JUDGMENT: 1. Heard Sri G. Vijay Kumar, learned counsel for the petitioner. None appeared for the respondents. 2. The petitioner has filed this writ petition under Article 226 of the Constitution of India for the following reliefs: “this Hon’ble Court may be pleased to issue a writ or direction or any other appropriate order, more particularly one in the nature of Mandamus, declaring the impugned orders of the 3rd respondent- Divisional Order No.119 of 2010 Lr.No.G/XP.227/153/11/GRP/2009 dated 10.12.2010 imposing a penalty of removal the orders of the 2nd respondent No.65/2011 dated 03.06.2011 rejecting the appeal of the petitioner as bad in law, arbitrary, illegal and contrary to the rules on the subject matter and shockingly disproportionate to the gravity of misconduct and consequently set aside the same with a direction to the respondents to reconsider the case of the petitioner for imposing a lower penalty such as compulsory retirement in the interest of justice.” 3. Sri G. Vijay Kumar, learned counsel for the petitioner submits that the petitioner joined as constable in Railway Protection Force (for short, “R.P.F”) on probation on 14.12.1995 at B. Company, Secunderabad Division after undergoing the requisite training at RPF Training Centre, Moulali, in the scale of pay of Rs.825-1200. On completion of 12 years of service he was accorded first up-gradation under Assured Career Progress (ACP) Scheme and was granted the scale of Head Constable in the year 2008. He worked as constable at Guntakal during the period of 2000-2005 and at Dharmavaram (outpost), Guntakal Division between 2005-2009. All over his service carrier he worked with absolute integrity, honesty and devotion to duty without any dereliction of duty. The petitioner was deputed to undergo Refresher Course for four weeks at Training Centre, Moulali on 08.02.2009. While undergoing such training, the petitioner received message about serious illness of his mother-in-law. He applied for casual leave on 14.02.2009 and 15.02.2009, and after reaching there, he received another information that simultaneously his father also fell ill. Consequently, he sent a telegram message to the Principal, Training Center, Moulali for extension of ten days leave from 16.02.2009 to 25.02.2009 and on 16.02.2009 itself he submitted an application seeking extension of ten days leave in response to which the Principal of the Training Center vide letter dated 17.02.2009 informed that the extension was not permitted. Consequently, he sent a telegram message to the Principal, Training Center, Moulali for extension of ten days leave from 16.02.2009 to 25.02.2009 and on 16.02.2009 itself he submitted an application seeking extension of ten days leave in response to which the Principal of the Training Center vide letter dated 17.02.2009 informed that the extension was not permitted. The petitioner, being the sole person upon whom his father and mother-in-law depended, in the compelling circumstances requested for voluntary retirement from service/resignation vide telegram dated 25.02.2009 and on 26.02.2009 he submitted a letter to all the respondents confirming the telegram. 4. It is further submitted that the 3rd respondent vide letter No.G/XP.510/GRK/Con-551/2009 dated 12.03.2009 directed the petitioner to report back to the duty within three days mentioning that he was un-authorisedly absent from Training Centre w.e.f 16.02.2009, providing further that failing the same, the disciplinary proceedings would be initiated. On receipt of the above letter, which was served again on 20.03.2009, the petitioner requested the authorities to accept his voluntary retirement/resignation, but he was issued another letter No.G/XP.510/GRK/Con-551/2009 dated 27.05.2009 by the 3rd respondent with the same allegations as of letter dated 12.03.2009 described as ultimatum-2, to which the petitioner again represented the 3rd respondent on 31.05.2009. The respondents without considering the petitioner’s representations, issued a charge memo vide Memo No.G/XP.227/153/11/GRK/2009 dated 05.12.2009 on the following charges: “Charge:-I: Serious misconduct and gross dereliction of duty in that Constable G. Ramakrishna, No.551 working at RPF Out Post/DMM, while he was undergoing 04 weeks Refresher course training room 09.02.2009 to 07.03.2009 at Training Center/Moula-Ali was permitted to avail 02 days casual leave from 14.02.2009 to 15.02.2009. He was due to resume his training on 16.02.2009, but he did not turn-up for training and remained absent unauthorisedly. His name was struck off from the Refresher course batch No.117 at TC/MLY by Principal/RPF/TC-MLY. Being a member of the Armed Force, he behaved in a most in disciplined and irresponsible manner and disobeyed the orders of his superiors and without completing the Refresher course training at TC/MLY he remained absent. By the above said acts he has violated the Rule No.1462(i)(iii), 146.3(i) & 147(vi) of RPF Rules, 1987 and also Railway Service Conduct Rules 3(1), (i),(ii) & (iii) of 1966. Hence, the charge. By the above said acts he has violated the Rule No.1462(i)(iii), 146.3(i) & 147(vi) of RPF Rules, 1987 and also Railway Service Conduct Rules 3(1), (i),(ii) & (iii) of 1966. Hence, the charge. Charge No.II:- Serious misconduct and gross dereliction of duty in that Constable G. Ramakrishna, No.551 working at RPF Out Post/DMM, is remaining absent unauthorisedly from 16.02.2009 without any authority in continuation of 02 days Casual Leave from 14.02.2009 to 15.02.2009 permitted by principal/TC/MLY. Though he has acknowledged the notices sent by this office on 17.03.2009 and 27.05.2009, directing him to join for duty immediately he did not join duty and remaining absent un-authorisedly from 16.02.2009 to till date continuously. Being a member of the Armed Force, he behave in a most indisciplined and irresponsible manner and remained absent unauthorisedly. By the above said act he has violated the Rule No.146.2(i), (iii) and 147(vi) of RPF Rules, 1987 and also Railway service conduct rules 3(1)(i),(ii) &(iii) of 1966. Hence, the charge.” 5. It is further submitted that on 07.12.2009, the preliminary enquiry was conducted in which the petitioner attended with his old aged father and on the next date he submitted a representation to the 3rd respondent seeking resignation and also made oral request to discharge him from duties on voluntary basis. However, the regular enquiry was conducted on 22.12.2009 and thereafter various dates for enquiry were fixed which the petitioner could not attend. On some dates enquiry could not be held due to different reasons. The petitioner was served with the enquiry officer’s report vide letter No.G/XP.227/153/11/GRK/2009 dated 12.10.2010 and finally the 3rd respondent imposed the penalty of removal from service with immediate effect vide order No.119 of 2010 as impugned in the writ petition. The petitioner’s departmental appeal was also rejected. 6. Learned counsel for the petitioner submitted that even before the issuance of the charge memo the petitioner had submitted telegram/letters, under the compelling circumstances of the sickness of his father and the mother-in-law, requesting for voluntary retirement and if not permissible to accept his resignation and in view thereof, the respondents ought not to have initiated the disciplinary proceedings and ought not to have passed the impugned order but ought to have first considered the petitioner’s request for voluntary retirement or resignation. 7. 7. Sri G. Vijay Kumar, learned counsel for the petitioner submitted that the disciplinary proceedings were not pending at the time the petitioner submitted the application/representation for voluntary retirement or/and resignation as the charge memo was issued at later point of time. He further submitted that as per Rule 67 of the Railways Services (Pension) Rules, 1973, if the appointing authority does not refuse to grant permission for retirement before expiry of the notice period, the retirement shall become effective from the date of expiry of the notice period. He submits that the representation was given firstly on 26.02.2009 specifically stating that same may be treated as three months notice but no orders were passed within the notice period. 8. Learned counsel for the petitioner next submitted that for the charges of absence from duty un-authorisedly or over staying the leave period, penalty of removal is highly disproportionate, placing reliance in the case of Chairman cum Managing Director Coal India Limited and another vs. Mukul Kumar Choudhari and others, CDJ 2009 SC 1698. 9. None appeared for the respondents to argue the matter. The court has gone through the contents of the counter affidavit. 10. The stand of the respondents in the counter affidavit is that to undergo refresher course, atleast once in five years, is mandatory under Rule 66 of the Railway Protection Force Rules, 1987 (in short “RPF Rules”). The petitioner was asked to resume training from 16.02.2009, after having availed two days leave from 14.02.2009 to 15.02.2009, but he did not resume the training and remained absent un-authorisedly. 11. With respect to the petitioner’s case of making request for voluntary retirement due to his domestic reasons or for resignation, the respondents in paras 10 and 12 of the counter affidavit have admitted that such request was made but their stand is that as per rules 83 and 84 of the RPF Rules, such request could not be entertained, once the proposed action under the rules was pending, against a member of force and consequently their stand is that the petitioner’s request for voluntary retirement or resignation could not be entertained and the disciplinary authority issued the charge memo. 12. The respondents have taken a further stand that the Railway Protection Force is an armed force and strict discipline has to be maintained. Desertion from duty or training as per the rules, deserve deterrent punishment. 12. The respondents have taken a further stand that the Railway Protection Force is an armed force and strict discipline has to be maintained. Desertion from duty or training as per the rules, deserve deterrent punishment. The petitioner did not dispute his unauthorized absence for the charged period and as such the order of removal as also the appellate order passed after giving opportunity of hearing, are justified and do not require any judicial review by this Court. 13. I have considered the submissions advanced by the learned counsel for the petitioner and perused the material on record. 14. In the counter affidavit it is stated by the respondents that once the proposed action under the rules are pending against any member of force, request for voluntary retirement or resignation cannot be entertained. It has, however, not been disclosed as to on what date the proposed action of departmental proceeding against the petitioner was initiated. The submission of Sri G. Vijay Kumar is that the departmental proceeding was not pending at the time request for voluntary retirement or/and resignation was made. 15. The charge memo is dated 05.12.2009. The petitioner’s telegram and representation seeking voluntary retirement or/and for acceptance of resignation are dated 25.02.2009 and 26.02.2009 respectively. The representation dated 26.02.2009 specifically stated that the same may be treated as a three months notice. 16. It is well settled in law that the departmental proceedings are initiated by the charge memo. The date of initiation of the departmental proceedings cannot be prior to the date of the charge memo, in the absence of any rule to the contrary. Any rule to the contrary, if any, has not been referred in the counter affidavit. In State of Madhya Pradesh vs Onkr Chand Sharma, (2001) 9 SCC 171 , the Hon’ble Apex Court held that the disciplinary proceedings can be held to have been initiated on the day the charge sheet had been prepared and signed by the competent authority. 17. In view of the above undisputed facts, and the settled law the stand taken by the respondents in their counter affidavit, that the petitioner’s request for voluntary retirement or/and resignation could not be entertained once the action was proposed against the petitioner, cannot be accepted. 18. It, now, necessarily requires consideration as to what are the consequences of non-consideration of the petitioner’s request for voluntary retirement or/and acceptance of resignation. 19. 18. It, now, necessarily requires consideration as to what are the consequences of non-consideration of the petitioner’s request for voluntary retirement or/and acceptance of resignation. 19. Rule 83 of RPF Rules provides for the circumstances under which an enrolled member of the Force may resign. It reads as under:- “83. Circumstances under which an enrolled member of the Force may resign: 83.1 Resignation of any enrolled member may be accepted by the officer empowered to appoint him. 83.2 An enrolled member who intends to resign from service shall give to the appointing authority a three months notice in writing to that effect and shall not be permitted to withdraw himself from duty before formal acceptance of the resignation: Provided that the appointing authority may at its discretion permit an enrolled member of the Force to withdraw himself from duty on his crediting to the Government three months’ pay in lieu of notice. 83.3 No enrolled member whose resignation has been accepted by the appointing authority shall be permitted to withdraw from duty until he has fully discharged all debts due from him to the Government or to any Railway Protection Force fund and has surrendered his certificate of appointment, arms, accoutrements, uniform and all other Government property in his possession and has also rendered a complete account of all government money and property for which he is responsible.” 20. A bare reading of Rule 83 with rules 83.1, 83.2, 83.3 of the Rules 1987 makes it evident that any enrolled member in the Force may resign by giving a three months notice to the appointing authority in writing, to the effect that he intends to retire. The resignation is subject to acceptance by the officer empowered to appoint such enrolled member. The appointing authority however may at its discretion permit the enrolled member of the Force to withdraw from duty on his crediting to the Government three months pay in lieu of notice. Therefore, once the application/representation seeking acceptance of resignation was given by the petitioner, mentioning that the same may be treated as three months notice, the appointing authority was required to take decision with respect to acceptance and communicate the same to the petitioner. This was not done. However, the resignation, is subject to acceptance and in the absence of acceptance it did not become effective. The petitioner therefore cannot be said to have resigned for the force. This was not done. However, the resignation, is subject to acceptance and in the absence of acceptance it did not become effective. The petitioner therefore cannot be said to have resigned for the force. 21. The petitioner had also requested vide the same representation dated 26.02.2009 to permit him to retire voluntarily under the relevant rules. 22. Rule 67 of the Railway Services (Pension) Rules, 1993 relates to retirement on completion of 20 years qualifying service. It provides as under:- “67. Retirement on completion of 20 years qualifying service – (1) At any time after a railway servant has completed twenty years’ qualifying service, he may, by giving notice of not less than three months in writing to appointing authority retire from service: Provided that this sub-rule shall not apply to a railway servant including Scientists or technical expert who is – (i) on assignment under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes; (ii) posted abroad in foreign based offices of the Ministries or Departments; (iii) on a specific contract assignment to a foreign Government unless, after having been transferred to India, he has resumed the charge of a post in India and served for a period of not less than one year. (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the said period. (3) (a) A railway servant referred to in sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the railway servant shall not apply for commutation of a part of his pension before the expiry of their period of notice of three months. (4) A railway servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority: Provided that the request for withdrawal shall be made before the intended date of his retirement. (4) A railway servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority: Provided that the request for withdrawal shall be made before the intended date of his retirement. (5) Omitted(Authority: Railway Board’s letter No. 2011/F (E)III/1(1) dated 23.09.13) (6) This rule shall not apply to a railway servant who retires from railway service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. Explanation – For the purpose of this rule, “appointing authority” means the authority which is competent to make appointments to the service or post from which the railway servant seeks voluntary retirement.” 23. A bare reading of Rule 67(1) of the Rules, 1993 makes it evident that at any time after an employee of Railway Protection Force has completed 20 years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority retire from service. The proviso to Sub rule (1) of rule 67 is not attracted here, as it is not THE case of the parties that the petitioner falls within any of the categories under Clauses (i), (ii) and (iii), but he is only a constable in the Railway Protection Force. The notice of the voluntary retirement given under sub rule (1) requires acceptance by the appointing authority under sub rule (2) of rule 67. However, the proviso to sub rule (2) further provides that where the appointing authority does not refuse to accord the permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the period specified in the notice. 24. In State of U.P vs. Achal Singha, (2018) 17 SCC 578 , the Hon’ble Apex Court held that whether voluntary retirement is automatic or an order is required to be passed would depend upon the phraseology used in a particular rule under which retirement is to be ordered or voluntary retirement is sought. 25. 24. In State of U.P vs. Achal Singha, (2018) 17 SCC 578 , the Hon’ble Apex Court held that whether voluntary retirement is automatic or an order is required to be passed would depend upon the phraseology used in a particular rule under which retirement is to be ordered or voluntary retirement is sought. 25. It is clear from reading of rule 67 and the phraseology used that if the appointing authority does not refuse to accord permission for voluntary retirement, before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the notice period. The consequence as given in the proviso to rule 67(2) is automatic and it follows, if the request for voluntary retirement made by way of notice of three months, is not refused. In other words, if no order is passed on the notice of retirement by the appointing authority, either accepting or rejecting the notice, then the consequence that the enrolled member of the force, shall stand retired voluntarily, on and from the date of expiry of the notice period of three months, shall follow under the law of its own. 26. The petitioner had completed 20 years of qualifying service and had submitted representation/application dated 26.02.2009 seeking voluntary retirement, specifically stating that the same may be treated as three months notice. No order was passed by the appointing authority on such application, refusing to grant permission to retire. The case of the respondents in the counter affidavit is only that it did not require any decision and it is not their case that the request of voluntary retirement was refused within the notice period. 27. In Union of India and others vs. Sayed Muzaffar Mir, 1995 Supp (1) Supreme Court Cases 76, Articles 1801 (d) and 1802 (b) of the Indian Railways Establishment Code (in short ‘IREC’) were under consideration. Article 1802 (b) of IREC specifically provided for voluntary retirement by giving notice of not less than three months. If the competent authority required the railway servant under suspension to continue in service, beyond the date of his voluntary retirement and not to be permitted to retire from service, the same could be done by passing an order as provided by Article 1801 (d) of IREC. If the competent authority required the railway servant under suspension to continue in service, beyond the date of his voluntary retirement and not to be permitted to retire from service, the same could be done by passing an order as provided by Article 1801 (d) of IREC. In view of those provisions, the Hon’ble Apex court held that when no order was passed despite such right by the competent authority, the employee retired on expiry of the notice period and the order of removal passed after the expiry of the notice period was not-est in the eyes of law. 28. Applying the ratio of the judgment in the case of Sayed Muzaffar Mir (supra), in the present case also the appointing authority not having refused the permission to retire voluntarily within the notice period to the petitioner, the petitioner retired on expiry of the notice period. The initiation of the departmental proceedings by charge memo dated 05.12.2009 as also passing of the order of removal pursuant to those proceedings after the expiry of the notice period is non-est in the eyes of law. 29. In Indian Bank and another vs. Mahaveer Khariwal, (2021) 2 SCC 632 , wherein regulation 29 of 1995 Pension Regulation was involved the Hon’ble Apex Court observed and held in paragraph 18 that “on a fair reading of Regulation 29, it emerges that an employee is entitled to apply for voluntary retirement after he has completed 20 years of qualifying service. He can apply for voluntary retirement by giving notice of not less than three months in writing to the appointing authority (Regulation 29(1))” and in paragraph 19 that “it also appears that as per Sub Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub Regulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice.” 30. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice.” 30. In the considered view of this court the petitioner stood voluntarily retired on expiry of the notice period of three months from the date of his representation/application dated 26.02.2009 as no order of refusal was passed thereon. The charge memo is dated 05.12.2009 i.e after expiry of three months period from the date of notice of voluntary retirement and as such the charge memo itself is of a date after the petitioner’s voluntary retirement became effective, no disciplinary proceedings could be initiated and no order of punishment of removal could be passed which is without jurisdiction, null and void. 31. As this Court has recorded that the disciplinary proceedings and the impugned order are non-est, the submission of the petitioner’s counsel on the point of punishment being disproportionate looses relevance. However, as a principle it requires reiteration that the doctrine of proportionality of punishment is a well recognized concept of judicial review. In Mukul Kumar Choudhuri (supra), the Hon’ble Apex Court held that what is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim impunity and remains open for interference under limited scope of judicial review. A reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. 32. Though there cannot be any dispute with respect to the stand of the respondents in the counter affidavit that the petitioner is in Railway Protection Force and being in a disciplined force, even a single day’s absence from duty, may amount to misconduct and on proof of charge he may be imposed punishment, but the principle of proportionality of punishment would equally, apply in the matter of imposition of punishment even on a member of a disciplined force. 33. 33. In Mukul Kumar Chodhoury (supra), the charge was of misconduct for unauthorized absence from duty for six months, and the employee while admitting it, explained the reasons for his absence that he had no intention to disobey the order of higher authority or violate any of the companies rules or regulations but the reason was purely personal and beyond his control. The employee had also sent his resignation but the same was not accepted. The Hon’ble Apex Court held that the order of removal could not be justified since no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment was held to be not only unduly harsh but grossly in excess to the allegations. In the present case also, the petitioner is charged for misconduct for unauthorized absence by overstaying the leave period from 16.02.2009 to 25.02.2009. He explained the reason of serious illness of his mother-in-law and the father and he being the only person upon whom they depended. He also sent the telegram followed by the representations requesting the respondents to consider his request for voluntary retirement or resignation under the rules in view of the circumstances beyond his control. All this was done even prior to serving the charge memo to the petitioner. The submission of the petitioner’s counsel is as per law laid down in Mukul Kumar Chodhury (supra). 34. The writ petition is allowed quashing the Divisional Order No.119 of 2010 Lr.No.G/XP.227/153/11/GRP/2009 dated 10.12.2010, the order of the 2nd respondent No.65/2011 dated 03.06.2011 rejecting the petitioner’s appeal. The respondents are directed to consider the petitioner as voluntarily retired on expiry of three months from the date of notice dated 26.07.2009, and to pay him all the consequential service benefits permissible under the rules, to a voluntarily retired member of the force within a period of three months from the date of receipt of copy of this judgment. No order as to costs. Consequently, the Miscellaneous Petitions, if any, shall also stand closed.