Judgment :- 1. The petitioner herein-Dr.V.Sankaran, filed O.A. No.10452 of 1998 on the file of the Tamil Nadu Administrative Tribunal, Chennai (later converted as the present Writ Petition), seeking to call for the records of the 1st respondent relating to proceedings in G.O. (D) No.107, Health and Family Welfare (D-2) Department, dt. 11.2.1994 as confirmed by order of the said authority dt.14/3/97 as per the proceedings in G.O.(D) No.1349, Health and Family Welfare Department, dt.15/10/97, with a consequential direction to the respondents to reinstate the petitioner in service with all attendant benefits till the actual date of superannuation and to regulate the leave and pending increments of the petitioner. 2. The petitioner was appointed as Assistant Surgeon at the Primary Health Center at Satyamangalam, South Arcot District in 1966. He was transferred to different places and, during the period 1986-88, while he was serving as Assistant Surgeon at the Government Hospital, Tittagudi, South Arcot District, he submitted an Application, dated 05.04.1988, seeking to go on voluntary retirement with effect from 01.08.1988, on the ground that he had then completed 20 years of requisite service for going on voluntary retirement and also informing that there was no case pending against him in any court nor any departmental proceedings initiated against him by the Department. But curiously, the petitioners application, dated 05.04.1988, was not accepted by the respondent/Department and a memo, dated 18.07.1988, came to be issued after 103 days from the date of submission of the petitioners Application; whereby, the voluntary retirement proposal made by the petitioner came to be negatived, stating that a case/Civil Suit was pending against the petitioner before the Sub Court, Vrithachalam, and that there were no proper entries available in the petitioners Service Book about his completion of 20 years of service. Immediately after receipt of the said memo, dated 18.07.1988, the petitioner sent a reply letter, dated 09.08.1988, wherein, he explained that the Civil Suit referred to in the memo was already dismissed on 14.07.1987 by the Sub Court, Vrithachalam; therefore, there was no case pending against him as on the date of the Application dated 05.04.1988 and further, for the lapse on the part of the Department in properly maintaining the Service Book, the actual period of service ie., 20 years, put in by the petitioner, cannot be denied or disputed. The respondent/Department, without appreciating the explanation offered, proceeded to issue a charge memo, dated 18.10.1989, against the petitioner for his unauthorised absence from 21.12.1987. Ultimately, the petitioner came to be dismissed from service; hence, the present Writ Petition (Originally O.A. No.10452 of 1998). 3. Learned counsel for the petitioner Mr.K.Radhakrishnan, while elaborating his submission on the aspect of issuance of charge memo, dated 18.07.1988, as against the petitioner, would state that when the petitioner, after completing 20 years of service, submitted the application dated 05.04.1988, seeking to avail Voluntary Retirement Scheme with a request to relieve him with effect from 01.08.1988, and when there was no criminal charge pending against him on the date of application nor any case before a court of law; as provided under Fundamental Rule-56 of the Tamil Nadu Fundamental Rules (hereinafter referred to as ‘Rules’), the petitioner, who sought to go on voluntary retirement through the Application dated 05.04.1988 by relieving him with effect from 01.08.1988, should be deemed to have been granted such request, on expiry of 90 days from the date of Application on 05.04.1988. That being so, the approach of the Department, in utter disregard to FR-56 of the Rules, in rejecting the proposal by memo, dated 18.07.1988, after 103 days from the date of submission of the Application dated 05.04.1988 and ultimately passing the order of removal from service after initiating Disciplinary proceedings against the petitioner, having regard to the fact and reason that the petitioner complied with the requisite criterion for going on voluntary retirement as there was no case or departmental proceedings pending against him on the crucial date-05.04.1988 and that the petitioner, prima facie, completed 20 years of service; is totally unjust and unfair and therefore, the ultimate proceedings have no sanction in the eye of law. It is further submitted by the learned counsel that issuance of the charge memo dated 18.10.1989, nearly 1 ½ year after submission of the voluntary retirement proposal despite the reason that there was no bar in allowing the petitioner to go on Voluntary retirement, itself vividly reveals the mala fide intention on the part of the respondent to deprive the petitioner of the privilege he is legally entitled to. So submitting, learned counsel pleads that the Writ Petition may be allowed, quashing the impugned proceedings of the respondent with a direction to settle all pensionary and other attendant benefits eligible for the petitioner. 4. Per contra, learned Additional Government Pleader appearing for the respondents, would submit that the petitioner’s Application, dated 05.04.1988, seeking to go on voluntary retirement with effect from 01.08.1988, itself has no legal basis to stand inasmuch the petitioner did not put in 20 years of requisite service on the date of submitting the aforesaid Application. Learned Additional Government Pleader would further submit that, even before submitting the Application dated 05.04.1988, the Department had already issued Memos with Ref.No.99331/E6/2/86, dated 11.03.1987, 04.09.1987, 18.11.1987 and 08.02.1988, refusing the leave applied by him and for his unauthorized absence from duty on 21.12.1987. Since the petitioner remained unauthorisedly absent from duty from 21.12.1987, on the date of his application for voluntary retirement, memos were pending, directing the petitioner to join duty on or before 10.04.1987, 15.10.1987, 20.12.1987 and 15.03.1988; therefore, according to the learned Additional Government Pleader, FR-56 cannot be applied in the case of the petitioner. Secondly, it is contended that during 1975-78, the petitioner had not joined duty for about 3 year and 3 months when he was posted at the Government Hospital, Aruppukottai, and when the said period was considered along with the leave applied by him during 1986-87, it would be clear that the petitioner had completed only 18 years of service as on the date of submitting the application for voluntary retirement. Therefore, it can be well construed that the Department rightly proceeded against the petitioner by not applying FR-56 of the Rules and under such circumstances; the writ petition is liable to be dismissed. 5. I have meticulously considered the rival submissions made on either side having regard to the factual backdrop involved and the materials available on record. 6. Before proceeding to discuss the issues involved, at the foremost, it would be of much relevance to refer to the relevant provision viz., FR-56 (3) (a) (b) (f) of the Rules at Chapter-IX, embracing the scope of voluntary retirement. 6. Before proceeding to discuss the issues involved, at the foremost, it would be of much relevance to refer to the relevant provision viz., FR-56 (3) (a) (b) (f) of the Rules at Chapter-IX, embracing the scope of voluntary retirement. “ 56 (3): Voluntary retirement.-(a) A Government servant who has attained the age of fifty-years or who has completed twenty years of qualifying service may retire from service by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer for information. Before giving such notice, he may satisfy himself by means of a reference to such authority that he has completed the required number of years of qualifying service. (b) The period of three months notice shall be reckoned from the date of receipt of notice by the appointing authority. (f) The appointing authority shall issue orders before the date of expiry of notice either accepting voluntary retirement or not. Otherwise, the Government shall be deemed to have been retired voluntary from service at the end of the period of notice: … “ The above FR providing for voluntary retirement is succinctly clear that if the authority fails to take decision either way on the application made for voluntary retirement, the Government servant is deemed to have been retired voluntary from service, of course, in line with the proviso which stipulates conditions as specified in sub-rule (6) in respect of those persons who undergo suspension or disciplinary/criminal action at the crucial time. Therefore, the whole case hinges upon the issue as to whether, on the date of application for voluntary retirement ie., on 05.04.1988, any charge or disciplinary proceeding was pending as against the petitioner and whether the deeming provision in the Rules is applicable to the case of the petitioner. 7. Therefore, the whole case hinges upon the issue as to whether, on the date of application for voluntary retirement ie., on 05.04.1988, any charge or disciplinary proceeding was pending as against the petitioner and whether the deeming provision in the Rules is applicable to the case of the petitioner. 7. The petitioner, on the date of submitting his Application on 05.04.1988 seeking voluntary retirement, claimed to have completed 20 years of service and also, when the rejection memo was issued on 18.07.1988 ie., after 103 days from the date of submitting his Application seeking to relieve him on voluntary retirement with effect from 01.08.1988, he sent a reply with three specific reasons - firstly, there was no charge pending as on the date of the Application; secondly, there was no case pending before any court - with an explanation for the query raised by the respondent in the Memo dated 18.07.1988 regarding pendency of a civil suit, stating that the said suit was already dismissed on 14.07.1987 itself by the Sub Court, Vrithachalam, and enclosing a copy of the Judgment; and thirdly, refuting the claim of the respondent that he had put in only 18 years of service, for, he was working at different places during 1975-1978 and completed 20 years of service. 8. In regard to the claim and counter-claim, it is useful to refer to the proceedings of the District Medical Officer, Ramanathapuram, in Ref.No.11083/E1/76, dated 19.05.1976, which reveals the fact that the petitioner-Dr.V.Sankaran, MBBS, Assistant Surgeon, working in Government Hospital, Aruppukkottai, was instructed to hand over charge of Medical Officer, Government Hospital, Aruppukkottai, to Dr.S.Jegathambal, MBBS, Assistant Surgeon forthwith, since Dr.S.Jegathambal, MBBS, is the senior-most Assistant Surgeon. 8-A. A set of documents in the form of Annual Statement of General/Contributory Provident Fund Account, furnished by the Office of the Accountant -General I/II, for the year 1976-77, 1977-78 and 1978-78 issued on 30.04.1977, 27.03.1978 and 24.01.1979, indicates that, for the opening balance viz., Rs.558, Rs.1322 and Rs.2,670/- available in the Provident Fund Account of the petitioner concerning the above respective years, 7.5% interest was given and thereby, the balance came to be shown as Rs.1,322, Rs.2,670/- and Rs.4,119/- for those years of Account. 8-B. Another communication issued by the Medical Officer attached to the Government Hospital, Aruppukottai, vide RC No.1968/A2/77, dated 25.05.1977, is to the effect that the petitioner-Dr.V.Sankaran, MBBS, Assistant Surgeon, was relieved from duty at Government Hospital, Aruppukottai, on 25.08.1977 in the afternoon to proceed on deputation to the Government Hospital, Satyamangalam, as per proceedings made in Ref.Dis No.19494/E5/77 dated 23.05.1977 of the District Medical Officer, Ramanathapuram. 8-C. A letter, dated 12.08.1977, addressed by the petitioner through the Medical Officer, Government Hospital, Aruppukkottai, to the Accountant General, depicts that the petitioner requested the Accountant General to set right the missing credits in his Provident Fund Account for May, June, July, August and November, 1976. The said document shows that the petitioner was discharging duties during May, June, July, August and November, 1976, for which period, he was paid salary and due deductions were made towards contribution schemes. 8-D. In an inter-departmental letter, dated 03.10.1977, emanated from Dr.S.Jagadambal, MBBS, Medical Officer attached to the Government Hospital, Aruppukkottai, addressed to the District Medical Officer, Ramanathapuram, the former informed the latter that she would hand over charge of Medical Officer to Dr.V.Sankaran, MBBS, Assistant Surgeon and get herself relieved from the said Hospital on 05.10.1977 afternoon; thereby, it is quite clear that the petitioner was working on 03.10.1997. 8-E. One more communication, dated 02.01.1978, issued by the Madurai University, specifying the addressee as -Dr.V.Sankaran, MBBS, Government Hospital, Aruppukkottai, Ramnad District, also would go to show that his Application for permission to appear for the M.S. Degree examination in the University, as a private candidate may be sent through proper channel and the said letter would lead to a conclusion that the petitioner was in service during 1988. 9. Most of the above-referred documents, which are official in nature, would undoubtedly belie the stand taken by the respondent-department that during 1975-1978, the petitioner was not attending duty. Since the case of the respondents has no edifice to stand, in the light of the own admission and version of the respondents that the petitioner had completed 18 years of service erroneously barring the period between 1975-1978, this Court is of the view that rejection of the petitioner’s application dated 05.04.1998 for voluntary retirement on the ground that he did not complete 20 years of service at the relevant time, is unjustified and discriminatory. 10. 10. The above finding of this Court snowballs into the resultant consequence of application of FR-56 of the Rules to the case of the petitioner. Prima facie, the petitioner submitted his Application, dated 05.04.1988, for voluntary retirement with effect from 01.08.1988 stating that he completed 20 years of qualifying service. Seemingly, the memo dated 18.07.1988, came to be issued by the respondent as against the petitioner after 103 days from the date of submission of the Application stating that, in view of pendency of the charge memo, and a civil suit before sub court, Vrithachalam, the request for Voluntary Retirement cannot be considered. Curiously, the litigation was a civil dispute and the case itself was dismissed 14.07.1987 by judgment of the Sub Court, Vrithachalam, and further, the official documents stare at the case of the respondent that the petitioner completed only 18 years of service and he did not join duty between 1975-1978. It follows that, as on the date of application for voluntary retirement, there was no charge memo or departmental enquiry pending against the petitioner, warranting application of proviso to FR-51 (f) of the Rules. In other words, there was no embargo on the part of the Department in positively processing the Application as none of the conditions specified in FR 51 (e) came to be attracted viz., pendency of disciplinary proceedings for imposition of a major penalty - prosecution in a court of law - vigilance enquiry; recovery of dues from DCRG and specific contractual obligation to serve the Government during the crucial period. In the above circumstances, the contention put forth by the learned Additional Government Pleader appearing for the respondents that there were pending memos as against the petitioner for his absence from duty from 21.12.1987, will fall to ground in view of FR-56 of the Rules, for, the Memo dated 08.12.1988 does not disentitle the petitioner to present his application to go on voluntary retirement. To put it otherwise, the Fundamental Rules do not restrict any individual to submit his application for voluntary retirement on the basis of the memo issued to such individual, refusing the leave applied for or any memo, instructing the individual to join duty on or before a particular period as such memorandum cannot be brought within the purview of ‘pending charge’ or ‘pending enquiry’. In this view of the matter, initiation of enquiry by the respondent after 1 ½ year from the date of submission of the petitioner’s application dated 05.04.1988, is wholly unsustainable. 11. As already pointed out, the deeming provision contemplated under FR-56 stipulates that, if the appointing authority shall not issue orders before the date of expiry of notice either accepting voluntary retirement or not, the Government servant shall be deemed to have been retired voluntary from service at the end of the period of notice. Admittedly, in the case on hand, the memo, dated 18.07.1988 rejecting the request of the petitioner to go on voluntary retirement came to be passed after 103 days which is beyond the 90 days’ time as stipulated in the Rules. Under the above circumstance, this Court holds that, in the light of the Rule as referred supra, the request of the petitioner deemed to have been accepted on the expiry of 90 days’ period as no departmental enquiry or proceedings was pending either on the date of application or during the period of notice and therefore, the prayer of the petitioner deserves acceptance. In view of this, the departmental proceedings initiated after 1 ½ years from the date of submission of his Application for voluntary retirement are wholly unsustainable in law, hence, the impugned order is set aside. 12. In fine, the Writ Petition is allowed. In view of the fact that the petitioner attained the age of superannuation in the meantime, the prayer of re-instatement becomes infructuous. In regard to the other part of the prayer for grant of monetary benefits payable on petitioner’s voluntary retirement, the respondents are hereby directed to treat the case of the petitioner as having retired under voluntary retirement scheme in terms of Rule-51 of the Rules and grant him pension and all other attendant benefits by considering his claim for periodical increments for his entire service from 1966, various spells of eligible leave not sanctioned, etc. Considering the aspect that the petition has been pending for more than a decade, the respondents are further directed to settle the entire claims of the petitioner within a period of four months from the date of receipt of copy of this order.