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2001 DIGILAW 295 (GAU)

Ashok Kumar Sahu v. Union of India and Ors.

2001-10-04

B.LAMARE, P.G.AGARWAL

body2001
P. G. Agarwal, J. — Heard Mr. PK Goswami and Mr. BK Sharma, learned & Senior Advocates for the petitioner and Mr. KK Mahanta, learned Senior Central Govt Standing Counsel and Mr. BJ Talukdar, learned Govt Advocate for the State of Assam. 2. The petitioner, Shri Ashok Kumar Sahu joined Indian Police Service in the year 1975 as direct recruit. He was selected for the Assam Meghalaya Joint Cadre and at the relevant time he was serving as Inspector General of Police (OSD), Assam. On 30th April, 1997 the petitioner addressed the following letter seeking voluntary retirement: "To The Chief Secretary to the Government of Assam, Dispur, Guwahati 6. Sub: Voluntary retirement from All India Services. Ref: Under sub-rule (2A) of Rule 16 of the All India Services (Death-cum-Retirement Benefit) Rules, 1958. Sir, I have the honour to inform you that on personal grounds I would like to quit the India Police Service, on voluntary retirement, to which I was recruited on the basis of the examination held in 1974 and allotted to the Joint Cadre of Assam and Meghalaya, with 1975 as the year of allotment. Whereas, I will be completing 22 years of service as on the 16th July, 1997,1 intended to voluntarily retire from service with effect from the 1st August, 1997 afternoon. Meanwhile, I would like to request you to kindly issue necessary directions so that my pension papers are processed and finalised as per existing rules, and oblige. Yours faithfully Sd/-AK. Sahu" 3. After the issuance of the said notice some show cause notices were issued by the Govt of Assam and thereafter vide order dated 4.6.97 the petitioner was placed under suspension and the Memorandum of charge sheet dated 9.7.97 was initiated. According to the petitioner on 22.9.97 he received the following notification dated 8th September, 1997 issued by the Govt of Assam. "Orders by the Governor Notification Dated: Dispur, the 8th September, 1997. No. HMA (IPS) 58/Pt-V/39: The Governor of Assam is pleased to accept the prayer for voluntary retirement tendered by Shri AK Sahu, IPS (U/S) and to allow Shri Sahu to go on voluntary retirement with effect from 1.8.97 (FN) without prejudice to the ongoing disciplinary proceedings against him. Sd/- D N Saikia, Joint Secretary to the Govt of Assam, Home (A) Department." 4. Sd/- D N Saikia, Joint Secretary to the Govt of Assam, Home (A) Department." 4. The petitioner thereafter claimed to have filed certain representation but the Govt of Assam intimated the petitioner that he stood retired from service with effect from 1.8.97. Petitioner thereafter approached the Central Administrative Tribunal, Guwahati by filing OA No. 49 of 2000 praying for quashing of the order of suspension, initiation of departmental proceeding and the impugned order as quoted above. 5. The case of the petitioner is that he submitted his application for voluntary retirement on 30.4.97 in terms of Rule 16 (2A) of the All India Service (Death-cum-Retirement Benefit) Rules, 1958, herein after referred to as the Rules after giving three months notice to the respondent-State. The respondents were required to accept the said resignation and communicate the same at the earliest and on or before the crucial date i.e. 1.8.97. As the respondent-State issued the notification on 8.9.97, i.e. after 1.8.97 and communicate the same on 22.9.97, the acceptance was not a valid acceptance under the rules and as such it can not be acted upon. The petitioner also challenged the impugned order on the ground that the order of acceptance was communicated by the State of Assam, whereas under the Rules it was required to be made only by the Joint Cadre Authority. 6. The case of the respondents is that on receipt of the Annexure 1, as quoted above, it was forwarded to Central Govt for consideration but subsequently the Central Govt returned the same back to place it before the Joint Cadre Authority who was the competent authority to consider, approve and accept the prayer for , voluntary retirement. Accordingly the Joint Cadre Authority met and vide resolution dated 25.7.97 allowed the petitioner to go on voluntary retirement without prejudice to the existing disciplinary proceeding against him. According to the respondents the acceptance of voluntary retirement communicated by the Govt of Assam on 8.9.97 is valid and proper and the petitioner is not entitled to any relief. 7. The learned Central Administrative Tribunal on consideration of the law and the various decisions of the Apex Court, held that the notice for retirement was accepted in conformity with Rule 16 (2 A) of the Rules and as such the petitioner is not entitled to any relief. 7. The learned Central Administrative Tribunal on consideration of the law and the various decisions of the Apex Court, held that the notice for retirement was accepted in conformity with Rule 16 (2 A) of the Rules and as such the petitioner is not entitled to any relief. The petition was dismissed and hence the present application under Article 226/227 of the Constitution. 8. It may be mentioned here that before approaching the Central Administrative Tribunal the petitioner formally withdrew his application for voluntary retirement dated 30.4.97 by sending communication Annexure 7 dated 6.4.99 stating "my request seeking voluntary retirement is nullified by the subsequent order of suspension and hence I formally withdraw my petition dated 30.4.97". As regards the suspension the case of the respondent-State is that after submission of the application for voluntary retirement the petitioner started indulging in spreading ill-will and indiscipline among the police force and the State Govt and thereby creating defamation and chaos among the members of the police force. However, in this writ petition we are not concerned with the matter of suspension or disciplinary proceeding. The question for determination is whether the petitioner stands retired from the Indian Police Service with effect from 1.8.97 or he is still deemed to be in service. The proviso of clause (2) and clause (2A) of Rule 16 reads as follows : "Provided that the member of the service under suspension shall not retire from service except with the specific approval of the State Govt concerned. (2A) A member of the service may, after giving three month's previous notice in writing to the State Government concerned, retire from service on the date on which he completes 20 years of qualifying service or any date thereafter to be specified in the notice. Provided that, a notice of retirement given by a member of the service shall require acceptance by the State Government, if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the service could have retired from service under sub-rule (2)." 9. The general principles regarding a resignation were considered by the Apex Court in the case of Raj Kumar vs. Union of India, AIR 1969 SC 180 . The Apex Court held: "The petitioner, a member of Indian Administrative Service, asked the Govt to relieve him from service. The general principles regarding a resignation were considered by the Apex Court in the case of Raj Kumar vs. Union of India, AIR 1969 SC 180 . The Apex Court held: "The petitioner, a member of Indian Administrative Service, asked the Govt to relieve him from service. The Government accepted it. But before communication of the order accepting his resignation reached him, he withdrew his offer of resignation, Held, that he had no locus paenitentiae to so withdraw his offer of resignation after it was accepted; (2) that the principles that an order terminating employment is not effective until it is intimated to the employees could not apply to the facts of the case; (3) that there is no rule framed under Article 309 of the Constitution about when the resignation becomes effective; (4) that clauses (c) and (d) contained in the Government of India, Ministry of Home Affairs Memo dated 6.5.1958 have no statutory force; and (5) that it being no order of dismissal. Article 311 of the Constitution was not attracted. AIR 1966 SC 1313 Dist." 10. The Constitution Bench of the Apex Court approved the above decision in the case of Union of India vs. Gopal Chandra Misra & others, AIR 1978 SC 694 . "It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resignor. This general rule is ^ equally applicable to Govt servants and constitutional functionaries. In the case of a Govt servant or functionary who can not, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office tenure terminated, when it is accepted by the competent authority." 11. In the case of a Govt servant or functionary who can not, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office tenure terminated, when it is accepted by the competent authority." 11. In the case of State of Haryana vs. SK Singhal, AIR 1999 SC 1829 , the Apex Court considered the law of voluntary retirement in the light of its earlier decision and observed: "Thus, from the aforesaid three decisions it is clear that if the right to voluntarily retirement is conferred in absolute terms as in Dinesh Chandra Sangma's case ( AIR 1978 SC 17 ) by the relevant rules and there is no provision in Rules to withhold permission in certain contingencies, the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. It, however, as in B J Shelat's case ( AIR 1978 SC 1109 ) and as in Sayed Muzaffar Mir's case ( AIR 1995 SC 176 ), the concerned authority is empowered to withhold permission to retire if certain conditions exists, viz in case the employee is under suspension or in case a departmental inquiry is pending or is contemplated, the mere pendency of the suspension or departmental inquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on expiry of the period specified. What is further needed is that the concerned authority must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in BJ Shelat's case and in Sayed Muzaffar Mir's case before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non-communi­cation of acceptance should be treated as amounting to withholding of permission." 12. In the case in hand, we find the acceptance by the Govt was required in view of clause (2 A) of Rule 16, as quoted above. The petitioner did not complete 38 years of qualified service or did not attain 55 years of age at the relevant time. Thus there is no dispute that acceptance was required. In the case in hand, we find the acceptance by the Govt was required in view of clause (2 A) of Rule 16, as quoted above. The petitioner did not complete 38 years of qualified service or did not attain 55 years of age at the relevant time. Thus there is no dispute that acceptance was required. As per the Govt of India decision contained in DP & AR letter No.l5011/47/78-AIS (11) dated 16th October, 1978 (fully quoted by the learned Tribunal) once the notice period begins to run, it may not be open to the Govt a unilateral act of suspension to prevent the running of three month's period. In other words, a member of the service, who has given notice for voluntary retirement under the aforesaid rule, will retire from service on the expiry of the period of the prescribed three months even if he is placed under suspension after he gives notice for retiring. 13. In view of the statement of the State Govt that the Joined Cadre Authority vide resolution dated 25.7.97 accepted the application of the petitioner for voluntary retirement, Shri Goswami has not disputed the acceptance as such. Further it is obvious that the said acceptance was made before the crucial date, i.e. on expiry of the notice period, i.e. 1.8.97. 14. The grievance of the petitioner is that the said acceptance was not commu­nicated to him on or before 1.8.97. Admittedly, the Govt notification is dated 8.9.97 which the petitioner claims to have received on 22.9.97. Therefore, Shri Goswami submits that as the order of acceptance was communicated to him on 22.9.97 only it shall be effective from that date only. As such, on 1.8.97 there was no order of acceptance and hence the notice for retirement became non est. The petitioner was not bound by his application for retirement and he continued to serve as if no notice was issued. In support of his submission the learned counsel has placed reliance on an observations of the Apex Court in the case of State of Punjab vs. Amar Singh Harika, AIR 1966 SC 1313 , the Apex Court observed: "The mere passing of an order of dismissal is not effective unless it is published, and communicated to the officer concerned. In support of his submission the learned counsel has placed reliance on an observations of the Apex Court in the case of State of Punjab vs. Amar Singh Harika, AIR 1966 SC 1313 , the Apex Court observed: "The mere passing of an order of dismissal is not effective unless it is published, and communicated to the officer concerned. An order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it does not take effect as from the date on which the order is actually written out by the said authority, such an order can only be effective after it is communicated to the officer concerned or is otherwise published. Held that the order of dismissal passed against the officer on the 3rd June 1949 could not be said to have taken effect until he came to know about it on the 28th May, 1951." 15. The decision in Amar Singh Harika (supra) was reiterated in the case of Union of India vs. Dinanath Shantaram Karekar, (1998) 7 SCC 569. The Apex Court held : "Where the services are terminated, the status of the delinquent as a Govt servant comes to an end and nothing further remains to be done in the matter but if the order is passed by merely kept in the file, it would not be treated to be an order terminating service nor shall the said order be deemed to have been communicated." 16. The decision in Amar Singh Harika (supra) was distinguished by the Apex Court in the case of Raj Kumar (supra) in the following words: "Our attention was invited to a judgment of this Court in State of Punjab vs. Amar Singh Harika, AIR 1966 SC 1313 in which it was held that an order of dismissal passed by an authority and kept on its file without communicating it to the officer concerned or otherwise publishing it did not take effect as from the date on which the order was actually written out by the said authority, such an order could only be effective after it was communicated to the officer concerned or was otherwise published. The principle of that case has no application here. Termination of employment by order passed by the Govt does not become effective until the order if intimated to the employee. The principle of that case has no application here. Termination of employment by order passed by the Govt does not become effective until the order if intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his service normally stand terminated from the date on which the letter of resignation is accepted by the appropriate autho­rity and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus paenitentiae but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an interference that resignation has not been accepted. In the present case the resignation was accepted within a short time after it was received by the Govt of India. Apparently the State of Rajasthan did not immediately implement the order, and relieve the appellant of his duties, but the appellant cannot " profit by the delay in intimating acceptance or in relieving him of his duties." 17. In support of his submission that the acceptance was required to be communicated within reasonable time and latest before the date of expiry of the notice, Shri Goswami has referred to the guidelines laid down by the Govt of India, which reads as follows: "DP & AR Letter No. 15011 /47/78-AIS (11) dated 16th October, 1978 -Under sub-rule (2) of Rule 16 ibid, retirement of a member of the service becomes effective on the expiry of three months' notice given by him, unless he is under suspension. Once the notice period begins to run, it may not be opened to the Govt a unilateral act of suspension to prevent the running of three months period. In other words, a member of the service, who has given notice for voluntary retirement under the aforesaid rule will retire from service on the expiry of the period of the prescribed three months even if he is placed under suspension after he gave notice. In other words, a member of the service, who has given notice for voluntary retirement under the aforesaid rule will retire from service on the expiry of the period of the prescribed three months even if he is placed under suspension after he gave notice. However, as provided in the Explanation below Rule 6(1) ibid, a departmental proceedings in terms of the aforesaid rule shall also be deemed to have been instituted against the pensioner on the date he was placed under suspension. In view of this, if a member of the service is placed under suspension after he givers notice for retiring from g service voluntarily, the benefit of the limitation contained in clause (b) (ii) of the proviso to Rule 6(1) ibid will not be available to him and departmental proceedings under this rule for reduction of his pensionary benefits can be initiated against him, even after the date of his retirement, for a misconduct committed by him while in service, although such proceeding may be in respect of an event which took place more than four years before the institution of such proceedings. DP & AR Letter No. 25011/2/80-AIS (11), dated 16th October, 1980 - It has been decided to lay down the following guidelines for the acceptance of the notice of retirement under sub-rule (2A) of Rule 16 of the All India Service (Death-cum-Retirement Benefits) Rules, 1958 for the information and guidance of the State Govts ; (i) A notice of voluntary retirement given by a member of the service may be withdrawn by him after it is accepted by the State Govt, only with the approval of the State Govt concerned provided the request for such withdrawal is made before the expiry of the period of notice. (ii) In case where disciplinary proceedings are pending or contemplated against a member of the service for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case, is of the view that the imposition of the major penalty of removal or dismissal from service would be warranted, the notice of voluntary retirement given by the officer concerned may not ordinarily be accepted. .... .... ...." 18. There is no dispute at the Bar the those guidelines have the force of law. .... .... ...." 18. There is no dispute at the Bar the those guidelines have the force of law. In the case of State of UP vs. Chandramohan, (1977) 4 SCC 345 , the Apex Court held: "The Instruction which were issued by the Govt to fill up the gaps in the provisions must be deemed to be part of the condition of service and would be binding on the Govt and can not be violated to the prejudice of the Govt servant." 19. Referring to clause (1) of the guidelines as quoted above, it is submitted that the right has been given to petitioner/Govt servant to withdraw the notice of retirement after the acceptance of the same by the authority. Hence, unless the acceptance is communicated to the petitioner/employee on or before the expiry of the notice period, a valuable right will stand extinguished. Therefore the authorities are bound to communicate the acceptance within reasonable time so that the employee, if so desire, may withdraw the notice for retirement. In the impugned order the Tribunal has held that there was no requirement on the part of the authority to communicate the acceptance of resignation, the petitioner has challenged the same staling that unless the acceptance is communicated within the time limit, how the employee will know that his resignation has been accepted and that he is no more a Govt servant. 20. The respondents, on the other hand, submitted that the guidelines cannot override the rules or create any additional right in favour of the Govt employee. The right to withdraw the resignation on or before the expiry date of notice was always available to the petitioner but the petitioner choose not to exercise the said right before 31st July, 1997. The letter of withdrawal as stated above, was sent in the year 1999 although the petitioner by his own admission received the communication of acceptance in September, 1997. The communication of the acceptance was therefore immaterial when it stands established that the approval acceptance was made prior to the 31.7.97 and in view of fact that both under the rules and the guidelines the outer limit for withdrawal of the application for retirement is before the expiry of the prospective date of retirement of the period of notice. Under the general rule the petitioner was entitled to withdraw the notice before 1.8.97. Under the general rule the petitioner was entitled to withdraw the notice before 1.8.97. The guidelines as quoted above has not created any additional right in favour of the employee except providing that the withdrawal can be made even after the order of acceptance provided the request for such withdrawal is made before the expiry of the period of notice. I, therefore find, no force in the submission that in view of the above guidelines the respondent authority was required to communicate the acceptance before the expiry of the period of notice. The guidelines merely provided for certain exigency where after acceptance also the employee may withdraw the notice but before the expiry of the period of notice. In the case of Balwant Gupta vs. Union of India, AIR 1987 SC 2534, the petitioner offered to resign from his service with effect from 31.3.81. The respondent purportedly accepted the resignation on 20th January, 1981 to be effective from 31st March, 1981. Before 31st March, 1981, the petitioner by letter dated 31st January, 1981 withdrew the application. The authority, however, refuses to approve the withdrawal, though made before the intended date of retirement under wrong notion that once the acceptance of notice of retirement is made, the withdrawal can not be allowed. The guidelines may be read and interpreted to clear the above doubt by providing that even after the acceptance of the prayer of retirement the petitioner can withdraw his application provided the outer limit (intended date of retirement) has not expired. Admittedly, the petitioner did not withdraw his notice before the expiry of the said period. This is not a case where the petitioner was required to seek permission to retire from service or the respondents were required to accord permission or communicate ^ the refusal of permission within time frame. The petitioner intimated his decision to severe master servant relationship after completion of 20 years of service. The decision in State of Haryana vs. SK Singhal (supra) was again considered by the Apex Court in the case of Tek Chand vs. Dile Ram, AIR 2001 SC 905 . The Apex Court observed : "In our view, this judgment fully supports the contention urged on behalf of e 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. The Apex Court observed : "In our view, this judgment fully supports the contention urged on behalf of e 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 voluntary retired had no effect. The present case is almost identical to the one decided by this Court in the aforesaid decision." 21. In this case no refusal to accept the voluntary retirement was communicated to the petitioner and the decision to accept the retirement was taken by the competent authority before the expiry of the period of notice. I, therefore, find no force in the submission that the notice of retirement became infructuous when acceptance was not communicated within three months period. 22. The impugned notification regarding the acceptance of prayer for voluntary retirement (Annexure 5, as quoted above) has been challenged on the ground that it was not issued by the competent authority. There is no dispute at the Bar that the petitioner belonged to the Joint Cadre of Assam and Meghalaya. As the sub-clause (2) of Schedule 1 of the All India Services (Joint Cadre) Rules, 1972 (m) the State Govt means Joint Cadre authority in relation to Member of All India Service born on Joint Cadre and the same definition applies in the matter of All India Service (Death-cum-Retirement Benefits) Rules, 1958. As the sub-clause (2) of Schedule 1 of the All India Services (Joint Cadre) Rules, 1972 (m) the State Govt means Joint Cadre authority in relation to Member of All India Service born on Joint Cadre and the same definition applies in the matter of All India Service (Death-cum-Retirement Benefits) Rules, 1958. m view of the above, the Central Govt referred the matter back to the State Govt to place it before the Joint Cadre Authority and we find that the decision to accept resignation of the petitioner was taken by the said Joint Cadre Authority. 23. The notification dated 8.9.97, Annexure 5 was issued by the Govt of Assam, Home (A) Department (Orders by the Governor). The notice for retirement was also addressed by the petitioner to the Chief Secretary to the Govt of Assam which the petitioner claims to be due to mistake. The question that arises is who is to implement the decision of the Joint Cadre Authority. Although Joint Cadre Authority Rules, 1972 is silent on the matter, we may however take a clue from the Govt of India decision in the matter by notification No. 25011/45/75AIS(II) dated 5.2.75 (GSR No. 2830 dated 20.12.75). It is provided "It has been decided that the notice under sub-rule (2) of Rule 16 addressed to the Central Govt can be treated as valid as defect in the notice is only formal and in the absence of a prescribed form, endorsing a copy of for the notice amounts to addressing the notice. Likewise, vide notification No. 28/8/72-AIS (11) dated 3 0.9.72 under 1.2 it was provided: "According to Rule 16 (3) of the Rules, the orders in each case would need to be issued by the Central Govt but the formal notification giving effect to the above order would be issued by the State Govt" (emphasis supplied). 24. In view of the above, it is held that the decision regarding acceptance of the prayer for voluntary retirement is to be taken by the Joint Cadre Authority, but the formal notification giving effect to the above, is to be issued by the State Govt. In the present case the decision was taken by the Joint Cadre Authority as held above, and the State Govt issued the Notification only by Annexure 5. There is no irregularity or illegality. 25. In the present case the decision was taken by the Joint Cadre Authority as held above, and the State Govt issued the Notification only by Annexure 5. There is no irregularity or illegality. 25. In the result, we find no merit in this writ petition and the writ petition is accordingly dismissed. There will be no order as to costs.