsel Shri K.R. Sachdeva, vehemently opposed the contentions. According to him, the earlier notice under FR 56 (K)(1) was not in accordance with the rules and as the second notice under Rule 48 the Pension Rules was issued, a contemplated disciplinary proceeding on account of absence of the applicant was in vogue, as such the permission to retire him has been withheld which does not suffer from any infirmity.

4. We have carefully considered the rival contentions of the parties and perused the material on record.

5. Rule 48 of the CCS (Pension) Rules ibid clearly provides, on completion of thirty years of service on notice of three months, an automatic voluntary retirement and the only impediment is that one should not be under suspension which is not in the present case. A Division Bench of the Tribunal in Thakur Ajeet Singh Vs. Union of India & Ors. (2004 (1) ATJ 440) ruled that three months notice under Rule 48 of the Pension Rules does not require any permission. Moreover, the issue has been led to rest by the Apex Court in Tek Chand Vs. Dile Ram (2001 SCC (L&S) 555) by making the following observations:
35. In our view, this judgment fully supports the contention urged on behalf of the appellant in this regard. In this judgment, it is observed that there are three categories of Rules relating to seeking of voluntary retirement after notice. In first category, voluntary retirement automatically comes into force on expiry of notice period. In second category also, retirement comes into force unless an order is passed during notice period withholding permission to retire and in third category, voluntary retirement does not come into force unless permission to this effect is granted by the competent authority. In such a case, refusal of permission can be communicated even after the expiry of the notice period. It all depends upon the relevant Rules. In the case decided, the relevant Rule required acceptance of notice by appointing authority and the proviso to the Rule further laid down that retirement shall come into force automatically if appointing authority did not refuse permission during the notice period. Refusal was not communicated to the respondent during the notice period and the court held that voluntary retirement came into force on expiry of the notice period and subsequent order conveyed to him that he could not be deemed to have voluntarily retired had no effect. The present case is almost identical to the one decided by this Court in the aforesaid decision.

36. This Court in B.J. Shelat v. State of Gujarat & Ors. [(1978) 2 SCC 201] while dealing with a case of voluntary retirement, referring to Bombay Civil Service Rules, Rule 161(2)(ii) proviso and Rule 56(k) of the Fundamental Rules, in similar situation, held that a positive action by the appointing authority was required and it was open to the appointing authority to withhold permission indicating the same and communicating its intention to the Government servant withholding permission for voluntary retirement and that no action can be taken once the Government servant has effectively retired. Paras 9 and 10 of the said judgment read thus :

"9. Mr. Patel next referred us to the meaning of the word 'withhold' in Webster's Third New International Dictionary which is given as 'hold back' and submitted that the permission should be deemed to have been withheld if it is not communicated. We are not able to read the meaning of the word 'withhold' as indicating that in the absence of a communication, it must be understood as the permission having been withheld.

10. It will be useful to refer to the analogous provision in the Fundamental Rules issued by the Government of India applicable to the Central Government servants. Fundamental Rule 56(a) provides that except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. Fundamental Rule 56(j) is similar to Rule 161(aa)(1) of the Bombay Civil Services Rules conferring an absolute right on the appropriate authority to retire a Government servant by giving not less than three months' notice. Under Fundamental Rule 56(k), the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to Sub-rule 56(k) states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this Clause. Thus, under the Fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso whereunder the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of Rule 161(2)(ii) and the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the grounds specified in the proviso." In this decision, effect of Rule 56(k) of Fundamental Rules is also considered which answers the argument of the learned Counsel for the respondent on this aspect. It may also be noticed that under Rule 48A in Government of India's decision giving instructions to regulate voluntary retirement it is stated, "Even where the notice of voluntary retirement given by a Government servant requires acceptance by the appointing authority, the Government servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice".

37. If we accept the argument of the learned senior Counsel for the respondent, even if the refusal of voluntary retirement is not communicated within the period specified in the notice, the voluntary retirement cannot be effective unless it is accepted by the appointing authority, no meaning and effect can be given to the proviso to Sub-rule (2) to Rule 48A. It is cardinal rule of construction that no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute or a Rule.
6. In the light of the above, as the applicant has served a proper notice under Rule 48 of the Pension Rules and being eligible on 17.07.2009, the same attains finality and does not require any permission and as the applicant was not under suspension, he is deemed to have retired on 18.10.2009. Rejecting his request on account of disciplinary case is not in accordance with the rules.
7. Resultantly, O.A. is allowed. Impugned orders are set aside. Respondents are directed to deem the applicant retired voluntarily w.e.f. 18.10.2009 and he shall be entitled to all pensionary benefits, which are as per rules. The same may be released to him within a period of two months from the date of receipt of a copy of this order. No costs.



( Dr. Veena Chhoray) (Shanker Raju)
Member (A) Member (J)

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