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2012 DIGILAW 2600 (MAD)

T. Ramachandran v. State of Tamil Nadu

2012-06-22

VINOD K.SHARMA

body2012
JUDGMENT:- 1. The petitioner has approached this Court with the prayer for issuance of a writ in the nature of mandamus, directing the respondents to pay to the petitioner gratuity, general provident fund, Pension and all terminal benefits in pursuance to his retirement from service under FR 56(3). 2. The petitioner was working as Manager (Material) in District Industries Centre, Nagapattinam. The petitioner issued a notice under Rule 56(3) of Fundamental Rules seeking voluntary retirement. The notice was sent through registered post on 18.01.2004, which was received by the second respondent on 21.01.2004. 3. The submission of the petitioner is that till expiry of notice period, no reply was received either accepting or rejecting the request of the petitioner for voluntary retirement. The petitioner therefore claims that as per F.R. 56(3) the petitioner is deemed to have retired from service and thus, relationship of Master and servant had come to an end. 4. The submission of the petitioner is that in view of the deemed acceptance of his voluntary retirement, it was not open to the respondents either to hold departmental enquiry or punish the petitioner. 5. The learned counsel for the petitioner vehemently contends that in view of the settled law that departmental proceedings against a retired employee cannot be initiated or order of punishment passed, unless specific order is passed retaining the petitioner in service at the time of superannuation. 6. However, on consideration, I find no force in the writ petition. It is not the case of retirement on attaining superannuation for which order of retention in service was required to be passed, whereas the petitioner issued notice seeking voluntary retirement from service. 7. The contention of the learned counsel for the petitioner that under F.R. 56(3) (f) the petitioner is deemed to have retired also cannot be accepted in view of proviso to F.R. 56(1) & (3) which reads as under: "56. (1) Retirement on Superannuation.— (a) Every Government servant in the superior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. (1) Retirement on Superannuation.— (a) Every Government servant in the superior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. He shall not be retained in service after that age except with the sanction of the Government on public grounds, which must be recorded in writing but he shall not be retained after the age of sixty years except in very special circumstances: Provided that this clause shall not apply to Government servants who are treated as in superior service for the purpose of these rules but as in the Tamil Nadu Basic Service for the purpose of pension. Such Government servants as well as all basic servants shall retire on attaining the age of sixty years: Provided further that on and from the 1st January 1993, a District Judge, Chief Judicial Magistrate, Sub-ordinate Judge or District Munsif-cum-Judicial Magistrate, who, in the opinion of the High Court, Madras, has potential for continued useful service beyond the age of fifty-eight years, shall retire from service on attaining the age of sixty years. [G.O. Ms. No. 365, Personnel and Administrative Reforms (FR.IV) Department, dated 4th October 1996—with effect from 1st January 1993.] Explanation I.—When a Government servant is required to retire, revert or cease to be on leave on attaining a specific age, the day on which he attains that age is reckoned as a non-working day and the Government servant shall retire, revert or cease to be on leave, with effect on and from that day. Explanation II.—The grant under rule 86 or corresponding other rules of leave extending beyond the date on which a Government servant must retire or beyond the date upto which a Government servant has been permitted to remain in service shall not be treated as sanctioning an extension of service for the purpose of Pensionary or Contributory Provident Fund benefits or retention of lien. The Government servant shall, for purpose of pensionary benefits, be deemed to have retired from service on the date of retirement or on the expiry of the extension of service, if any, and shall become eligible to all pensionary benefits from the date of retirement or from the day following the date of termination of extension of service, as the case may be. (b) Omitted. (b) Omitted. (c) Notwithstanding anything contained in clause (a), a Government servant who is under (i) on a charge of misconduct; or (ii) against whom an enquiry into grave charges of criminal misconduct or allegations of criminal misconduct, is pending; or suspension, (iii) against whom an enquiry into grave charges is contemplated or is pending; or (iv) against whom a complaint of criminal offence is under investigation or trial. shall not be permitted by the *appointing authority to retire on his reaching the date of retirement, but shall be retained in service until the enquiry into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges or disciplinary proceeding taken under rule 17 (c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil Nadu Police Sub-ordinate service (Discipline and Appeal) Rules, as the case may be, in respect of item (iv) above is concluded and a final order passed thereon by the competent authority or by any higher authority. (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. Explanation (i).—The term “appointing authority” means the authority which has power to make substantive appointment to the post or service from which the Government servant wants to retire and includes any higher authority to such appointing authority. Explanation (ii).—The term “qualifying service” means permanent or officiating service (including temporary service under emergency provisions) rendered in a post included in a pensionable establishment without interruption. (with effect from 14th February 1997.) [G.O. Ms. No. 39, Personnel & Administrative Reforms (FR. III) Department, dated 14th February, 1997] (b) The period of three months notice shall be reckoned from the date of receipt of notice by the appointing authority. (with effect from 14th February 1997.) [G.O. Ms. No. 39, Personnel & Administrative Reforms (FR. III) Department, dated 14th February, 1997] (b) The period of three months notice shall be reckoned from the date of receipt of notice by the appointing authority. (c) The three months notice may be given before the Government servant attains the qualifying age or the qualifying service, as the case may be, provided that the retirement takes place after attaining the specified age or completing the required number of years of qualifying service, as the case may be. (d) (i)A Government servant including a Government servant in the Tamil Nadu Basic Service retiring voluntarily shall be given a weightage not exceeding five years, subject to the condition that the total qualifying service rendered by such Government servant, including weightage, does not in any case exceed Thirty three years of qualifying service and it does not take him beyond the date of superannuation, as the case may be. The weightage shall be calculated as specified in the Table below:- THE TABLE of pension and gratuity only, and it shall not entitle a Government servant retiring voluntarily to any notional fixation of pay for purposes of calculating the pension and gratuity. The pension shall be determined based on the 50% of average emoluments drawn during the last ten months of service rendered, or, 50% of pay last drawn, plus dearness pay, if any, admissible from time to time, by the Government servants, whichever is higher. The pension shall be determined based on the 50% of average emoluments drawn during the last ten months of service rendered, or, 50% of pay last drawn, plus dearness pay, if any, admissible from time to time, by the Government servants, whichever is higher. (G.O.Ms.No.282, Personnel & Administrative Reforms (FR.IV) Department, dated 26th November 1998 – w.e.f.1.7.1996) (e) notice of voluntary retirement given by a Government servant shall be accepted by the appointing authority, subject to the following conditions being satisfied namely:- (i) that no disciplinary proceedings are contemplated or pending against the Government servant concerned for the imposition of a major penalty; (ii) that no prosecution is contemplated or pending in a Court of Law against the Government servant concerned; (iii) that a report from the Director of Vigilance and Anti-corruption has been obtained to the effect that no enquiry is contemplated or pending against the Government servant concerned; (iv) that no dues which cannot be recovered from his Death-cum-Retirement Gratuity are pending to be recovered from the Government servant concerned; and (v) that there is no contractual obligation to serve the Government during the period in which the Government servant concerned seeks to retire voluntarily. (f) The appointing authority shall issue orders before the date of expiry of notice either accepting the voluntary retirement or not. Otherwise, the Government servant shall be deemed to have been retired voluntary from service at the end of the period of notice: Provided that where a Government servant under suspension or against whom disciplinary or criminal action is pending, seeks to retire voluntarily, specific orders of the appointing authority for such voluntary retirement is necessary. The appointing authority may with-hold the permission sought for by the Government servant, if any of the conditions specified in clause (e) are not satisfied. (g) The Government servant may withdraw the notice of voluntary retirement or withdraw the voluntary retirement after acceptance, as the case may be, subsequently with the approval of the appointing authority, before the expiry of the period of notice." 8. The reading of the Rule 56(1) & (3) makes it clear that there cannot be any automatic deemed retirement in case of employee who is under suspension or against whom disciplinary or criminal proceeding is pending. In that situation, a specific order is necessary. 9. The reading of the Rule 56(1) & (3) makes it clear that there cannot be any automatic deemed retirement in case of employee who is under suspension or against whom disciplinary or criminal proceeding is pending. In that situation, a specific order is necessary. 9. Admittedly, the petitioner was facing departmental enquiry at the time of application of voluntary retirement, therefore, the petitioner cannot rely F.R. 56(3) (f) to claim deemed retirement. 10. For the reasons stated hereinabove, there is no merit in this writ petition. "Dismissed" Connected miscellaneous petition is closed. No costs.