Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 3412 (MAD)

S. Kannaki v. Commissioner

2014-09-17

D.HARIPARANTHAMAN

body2014
Judgment : 1. The petitioner joined as a Pharmacist on 04.03.1988, in Ammayappan Panchayat Union Dispensary, Koradacheri Panchayat Union, by the orders of the 1st respondent and her services were regularised with effect from 04.03.1988 by proceedings dated 14.02.1994. The petitioner submitted her application to retire voluntarily under FR 56(3) on 28.09.2012 to the Appointing Authority. The Appointing Authority passed two orders rejecting her application. As per the first order dated 14.12.2012, her application was rejected on the ground that she failed to give three months' notice as contemplated under FR 56(3). The reason given in the second order dated 31.12.2012 for rejecting the petitioner's application for voluntary retirement is that there is an audit objection relating to the period 2007-2008 pending against the petitioner and unless the same is cleared, the petitioner cannot be permitted to retire voluntarily. In such circumstances, the petitioner has filed this writ petition to quash the aforesaid orders and to permit her to retire voluntarily with all benefits. 2. The respondents have filed a counter affidavit refuting the allegations. It is stated in paragraph No. 5 of the counter affidavit that the request of the petitioner to go on voluntary retirement was rejected due to shortage of time for considering the request of the petitioner. Further, in paragraph No. 7 of the counter affidavit, it is stated as hereunder: “7. While so, it was found by the respondents that an audit objection in Para 12 of the year 2007-2008 is pending against the petitioner. The gist of the audit objection is as follows: “The individual was absent for duty from 12.07.1994 to 18.04.1999 without any information. However, her period of absence for duty was regularized by the Collector, Tiruvarur District, as follows: 12.07.1994 to 21.07.1994 - 10 Days Earned Leave 22.07.1994 to 20.08.1994 - 30 Days Unearned Leave on Medical Certificate 21.08.1994 to 22.08.1994 - 2 Days Earned Leave 23.08.1994 to 20.11.1994 - 90 Days Unearned Leave on private Affairs 21.11.1994 to 18.04.1999 - 1610 Days leave on Loss of pay.”” Hence, on the above two grounds, the respondents sought the dismissal of the writ petition. 3. Heard both sides. 4. It is not disputed that the petitioner made an application for voluntary retirement on 28.09.2012 to the Appointing Authority. But, the application was rejected by the 1st respondent by two orders dated 14.12.2012 and 31.12.2012. 3. Heard both sides. 4. It is not disputed that the petitioner made an application for voluntary retirement on 28.09.2012 to the Appointing Authority. But, the application was rejected by the 1st respondent by two orders dated 14.12.2012 and 31.12.2012. The reason stated in the first order dated 14.12.2012 for rejecting the petitioner's request is extracted hereunder: (“Tamil”) The petitioner understood that she failed to give three months' notice as contemplated under FR 56(3)(c). But, it is not so. The Appointing Authority has stated that there is no time to consider the request of the petitioner for Voluntary Retirement. It is surprising that such a reason has been given. At this juncture, it would be appropriate to extract FR 56 (3)(a), (b), (c), (e) and (f): FR 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. (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) ... (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) ... (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. 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.” While FR 56(3)(a) contemplates that the Government servant shall give three months' notice to the Appointing Authority, FR 56(3)(f) mandates that the Appointing Authority has to issue orders before the expiry of three months' period, as otherwise, the Government servant concerned shall be deemed to have retired from service at the end of the period of notice, provided the Government Servant is neither under suspension nor any disciplinary or criminal action is pending, When such is the mandate imposed under the Rules, it is surprising that the Appointing Authority has stated that he has no time to consider the application of the petitioner for voluntary retirement and therefore, the same is rejected. In my opinion, the reason based on which the petitioner's application is rejected is impermissible, arbitrary and unacceptable and as per FR 56(3)(f), the petitioner is deemed to have retired voluntarily on completion of three months' period. Hence, the first order dated 14.12.2012 is liable to be set aside. 5. The 1st respondent, subsequently, has passed the second order dated 31.12.2012 rejecting the petitioner's application for voluntary retirement and the same is extracted hereunder: (“Tamil”) In the second order, extracted above, the rejection of the petitioner's application is based on pendency of an audit objection, relating to the year 2007-2008, as against the petitioner. I do not know as to why no action was taken, based on the same, for four years. The audit objection, as could be seen from paragraph No.7 of the counter affidavit, which has been extracted supra, is that the petitioner was absent for the period mentioned therein. However, the said period of absence was regularised by the District Collector. Further, the order of the District Collector regularising the period of absence of the petitioner has attained finality and the same has not been revised. However, the said period of absence was regularised by the District Collector. Further, the order of the District Collector regularising the period of absence of the petitioner has attained finality and the same has not been revised. Hence, the said ground cannot be relied upon by the respondents to reject the request of the petitioner for voluntary retirement. Further, as on date, there is no disciplinary proceeding pending against the petitioner. 6. At this juncture, it is relevant to take note of FR 56(3)(e) and FR 56(3)(f). If any of the conditions specified therein are available, then the petitioner's request can be denied. In the absence of the same, the rejection of the petitoner's request is not justified. A learned Single Judge of this Court, in the order dated 16.04.2007 in W.P. No. 9880 of 2007 (Dr. Annabelle Rajaseharan V. The Secretary to Govt., Health and Family Welfare Department and Others) has held that if none of the conditions stipulated in clauses (e) of FR 56 (3) are available for withholding the request for voluntary retirement, the authority is not correct in refusing to accept the request. I also had an occasion to consider a similar issue in W.P. No. 7038 of 2013 and the said writ petition was allowed by order dated 24.06.2014. 7. For all the aforesaid reasons, the impugned orders are quashed and the writ petition is allowed. The respondents are directed to pass appropriate orders permitting the petitioner to retire voluntarily with effect from 31.12.2012 as sought by her and a further direction is issued to the respondents to settle the terminal benefits, as expeditiously as possible, not later than, three months from the date of receipt of a copy of this order. No costs. Connected M.P. is closed.