THE HON’BLE MR v. S. Mohammed Ghouse2. The Registrar Central Administrative Tribunal Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:11.08.2005CORAM:THE HON’BLE MR.JUSTICE P.SATHASIVAMandTHE HON’BLE MR.JUSTICE AR.RAMALINGAMW.P.Nos.25232 & 25233 of 2002WPMP.Nos.34632,34633/02and 10508, 10509 of 20051. The Asst. Commissioner Kendriya Vidyalaya Sangathan IIT Campus, Chennai 600 036.2. The Commissioner Kendriya Vidyalaya Sangathan New Delhi 110 016. ..Petitioners in both Wps.vs.1. S. Mohammed Ghouse2. The Registrar Central Administrative Tribunal Chennai. ..Respondents in both Wps.Petitions filed under Article 226 of the Constitution of Indiapraying for an issuance of a writ of certiorari as stated therein.For petitioners : Mr. M. Vaidyanathan in both Wps.,For respondents : Mr. Vijay Shankar for R.1in both Wps.,.. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER(ORDER of the Court was made by P.SATHASIVAM,J.)Aggrieved by the order of the Central Administrative Tribunaldated 07.06.2000 made in T.A.Nos.24 and 25 of 1999, Kendriya VidyalayaSangathan has filed the above writ petitions.2. Since the issues raised in both the writ petitions are relatedto S. Mohammed Ghouse, first respondent herein, they are being disposed ofby the following common order.3. The brief facts are as follows:The first respondent during his tenure as Principal atKendriya Vidyalaya No.II, Tambaram, applied for extraordinary leave for aperiod of 2 years in his letter dated 03.09.1985 to avail of medicaltreatment at Sharjah for his son who has been suffering from cerebralpalsy. His request was considered and leave was sanctioned granted bythe first petitioner through his proceedings dated 18.11.1985, subject tothe condition that he should not seek any teaching or gainful employmentduring his stay at Sharjah and was relieved of his duty from 28.11.1985.(a) The first respondent having completed 25 years of service inKendriya Vidyalaya Sangathan, sought voluntary retirement in his letterdated 06.01.1992 under Rule 56(K) of the Fundamental Rules and 48-A of theCentral Civil Service (Pension) Rules, giving 3 months notice. Accordingto the first petitioner, the said letter was received by him on 09.01.1992and a copy of the same was forwarded vide letter dated 14.01.1992 to thesecond petitioner herein, who received it on 27.01.1992. The secondpetitioner sought certain information in his letters dated 05.02.1992 and14.02.1992, which include vigilance clearance certificate. Afterverification of the records, it was found that certain complaints werepending against the first respondent, hence, his request for voluntaryretirement was rejected by the second petitioner through telegram dated06.04.1992, as 05.04.1992 was a Sunday. The refusal was also communicatedto the Director, JIPMER, and Chairman, VMC by telex dated 07.04.1992 bythe first petitioner. (b) According to the petitioners, as the request of the firstrespondent for voluntary retirement was rejected within the time, asdisciplinary proceedings initiated on 04.01.1993 under Rule 14 of CCS(CCA) Rules, 1965 were pending against him. Questioning the same, thefirst respondent herein has filed two writ petitions, one for declaration,declaring that he having retired with effect from forenoon of 06.04.1992in pursuance of the voluntary retirement notice dated 06.01.1992 andanother to quash the charge memo dated 04.01.1993. Both the writpetitions have been transferred to the Central Administrative Tribunal andre-numbered as TA.Nos.24 and 25 of 1999. By separate order dated07.06.2000, the Tribunal quashed the first charge memo and permitted theKendriya Vidyalaya to proceed against the applicant in respect the second https://hcservices.ecourts.gov.in/hcservices/ charge issued vide memorandum dated 04.01.1993. In another order, theTribunal, after finding that the applicant had ceased to be in servicewith effect from 06.04.1992, since three months period came to an end on05.04.1992, allowed his application and directed the Kendriya VidyalayaSangathan to declare that the applicant had retired from service witheffect from 06.04.1992, after the expiry of three months notice periodfrom 06.01.1992. Questioning the same, as stated earlier, KendriyaVidyalaya Sangathan has filed the above writ petitions.4. Heard Mr. M. Vaidyanathan, learned counsel for the petitionersand Mr. Vijay Shankar, learned counsel for first respondent.5. First, let us consider the question relating to acceptance /rejection of the voluntary retirement offered by the first respondent on06.01.1992. There is no dispute that the first respondent / Principal inKendriya Vidyalaya had completed 25 years of service during 1991, when hesubmitted an application for voluntary retirement on 06.01.1992. Rule 48-A of CCS (CCA) Pension Rules and Rule 56-K of Fundamental Rules enable thefirst respondent to apply for voluntary retirement for certain reasons.There is no dispute regarding his eligibility to avail voluntaryretirement under the above said Rules. By letter dated 06.01.1992,addressed to the second petitioner, the first respondent, after referringthe illness of his son since childhood and he is immobile and bed-ridden,sought to proceed on voluntary retirement with effect from 06.04.1992. Inthe same letter he informed that the said letter may be noted as threemonths notice for the same from 06.01.1992. In this regard it isrelevant to refer the provisions quoted by the first respondent."48-A. Retirement on completion of 20 years'qualifying service.(1) At any time after a Government servant hascompleted twenty years' qualifying service, he may, bygiving notice of not less than three months in writingto the Appointing Authority, retire from service.Provided....................................(2) The notice of voluntary retirement given underrub-rule (1) shall require acceptance by theAppointing Authority;Provided that where the Appointing Authority doesnot refuse to grant the permission for retirementbefore the expiry of the period specified in the saidnotice, the retirement shall become effective from thedate of expiry of the said period. " https://hcservices.ecourts.gov.in/hcservices/

6. It is the claim of the first respondent that his letter dated06.01.1992, seeking voluntary retirement had been acknowledged by thesecond petitioner, the same was either accepted or rejected before theexpiry of three months period, viz., 05.04.1992. The Tribunal, afterconsidering the relevant Rules and the factual information that no ordershave been passed prior to 05.04.1992 by the Kendriya Vidyalaya, afterfinding that they accepted the request of the applicant to retirevoluntarily with effect from 06.04.1992 and relying on the principles laiddown by the Supreme Court, allowed the application and declared that theapplicant had retired from service with effect from 06.04.1992, i.e.,after the expiry of three months notice period from 06.01.1992. ThoughKendriya Vidyalaya has claimed that a telegram had been sent on06.04.1992, refusing to accept the request for voluntary retirement inview of pendency of some vigilance enquiry and also confirmation letter on07.04.1992, as rightly argued and concluded by the Tribunal, the factremains that there is no information / intimation before the cut-off date,viz., 05.04.1992. Though an argument was advanced before the Tribunal aswell as before this Court on the side of Kendriya Vidyalaya Sangathan thatthree months period has to be counted from the date of receipt of the saidnotice. In the absence of any such specific provision and in view ofproviso to sub-rule (2) of Rule 48-A of CCS (Pension) Rules, suchinference cannot be drawn and even if we accept the case of the KendriyaVidayalaya, their intimation is belated and on and from 06.04.1992, theapplicant had retired from service.7. In the case of Union of India vs. Sayed Muzaffar Mir reportedin AIR 1995 SC 176, the Hon'ble Supreme Court has held that the retirementcomes into effect on completion of notice period. The followingconclusion is relevant for our consideration."5. The second aspect of the matter is that it hasbeen held by a three Judge Bench of this Court inDinesh Chandra Sangma vs. State of Assam (1977) 4 SCC441: (AIR 1978 SC 17), which has dealt with a parimateria provision finding place in Rule 56(c) of theFundamental Rules, that where the Government servantseeks premature retirement the same does not requireany acceptance and comes into effect on the completionof the notice period. This decision was followed byanother three Judge Bench in B.J. Shelat vs. State ofGujarat, (1978) 2 SCC 202: (AIR 1978 SC 1109). "8. In the case of State of Haryana vs. S.K. Singhal reported in1999 (4) SCC 293, the two Judge Bench, following the earlier decision inDinesh Chandra Sangma vs. State of Assam (1977) 4 SCC 441: (AIUR 1978 SC17), which is a decision of three Judge Bench of the Supreme Court, hasobserved, https://hcservices.ecourts.gov.in/hcservices/ "13. Thus, from the aforesaid three decisions it isclear that if the right to voluntarily retire isconferred in absolute terms as in Dinesh ChandraSangma vs. State of Assam (1977) 4 SCC 441: (AIUR 1978SC 17), by the relevant rules and there is noprovision in the rules to withhold permission incertain contingencies the voluntary retirement comesinto effect automatically on the expiry of the periodspecified in the notice. If, however, as in B.J.Shelat case (1978) 2 SCC 202:1978 SCC (L&S) 208 and asin Sayed Muzaffar Mir case AIR 1995 SC 176, theauthority concerned is empowered to withholdpermission to retire if certain conditions exist,viz., in case the employee is under suspension or incase a departmental enquiry is pending or iscontemplated, the mere pendency of the suspension ordepartmental enquiry or its contemplation does notresult in the notice for voluntary retirement notcoming into effect on the expiry of the periodspecified. What is further needed is that theauthority concerned must pass a positive orderwithholding permission to retire and must alsocommunicate the same to the employee as stated in B.J.Shelat case (1978) 2 SCC 202:1978 SCC (L&S) 208 and asin Sayed Muzaffar Mir case AIR 1995 SC 176, beforethe expiry of the notice period. Consequently, thereis no requirement of an order of acceptance of thenotice to be communicated to the employee nor can itbe said that non communication of acceptance should betreated as amounting to withholding of permission. "9. In the case of Tek Chand vs. Dile Ram reported in 2001 (3) SCC290, while considering the very same sub-rule (2) of Rule 48-A of theCentral Civil Services (Pension) Rules, 1972, the Supreme Court has held,sub-rule (2) of Rule 48-A requires the appointing authority to accept thenotice of voluntary retirement given under sub-rule (1). It is open tothe appointing authority to refuse also, on whatever grounds available toit, but such refusal has to be before the expiry of the period specifiedin the notice. The proviso to sub-rule (2) is clear and certain in itsterms. If the appointing authority does not refuse to grant thepermission for retirement before the expiry of the period specified in thesaid notice, the retirement sought for becomes effective from the date ofexpiry of the said period. In our case, admittedly, the appointingauthority did not refuse to grant the permission for retirement to theemployee concerned before expiry of the period of notice. 10. The relevant Rule as well as the above decisions make itclear that the authority concerned must pass a positive order withholding https://hcservices.ecourts.gov.in/hcservices/ permission to retire and must also communicate to the person concerned,before the expiry of the notice period. In our case, even according tothe Kendriya Vidayalaya Sangathan, telegram was sent, refusing to acceptthe voluntary retirement on 06.04.1992, i.e., after the expiry of theperiod mentioned in the notice. All these material aspects have beencorrectly considered by the Tribunal and accepting the claim of theapplicant, allowed his application. We are in entire agreement with suchconclusion.11. Coming to quashing of one charge memo and permitting theDepartment to proceed the other one, it is to be noted that the firstcharge relating to the incident that had taken place during the year 1985-86, viz., more than four years before the date of voluntary retirement ofthe applicant, i.e., 06.04.1992 and therefore, the same was barred interms of Rule 9 (2) of the CCS (Pension) Rules. Regarding the secondcharge, the Tribunal has permitted the Department to proceed with the sameand conclude the proceedings expeditiously. It is brought to our noticethat though the order of the Tribunal in both the above matters was passedas early as on 07.06.2000, the fact remains that no steps were taken bythe Department either within the time limit allowed or challenging itbefore this Court immediately. 12. It is the claim of the first respondent that he was sendingenormous representations to the Department to release the terminalbenefits payable to him. Only after more than 2 years, the KendriyaVidyalaya Sangathan has filed W.P.Nos.25232 and 25233 of 2002, challengingthe orders of the Tribunal. It is not in dispute that this Court hasadmitted both the writ petitions and not granted any interim orders sofor. It is also the grievance of the first respondent that though hedeemed to have been retired with effect from 06.04.1992, none of theterminal benefits have been paid to him, except G.P.F. and provisionalpension. It is also his grievance that he has not been given gratuity,leave encashments and commutation of pension. He is now aged about 72years and it is more than 13 years, since he retired. It is his furthergrievance that, his son who was suffering from cerebral palsy and hisailing wife died during these years leaving him alone to defend forhimself. 13. It is also brought to our notice that five years after theorder of the Tribunal and three years after the admission of these twowrit petitions, notice for enquiry into charges framed against him wasgiven in respect of certain allegations made in the charge memo dated04.01.1993. Though the Tribunal has passed an order in June, 2000,permitting the Kendriya Vidayalaya Sangathan to proceed with the secondcharge, the fact remains, for the last five years no steps have been takento hold an enquiry as directed by the Tribunal. It is explained that thealleged incident relate to 1989 and 1990 and it is inhuman on the part of https://hcservices.ecourts.gov.in/hcservices/ the Kendriya Vidyalaya to proceed against him after more than 16 years.Further, as rightly pointed out that the charge itself is flimsy andrelates to an appointment of one Group "D" employee, when he was workingas a Principal of Kendriya Vidyalaya Sangathan, Pondicherry. It is alsohis claim that appointment had been made by a Committee, of which he is aMember and the same was made after police verification, later, it turnedout that the selection candidate was an impostor and on coming to know ofit, he was asked to resign. In such a circumstance, as rightly pointedout, in view of length of time, we are satisfied that conducting enquirywith regard to the said incident at this juncture is improper and if thecharge is now held to be proceeded and enquiry held, it will put toirreparable loss and hardship. Under these circumstances, we do not find any merit in these writpetitions; accordingly, the same are dismissed. No costs. Consequently,connected WPMPs., are also dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.khToThe Registrar Central Administrative Tribunal Chennai 104. W.P.Nos.25232 & 25233/2002Dated:11.08.2005ng(co)gp/18.8.