JUDGMENT : B.P. DHARMADHIKARI, J. Heard Shri P.D. Meghe, learned counsel for the petitioner, Shri D.M. Kakani, learned counsel for respondent Nos. 1 to 3 and Shri A.A. Madiwale, learned AGP for respondent No. 4. 2. The petitioner has approached this Court, challenging a communication dated 12.04.2016, by which his notice for Voluntary Retirement has been rejected on the ground that if the period from 19.03.2012 to 23.02.2014 of one year and 11 months, during which he was absent without permission, is excluded, till 03.04.2016, he completes total service of 18 years and 7 months and as such, does not satisfy the requirement of putting in qualifying service of 20 years as per Voluntary Retirement Scheme (VRS). 3. Shri Meghe, learned counsel for the petitioner submits that the petitioner gave application for proceeding on VRS on 04.01.2016 and it was not rejected within a period of 90 days. It is, therefore, deemed to have been granted on 04.04.2016. Accordingly, on that day, the petitioner has proceeded on voluntary retirement. 4. Without prejudice, he points out that for processing said application, his employer needed necessary clearance and certificate that no Departmental Enquiry is pending, which was also issued by the Competent Authority on 29.03.2016. However, after his retirement, by way of after thought, two orders have been issued. By order dated 03.12.2016, the period of absence mentioned supra has been treated as 'dies non' and by the other order dated 17.12.2016, two future increments of the petitioner have been withheld for two years without cumulative effect. 5. Shri Meghe, learned counsel submits that punishment of withholding increments is in relation to charge sheet dated 08.09.2014. The petitioner had submitted reply thereto immediately and thereafter did not receive any intimation about the Departmental Enquiry. No dates of hearing were fixed and as such, the petitioner was under the impression that the departmental inquiry has been dropped. Shri Meghe, learned counsel, therefore, seeks a direction to his employer to treat the petitioner as retired on 04.04.2016 and to release in his favour, necessary consequential benefits. 6. Shri Kakani, learned counsel is relying upon the reply affidavit. He points out that the service of charge sheet dated 08.09.2014 upon the petitioner or submission of reply thereto on 27.12.2014 is not in dispute. 6. Shri Kakani, learned counsel is relying upon the reply affidavit. He points out that the service of charge sheet dated 08.09.2014 upon the petitioner or submission of reply thereto on 27.12.2014 is not in dispute. In this situation, when there was no order passed by the employer, dropping Departmental Enquiry, the alleged impression of the petitioner is erroneous and misconceived. He relies upon the letter dated 11.03.2016 sent by the Chief Engineer to the Establishment Officer (Vigilance) inquiring about the Departmental Enquiry and soliciting no inquiry certificate. The copy of that communication is sent to the petitioner also. 7. Shri Kakani, learned counsel heavily relies upon the insistence therein, though no inquiry certificate was received, to examine the status of pending inquiry, and said letter was sent with a request to communicate the correct position. He, therefore, contends that the petitioner was even on 04.04.2016 aware that inquiry against him is not dropped. As office procedure took some time, no express reply could be given to the petitioner and the petitioner unilaterally got himself relieved on 04.04.2016. He was not relieved by any responsible officer of the respondents, as his VRS request was not accepted. He further contends that in Departmental Inquiry, appropriate punishment order has been passed on 17.12.2016 and two increments have been withheld. The petitioner also moved an application for regularizing his absence on 20.06.2016 and consequent to it, on 03.12.2016, an order treating said period as 'dies non' has been passed. He contends that in this situation, the presumption of acceptance of VRS, in view of non communication of decision, cannot be attracted. 8. After hearing respective counsel and perusal of records, we find that the petitioner was very much aware of the fact that the period of his absence from 19.03.2012 to 23.02.2014 was not regularized. He, therefore, on 20.06.2016 moved an application and sought regularization. In this application, he has pointed out that this issue of regularization was pending since last more than 2½ years. 9. The communication dated 11.03.2016 sent by the Chief Engineer to Establishment Officer (Vigilance) mentioned supra again shows knowledge to the petitioner that clarification on status of pending Departmental Inquiry was expressly sought by the Chief Engineer. The petitioner, therefore, on 04.04.2016 was very much aware that the Departmental Enquiry against him for alleged absence between 19.03.2012 to 23.02.2014 was very much pending. 10. The petitioner, therefore, on 04.04.2016 was very much aware that the Departmental Enquiry against him for alleged absence between 19.03.2012 to 23.02.2014 was very much pending. 10. It is no doubt true that in a given case, employer may forget or forgive such lapse and grant VRS. But here, when Departmental Inquiry was pending, period of absence was not regularized and the petitioner himself was aware that he was not completing the requisite period of 20 years of qualifying service, we, therefore, find that the contention of deemed acceptance of request for VRS is misconceived. 11. The Chief Administrative Officer of the respondents has on 12.04.2016 sent a communication to the Chief Engineer, pointing out that minus the above period, the petitioner puts in only 18 years and 7 months of service and, therefore, does not qualify for VRS. A perusal of said communication shows that the petitioner was absent during the said period without permission and recommendation was made on 27.01.2016 by the office of the Chief Engineer to regularize that absence as extra ordinary leave. The Chief Administrative Officer has pointed out that the said period could not have been accepted as period of qualifying service while computing pension. 12. We find that thereafter on 20.06.2016, the petitioner sought regularization of his period of absence. The first order in this respect is issued on 03.12.2016 and in that order, without mention of pending Departmental Inquiry or any inquiry report, Member Secretary has directed to treat said period as dies non and break in service. Thereafter on 17.12.2016, the Superintending Engineer has passed an order and in that order, he mentioned report of Inquiry Officer. The report of Enquiry Officer appears to be dated 04.06.2016. For the reasons recorded by the Superintending Engineer, punishment of withholding two increments, after said period, for a period of two years without cumulative effect, has been imposed upon the petitioner. 13. The respondents are not in a position to point out any provision in Service Rules which empowers them to treat said period as dies non. The question is, if the period is wiped out totally from services of the petitioner, whether it constitutes punishment ? We need not go into that aspect here, as admittedly for the very same period of absence, the Superintending Engineer has imposed punishment of withholding two increments. The question is, if the period is wiped out totally from services of the petitioner, whether it constitutes punishment ? We need not go into that aspect here, as admittedly for the very same period of absence, the Superintending Engineer has imposed punishment of withholding two increments. This order of punishment along with the order dated 03.12.2016 has been questioned before this Court. 14. The record does not show that after the petitioner submitted his reply to charge sheet, any hearing has been conducted before the Enquiry Officer and the petitioner was given an opportunity by the Enquiry Officer. The respondents have also not demonstrated that the adverse report of the Enquiry Officer was forwarded to the petitioner and he was given an opportunity to meet the findings therein. This act of not forwarding the report militates with the observations of the Hon'ble Apex Court in the case of Union of India & Ors. vs. Mohd. Ramzan Khan, reported at AIR 1991 SC 471 and in Managing Director, Electronics Corporation of India Limited vs. Karunakar & Ors., reported at (1993) 4 SCC 727 . 15. In this situation, though we cannot find fault with the action of the respondents in refusing to accept his request for voluntary retirement, later two orders i.e. dated 03.12.2016 and 17.12.2016 cannot be upheld. We, therefore, quash and set aside those orders. 16. As the petitioner has now received a copy of inquiry report with submissions, we grant him leave to submit his say before the Disciplinary Authority in relation to findings recorded against him. 17. It is open to the Disciplinary Authority to grant him an opportunity to cross examine the witnesses, if any, lead evidence in, defence. After completing inquiry in accordance with law, a fresh order in this respect shall be passed by the Enquiry Officer. This exercise shall be completed within a period of four months. 18. The decision regarding treatment to be accorded to the period of absence of the petitioner from 04.04.2016 onwards shall be taken by the Competent Authority thereafter within a period of next three months. The petitioner states that he would report for duties on 01.08.2017. The period mentioned supra shall commence from the said date. 19. Accordingly, we partly allow the present writ petition and dispose it of. However, in the facts and circumstances of the case, there shall be no order as to costs.