A.SREEKUMARAN NAIR v. IN O.A.NO.1

MANJULA CHELLUR (Ag.CJ) & A.M.SHAFFIQUE, J. * * * * * * * * * * * * * O.P(CAT) No.2367 of 2012 ----------------------------------------Dated this the 22nd day of August 2012 J U D G M E N T SHAFFIQUE,JThe applicant before the Central Administrative Tribunal(CAT) in O.A.No.1112 of 2010 is the petitioner herein. Theapplication was filed by the petitioner challenging Annexure A-Vorder issued by the 2nd respondent imposing a penalty of removalfrom service and Annexure A-VII order of the appellate authorityconfirming the said penalty.2.It is the case of the petitioner that he was appointedas H.Skl. (Grade I) in Naval Dockyard, Visakhapattanam on21/6/1978 after completing his apprenticeship from 07/03/1977onwards. According to him, he was suffering from severearthritis and he had to take leave on medical grounds and loss ofpay on several occasions. The petitioner applied for voluntaryretirement when he completed his twenty years two months andnine days service after excluding the apprenticeship period. Theapplication was made on 08/08/1998. There was no information O.P(CAT) No.2367/122from his employer in regard to his voluntary retirement and atlast in May 2002, when he enquired about the matter, he wasserved with a letter dated 31/5/1999 stating that he did not havethe minimum qualifying service of 20 years to his credit forapplying under voluntary retirement scheme. The eventualitywould be that the petitioner would not be entitled for any eligiblepension. The petitioner submitted a representation to includethe earned leave and half pay leave as per department rules inorder to get the 20 years qualifying service to get the voluntaryretirement benefits.3.It is further alleged that instead of considering hisrepresentation, the respondents charge sheeted the petitioner byissuing a memo of charges for unauthorised absence of dutysince 09/09/1998. The petitioner contested the proceedingswhich ultimately resulted in Annexure A-V penalty order. Themain contention urged by the petitioner is that though he hadissued notice for voluntary retirement on 08/08/1998, he wasinformed about his ineligibility to get the pension due to lack ofminimum service only by Annexure A-II order dated 31/5/1999,served in May 2002. O.P(CAT) No.2367/1234.Respondents however contended that the petitionerwas habitually proceeding on leave of loss of pay and on severaloccasions action was taken for his unauthorised absence.Though he was asked to undergo medical examination at theDistrict Government Hospital, Thiruvananthapuram, thepetitioner took the view that he was undergoing ayurvedictreatment and was taking bed rest. Therefore, considering thetotal period for which the petitioner had worked in the service, itwas found that he remained unauthorisedly absent for severalmonths and since he remained absent from duty unauthorisedlyfrom 1994-1997, there was a shortage in the requisite 20 yearsqualifying service for grant of voluntary retirement. It is furthercontended that the application dated 08/08/1998 given by thepetitioner was processed and rejected by Annexure A-II orderdated 31/5/1999 and another communication was sent to thepetitioner on 13/7/1999 directing him to report for dutyforthwith and to forward the medical certificate from the nearestGovernment hospital/District Medical Officer in regard to hisillness for the period of unauthorised absence. According to therespondents, since the petitioner did not respond and remainedabsent from duty, he was issued charge sheet and further O.P(CAT) No.2367/124disciplinary proceedings were taken.It is also contended thatbefore issuing letter dated 08/08/1998, the petitioner ought tohave verified whether he was having the qualified serviceespecially in view of the fact that he was unauthorisedly absentfor about two years in between 1994-1997.5.The CAT, after having taken into consideration therelevant facts of the matter, came to a finding that since thepetitioner had admitted the charges and conceded the mistakeson his part, the penalty imposed was not commensurate with thegravity of offence. In that view of the matter, the Tribunalobserved that the disciplinary authority ought to have penalisedhim with compulsory retirement since one earns minimumpension with ten years of service and especially when theapplicant had put in close to 20 years. In that view of the matter,Ext.A-VII order was set aside and the 3rd respondent wasdirected to re-consider Annexure A-VI appeal within a time frameof four months.6.It is aggrieved by the above order of the CAT that thiswrit petition is filed. Learned counsel appearing for thepetitioner contended that the petitioner is having the qualifyingservice of 20 years even going by the provisions of Rule 48A of O.P(CAT) No.2367/125the Central Civil Services Pension Rules (hereinafter referred toas 'the Rules'). The contention of the learned counsel is multifold. The first contention is that as per Rule 48-A(1), aGovernment servant has to complete 20 years of qualifyingservice in order to retire from service by giving not less thanthree months notice in writing to the appointing authority. Asper sub Rule (2), the notice of voluntary retirement given undersub Rule (1) require acceptance by the appointing authority.Proviso to sub Rule (2) indicates that if the appointing authoritydoes not refuse to grant permission for retirement before theexpiry of the period specified in the notice, retirement shallbecome effective from the date of expiry of the said period.According to the petitioner, he had given Annexure A-1 dated08/08/1998 intending to retire from service with effect from25/8/1998. Apparently, three months notice was not given to theappointing authority. The learned counsel relies upon sub Rule3-A(a) and (b) which reads as under:(3-A)(a) A Government servant referred to in sub-rule (1) may make a request in writing tothe Appointing Authority to accept notice ofvoluntary retirement of less than threemonths giving reasons therefor; O.P(CAT) No.2367/126 (b)On receipt of a request under Clause (a),the Appointing Authority subject to theprovisions of sub-rule (2), may considersuch request for the curtailment of theperiod of notice of three months on meritsand if it is satisfied that the curtailment ofthe period of notice will not cause anyadministrative inconvenience, theAppointing Authority may relax therequirement of notice of three months onthe condition that the Government servantshall not apply for commutation of a part ofhis pension before the expiry of the periodof notice of three months.”7.By virtue of sub-Rule 3-A(a), notice of voluntaryretirement can be issued without giving three months notice aswell, but reasons are to be stated. The argument of the learnedcounsel is that as per Clause (b) of sub-rule 3-A, the appointingauthority has to consider such request for the curtailment ofperiod of notice of three months on merits and if it is satisfiedthat the curtailment of period of notice will not cause anyadministrative inconvenience, the appointing authority may relaxthe requirement of notice to three months on conditions. Theargument is that when no orders had been passed with reference O.P(CAT) No.2367/127to the request for voluntary retirement submitted by thepetitioner by virtue of Rule 3-A(b), the proviso to sub-rule (2)applies and the retirement has become effective from the date ofexpiry of the period. 8.We do not think that the above argument issustainable in view of the fact that these provisions will help thepetitioner only if he had the qualifying service of 20 years. If hedoes not have the qualifying service of 20 years, his veryapplication is defective and therefore not passing the orderwithin the period prescribed in the said notice will have noeffect.9.Another argument raised is on the basis of Rule 48-B(1) which reads as under:48-B. Addition to qualifying service onvoluntary retirement.(1) The qualifying service as on the date ofintended retirement of the Government servantretiring under Rule 48(1)(a) or Rule 48-A orClause (k) of Rule 56 of the Fundamental Rulesor Clause (i) of Article 459 of the Civil ServiceRegulations, with or without permission shall beincreased by the period not exceeding five years,subject to the condition that the total qualifying O.P(CAT) No.2367/128service rendered by the Government servantdoes not in any case exceed thirty-three yearsand it does not take him beyond the date ofsuperannuation.10.This provision also will have no application to the casewhere the petitioner does not have the qualifying service. Onlyif the petitioner is having the qualifying service of 20 years, he isentitled for voluntary retirement, failing which no addition couldbe made to the qualifying service as contended by the learnedcounsel for the petitioner.11.Another argument raised is based on Rule 49(3) whichreads as under:(3) In Calculating the length of qualifyingservice, fraction of a year equal to threemonths and above shall be treated as acompleted one half year and reckoned asqualifying service.12.We are afraid that this provision also will not help thepetitioner. This provision applies only for the purpose ofcalculating the gratuity as provided under sub-rule (1) of Rule49, before completing the qualifying service of 10 years andSub-rule (2) of Rule 49 which states that in the case of O.P(CAT) No.2367/129Government servant retiring before or after completing thequalifying service of 33 years, the pension will be calculated in aparticular manner. Therefore sub-rule (3) relates to computationof qualifying service in regard to persons mentioned under sub-rules 1 and 2 alone and that rule position cannot be transferredto qualifying service at Rule 48-A. In fact, qualifying service isdefined as per Rule 2(q) as under:2(q):'Qualifying Service' means service renderedwhile on duty or otherwise which shall betaken into account for the purpose ofpensions and gratuities admissible underthese rules;13.Therefore, we do not find fault with the submission ofthe learned Assistant Solicitor General that CAT was correct inholding that the petitioner did not have the qualifying service of20 years as prescribed under Rule 48-A.14.Now coming to the question of the disciplinaryproceedings taken against the petitioner which is underchallenge, it could be seen that though the petitioner applied forvoluntary retirement by his application dated 08/08/1998requesting for retirement from service with effect from08/09/1998, no steps were taken by the department within the O.P(CAT) No.2367/1210period prescribed under Rule (2) of sub-rule 48-A or the provisothereof. It is the case of the petitioner that only when heapproached the respondents that he was served with an orderdated 31/5/1999 indicating that he did not have the necessaryqualifying service for considering his request for voluntaryretirement. 15.In the counter affidavit filed before the CAT, therespondents have contended that since the applicant failed tointimate the correct address for communication, letter dated31/5/1999 was forwarded to the applicant's home town address.Apparently, it is not served on the petitioner. It is furtherindicated that they had issued a charge memo only on30/08/2002 for the misconduct of unauthorised absence fromduty for the period from 09/09/1998 to 30/08/2002. It is verycurious to note, as to why the department took such a long timefor issuing a charge memo to an employee who was absent fromduty since 09/09/1998 if they had actually rejected his voluntaryretirement request by letter dated 31/5/1999. Therefore, it isclear that the said letter dated 31/5/1999 was not intimated tothe petitioner and the department had decided to initiatedisciplinary proceedings only when the petitioner made a O.P(CAT) No.2367/1211request for providing him the benefits of the voluntaryretirement. In fact but for the disciplinary proceedings petitionerwas entitled to get pension atleast after 10 years of completedservice. It seems that it is to avoid payment of the eligiblepension due to the petitioner after completion of 10 years ofservice that the disciplinary proceedings had been taken.16.The Assistant Solicitor General of India tried toexplain that there was no mala fides on the part of thedepartment in the matter. Still, it is relevant to note that therehad been gross delay on the part of the department in initiatingdisciplinary action against the petitioner. If action was taken atan earliest point of time, probably the petitioner could havejoined service and could have even completed 20 years ascontemplated for the qualifying service for voluntary retirement.Such an opportunity was lost to the petitioner since disciplinaryproceedings had been taken after about four years from the dateof his unauthorised absence.17.It is in that background that the punishment imposedon the petitioner requires to be considered, is the argument ofthe learned counsel for the petitioner. It is not in dispute thatthe petitioner had undergone minor penalties for unauthorised O.P(CAT) No.2367/1212absence on four occasions and he had suffered the punishment.But, still, no drastic steps were taken by the department. Fromthe records, it is evident that even in the enquiry, the petitionerdid not dispute the fact that he was unauthorisedly absent but,according to him, he proceeded on the basis that his voluntaryretirement request was accepted by the department especiallywhen there was no communication from the department whichamounted to deemed acceptance in terms of the proviso to Rule48-A (2) of the Rules.18.The Tribunal also felt that the punishment of dismissalfrom service was too harsh taking into consideration the longservice that the petitioner had undertaken in the department andeven according to the Tribunal, the disciplinary authority couldhave penalised the petitioner with compulsory retirement so thathe could have earned pension for ten years of completed service.But the Tribunal has directed the respondent authority to re-consider the appeal on merits.19.Having regard to the facts and circumstancesnarrated above and as borne out by the records, we are of theview that the punishment imposed on the petitioner was clearlydisproportionate to the charges levelled against him especially in O.P(CAT) No.2367/1213the light of the fact that charge memo dated 30/08/2002 wasissued for unauthorised absence from 09/09/1998 to 30/08/2002only after 4 years. There are also laches on the part of thedepartment in taking action in time with reference to the requestfor voluntary retirement which would have definitely improvedthe situation as far as the petitioner is concerned. Therefore, thepunishment of dismissal from service is, according to us, totallynot commensurate with the facts and circumstances involved inthe matter and the finding of guilt. We do not even hesitate tostate that if the petitioner had been informed about refusal ofvoluntary retirement request in time or immediately after09/09/1998 or within the time stipulated under the Rules, thepetitioner could have taken corrective steps to enable him toavail the said benefits.20.We are well aware of the proposition that interferencewith a punishment by a court can be exercised only if thepunishment is shockingly disproportionate to the chargeslevelled. In fact, as already indicated, even while issuing thecharge memo, there had been considerable delay which hadaffected the interest of the petitioner in the matter. Thepetitioner, having put in more than 19 years of service even O.P(CAT) No.2367/1214according to the respondents, is atleast entitled for a compulsoryretirement from 09/09/1998 so that he will be eligible for theminimum pension as per the Rules. 21.Under these circumstances, we are inclined to modifythe order passed by the CAT and direct the respondents to treatthe petitioner's removal from service as compulsory retirementand pass appropriate orders in accordance with the Rules withina period of three months from the date of receipt of a copy of thisjudgment.Original petition is disposed as above.(sd/-) (MANJULA CHELLUR, ACTING CHIEF JUSTICE)(sd/-)(A.M.SHAFFIQUE, JUDGE)jsr O.P(CAT) No.2367/1215 O.P(CAT) No.2367/1216