The main legal point established in the judgment is the interpretation of the employee's right to voluntary retirement and the impact of retirement on pending disciplinary proceedings.

NAVANITI PRASAD SINGH. J.

1. These two writ petitions; one by the employee and the other by Railway, have been filed against the order dated 03.07.2012, passed in O.A. No. 297 of 2010 by the Central Administrative Tribunal, Patna (hereinafter referred to as `the Tribunal’).

2. Syed Jamaluddin Ali (hereinafter referred to as `employee’) had been allegedly absent without authorization from duty for a considerable period. A departmental proceeding was initiated, which culminated into an order of his dismissal though he had allegedly retired from service under voluntary retirement scheme on 22.11.2007. Railway did not accept the request of voluntarily retirement and treating him to be in service, passed orders of dismissal from service. This was not interfered with by the appellate authority. When the employee came before the Tribunal, on behalf of the employee, it was urged that he having applied for voluntary retirement, on the expiry of the period, he would be deemed to have retired, in absence of order rejecting his application. It was further argued that having retired no order could be passed dismissing him from service and, therefore, the disciplinary proceeding could not have ended in his dismissal. He also urged that the very initiation of the disciplinary proceeding was without jurisdiction and further the enquiry officer had not given any categorical finding in respect of his unauthorized leave.

3. On behalf of the Railway, it was urged that no order having been passed accepting his request for voluntary retirement, voluntary retirement could not take effect and, accordingly, he continued to be in service. Primarily, what the Railway submitted was that there being a major penalty, charge-sheet and proceeding pending, the employee could not seek voluntary retirement, nor can it be granted. He would, thus, continue in service and was rightly punished. Railway further defended the report of the enquiry officer, as also the initiation of the disciplinary proceeding.

4. In fairness to Mr. Ojha, learned counsel for the employee, we must notice that in the end he submitted that if one looks to the facts of the case i.e. 30 years of employee’s unblemished service in the Railway, coupled with the fact that there was no charge involving any moral turpitude and the charge being of absence from duty as alleged, the punishment of dismissal from service, denying all retiral benefits was grossly disproportionate.

5. The Tribunal held partly in favour of both the parties. The Tribunal held that the employee had a right to apply for voluntary retirement and the same not having been refused in terms of Rule 67(2) of the Railway Services Pension Rules, 1993, on expiry of three months’ period from the date of application, employee would be deemed to have retired and once that be so, then no order of punishment with regard to service could be passed. In other words, the order of dismissal could not be passed as there did not exist master and servant relationship thereafter. But while doing so, the Tribunal then held that the charge against the employee was such that even though the order passed in the disciplinary became void, the matter had to be remanded to the disciplinary authority to reinitiate the proceeding as a proceeding for forfeiture of pensionary benefit. In other words, converting the same into a proceeding for punishment in terms of what could be done in respect of superannuated employees, thus, both the parties are aggrieved by parts of the order of the Tribunal.

6. We have, to see as to what are the rights and the effect of an employee in respect of voluntary retirement and what would its consequence be on a pending departmental proceeding. In this respect, there are two sets of rules that would be relevant. One is Rule 67(2) and the other is Rule 9(2) of the Rules, relevant parts whereof are quoted hereunder :-

“Rule 67. Retirement on completion of 20 years qualifying service :- (1) At any time after a railway servant ha