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IN THE HIGH COURT OF JUDICATURE AT PATNA
Amreshwar Pratap Sahi, CJ, Anjana Mishra, JJ.
Devendra Prasad Singh - Petitioners
Versus
Union of India through Secretary, Department of Posts, Dak Bhavan, New Delhi-110001 - Respondents
Civil Writ Jurisdiction Case No. 14241 of 2019
Decided On : 15-10-2019
Fundamental Rules 56 read with Central Civil Services (Pension) Rules, 1972—Rule 48-A—Voluntary Retirement—Cancelled on the strength of pendency of disciplinary proceeding—No proceeding initiated for three years when the petitioner was in very much service—No explanation that when when the request of voluntary retirement came to be accepted, why the recommendation made with an endorsement that there was no vigilance case pending—A sudden discovery of an incident three years old right two days before the date of retirement creates doubt about the promptness in action by the respondent authorities—After the application for voluntary retirement, no exercise undertaken to assert in all facts—Within three month notice period and to the contrary acceptancy of voluntary retirement communicated unconditionally—Any lapse on the part of the petitioner completely lacking—However, the question as to whether the disciplinary proceedings stood initiated with service of charge sheet on the petitioner or would be deemed to have been initiated so as to empower the authority to withhold or cancel permission not been appreciated in correct perspective of facts that required investigation in order to invoke the applicability of Fundamental Rule 56 (k) (1) (ii) by Tribunal—It being a question of fact to be probed, matter remitted back to Tribunal—Writ application party allowed—Impugned order of the Tribunal quashed. (Paras 28 & 31)
(1977) 4 SCC 441; (1978) 2 sCC 202; 1995 Supp (1) SCC 76; (1999)4 SCC 293 – Referred.
C.A.V. JUDGMENT :
Amreshwar Pratap Sahi, CJ.
The petitioner has prayed for setting aside the impugned order of the Tribunal dated 30th May, 2019 that has upheld the action of the respondent authorities whereby they had cancelled the request of the petitioner for voluntary retirement and the appeal filed against the same has been dismissed.
02. A further prayer has been made to quash a charge-sheet issued to the petitioner and the consequential proceedings on the ground, that if the petitioner is deemed to have been retired in law w.e.f. 01.09.2017 then in that event no disciplinary action could have been taken against him which was also prayed to be declared as null and void on the aforesaid ground. We find that this relief had been prayed for before the Tribunal in the Original Application even though there is no specific prayer to that effect in the present writ petition.
03. The petitioner while working as Assistant Post Master (SBSO), Head Office, Hajipur applied for voluntary retirement under Rule 48 of the CCS (Pension) Rules, 1972 and for that a notice dated 21st of May, 2017 with an endorsement of having been served before the competent authority on 22.05.2017. The caption of the application-cumnotice mentions that it is being moved under Fundamental Rule 56 read with Rule 48-A CCS (Pension) Rules, 1972. This application for voluntary retirement was admittedly accepted on 23rd August, 2017. The same is extracted herein under:-
Department of Posts, India
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Office of the Chief Postmaster General, Bihar Circle, Patna- 800001
ORDER
Memo. No.Staff/PF/LSG/Misc./2016
Dated at Patna 23.08.2017
The Competent Authority is pleased to accept the notice dated 21.05.2017 of Voluntary Retirement by Sri Devendra Prasad Singh, APM, SBSO, Hajipur HO, Vaishali Division, under Rule-48 of CCS (Pension) Rules, 1972 and permit him to retire voluntarily from Government Service w.e.f. 01.09.2017 forenoon.
(Narsingh Mahto)
Assistant Director (Staff)
Phone:- 0612-2225148
Email: staff. br@indiapost.gov.in
Copy for information and necessary action to
1. The Director of Accounts(Postal), Patna
2.The Supdt. Of Postoffices, Vaishali Division, Hajipur with reference to his letter no.B1/157/Ch-I dated 16.06.2017. He is requested kindly to adjust the dues against the office, if any.
3. The Postmaster, Hajipur HO.
4. Sri Devendra Prasad Singh, APM, SBSO, Hajipur HO, Vaishali Division.
5. Spare
Assistant Director (Staff)”
04. A perusal of the notice/request for voluntary retirement tendered by the petitioner would clearly demonstrate a recital that the petitioner intended to retire w.e.f. 1st of September, 2017 upon completion of 34 years 4 months of service and having attained the age of 55 years 8 months as on 31.08.2017 that was accepted as above.
05. To clear the mist about the applicability of rules, it would be apt to quote Rule 48-A of the CCS Pension Rules, 1972 which is extracted hereinunder:-
(1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service.
Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is—
(i) on assignments 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/Departments,
(iii) on a specific contract assignment to a foreignn Government, unless, after having been transferred to India, he has resumed the charge of the 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 refus
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