1. Petitioner holding the post of Additional Professor, Department of Microbi ology. SKIMS Soura, had represented to the respondents on 10.10.2008 for his voluntary retirement from service with effect from 21.10.2008, subsequently had applied for one year special leave on 16.10.2008 with effect from 16.11.2008. Both representation and application were pending consideration, in the meantime on 21.10.2008, he sought leave on medical grounds with effect from 21.10.2008 for a period of four weeks. Without waiting for sanction thereof, petitioner left the station and did not return back. 2. When decision on the representation for voluntary retirement was not taken, petitioner applied to the respondents for allowing him to join in the month of June, 2011. He was neither allowed to join nor allowed to do private practice as regarding his private practice notice has been published in daily newspaper Greater Kashmir in its issue dated 22nd May, 2011. Finally petitioner filed instant petition praying therein that the respondents shall be directed to take decision on the voluntary retirement application of the petitioner, further may be commanded to allow the petitioner to continue as Additional Professor in the respondent Institute and to release him pay as well as monetary benefits to which he shall be entitled from October, 2008 till date and also to pay all consequential benefits with 18% interest. 3. The respondents in their reply have admitted the fact vis-a-vis position of the petitioner holding the post of Additional Professor, Department of Microbiol ogy, in the year 2008 and his representation for voluntary retirement and his application for special leave and then medical leave but have added that the proposal for sanction of one year special leave in favour of the petitioner with effect from 16.11.2008 was submitted to the Government on 31.1.2009 the competent authority sought information which was submitted on 25.6.2009 wherein it was recorded that the petitioner had left the station in anticipation of the proper sanction of the said leave and had not left any addressed for the purposes of correspondence, then as required by the Government, whereabouts of the doctor were sought to be located and it surfaced that the petitioner had taken employment in Libya, then for finding whereabouts of the petitioner, the matter was directed to be pursued with Indian Embassy in Tripoli (Libya).
However, in the meantime, petitioner vide letter datad 05.08.2009 intimated that he has taken employment at Jamia A1-Arab Univer sity, Bengazi Libya, accordingly competent authority was apprised about this fact on 25.08.2009. 4. Subsequent to that, petitioner filed an application on 25.09.2009 whereunder he reiterated voluntary retirement, same was not agreed to by the Government and vide memo dated 07.10.2009, disciplinary proceedings were directed to be initiated under J&K Civil Services (Classification, Control and Appeal) Rules, 1956 vis-a-vis unauthorized absence of the petitioner from SKIMS with effect from 16.11.2008 i.e. the date he applied for special leave and Director SKIMS was authorized to initiate disciplinary proceeding. As a consequence thereof, notice has been issued to the petitioner on 08.12.20C9 on his Libyan address asking him to resume his duties at SKIMS and to explain his position. The petitioner was informed that last opportu nity shall be available to him to resume duty but he did not return and vide letter dated 22.4.2010 again pressed for his voluntary retirement which was already declined and conveyed to the petitioner on 20.1.2010. 5. The Committee has been constituted on 24.7.2010, the Convenor of the Committee called the petitioner, then in view of continued summer unrest and civil commotion in Valley, the petitioner had been offered one more opportunity to present himself before the Committee on 15.12.2010 which he did. Then petitioner again approached the authorities for joining on 18.01.2011 but was informed on 25.01.2011 that pending decision by the competent authority, his joining report cannot be entertained. Then finally matter was placed before the Governing Body of the Institute. The matter after discussion seem to have been settled by authorizing Director SKIMS to complete the disciplinary proceedings but same could not be completed in view of status quo order issued by this Court. 6. It was strenuously contended by the learned counsel for the petitioner that the petitioner was subjected to an uncertain situation wherein harassment and humiliation loomed large, petitioner got suffocated and it is in pursuit of this suffocation he applied for voluntary retirement followed by special leave for economic development as well as medical leave. Learned counsel would contend that when the petitioner had applied for voluntary retirement in terms of Article 230 of CSR, his retirement has to be treated from 21.10.2008 as he satisfied all the requirements as envisaged under Article 230.
Learned counsel would contend that when the petitioner had applied for voluntary retirement in terms of Article 230 of CSR, his retirement has to be treated from 21.10.2008 as he satisfied all the requirements as envisaged under Article 230. It was for the competent authority to take decision, for such decision petitioner was not required to wait. Since the authorities have failed to take any decision, it is in view of that position, on his return back from Libya petitioner requested the authorities concerned to permit him to re-join which he was not, instead disciplinary proceedings were initiated which constrained him to file the instant petition seeking direction in the name of respon dents to take decision vis-a-vis voluntary retirement and to direct the respondents to allow him to continue as Additional Professor and pay him all pay benefits from October, 2008 till date. 7. In view of the prayer made and the objections filed, what emerge for consideration is as to whether disciplinary proceedings, as have been initiated and are pending, can be scuttled, answer has to be in negative because petitioner without waiting for the decision about his voluntary retirement, more so without waiting for sanction of his special leave or medical leave, left the Institute, accepted the employment in Libya. 8. The records as have been produced by the learned counsel for the respon dents were thoughtfully perused perusal thereof suggests that various positive steps have been taken which in the long run may be to the advantage of the petitioner. Various measures taken and suggested by the Committee constituted in connection with the enquiry would suggest that the proceedings initiated are neither tainted with any bias nor any mala fide is discernible there from. 9. Learned counsel for the petitioner contended that disciplinary proceedings cannot be initiated against the petitioner because his voluntary retirement has to take effect from the date he has suggested in his application i.e. with effect from 21.10.2008, when it is so there is no question of initiating disciplinary proceedings but this argument runs contrary to the relief as has been sought in the writ petition because petitioner has sought decision on his application for voluntary retirement and then has prayed for his continuance as Additional Professor in the respondent institute and also sought monetary benefits till date.
So in view of the prayer, he cannot be treated to have retired voluntarily with effect from 21.10.2008. Now at present, decision vis-a-vis voluntary retirement cannot be taken by the respondent Institute in view of Proviso to Clause (II) of Article 230 of CSR which reads as under:- "Provided further that the right conferred under this article shall not be available to an officer who has been placed under suspension/or against whom any enquiry or any investigation is pending or is contemplated on any charge of administrative or criminal nature." 10. It shall be quite appropriate, in the facts and circumstances of the case, in-keeping with the cannons of law, justice and service jurisprudence, to allow the respondents to conclude the proceedings as initiated, in the process, when required, petitioner shall also be associated. 11. The petition in the afore-stated circumstances is misconceived, as such, dismissed along with connected CMP reserving right to the petitioner to re-agitate if required after final results of the disciplinary proceedings. 12. Record, as produced, is returned to the learned counsel for the respondents.