Unauthorized absence from duty by an employee is misconduct, and a Voluntary Retirement Scheme application does not confer automatic retirement rights without formal acceptance.

JUDGMENT

Chandra Dhari Singh, J.

FACTUAL MATRIX

1. The instant writ petition under Article 226 & 227 of the Constitution of India has been filed on behalf of the petitioner seeking the following reliefs:

"(i) to set aside and quash the impugned order dt. 5.11.2009, chargesheet dt. 17.6.08 & findings dt. 12.6.2009.

(ii) to direct the respondent to accept the VRS of the petitioner w.e.f. 6.01.2007 in terms of the Voluntary Retirement Scheme of the respondents.

(iii) to direct the respondent to pay the VRS benefits accrued in favour of the petitioner alongwith interest 12% per annum in order to meet the end of justice alongwith costs in favour of the petitioner.."

2. The Petitioner joined Respondent No.3 (hereinafter referred to as "Kendriya Bhandar") as Accounts Officer w.e.f. 28th June, 1996. He was appointed as Chief Accounts Officer on ad-hoc basis w.e.f. 01st February, 1999 followed by his regularization as Chief Accounts Officer (CAO) w.e.f. 12th January, 2001. The Kendriya Bhandar introduced a Voluntary Retirement Scheme (hereinafter referred to as "VRS") vide circular dated 7th August, 2006 inviting applications for voluntary retirement from the employees upto 6th November, 2006. As per terms and conditions of the VRS, the management of Kendriya Bhandar will have the right to grant or refuse the voluntary retirement to an employee subject to, reasons being recorded in writing. The Petitioner has also applied for VRS on 6th November, 2006 seeking voluntary retirement from 6th January, 2007.

3. Since, the Appointing Authority of CAO is Board of Directors, the matter of the Petitioner with respect to VRS was placed before the Board for their consideration in its meeting held on 13th January, 2007. While considering his application for VRS, the Board decided that the request of the existing CAO may be considered by the Board after the appointment of DGM (F&A) and till then he may be compensated by way of fixed special allowance to the extent of 10% of the total monthly emoluments. Accordingly, he was granted Rs. 1956/- per month and continued to draw the special allowance as approved by the Board till December, 2007.

4. In the meantime, a disciplinary proceeding was contemplated against the petitioner. A memorandum dated 26th June, 2007 requesting the petitioner to explain the allegation that he failed to safeguard the financial interest of the organization and to recover the amount of Rs 86,098/-. A disciplinary proceeding for a minor penalty vide memorandum dated 10th October, 2007 was instituted against him on the recommendation of the CBI and CVC. On conclusion of the said proceedings, a penalty of `Censure' was imposed on petitioner vide order dated 15th April, 2008.

5. Thereafter, he suddenly absented himself from duty w.e.f. 3rd January, 2008 without information or without getting his leave sanctioned. A Memo dated 18th January, 2008 was issued to him directing him to join duties immediately and to explain why the disciplinary action should not be taken against him for unauthorized absence. The Petitioner vide his letter dated 18th January, 2008, received on 22nd January, 2008 informed that he was ill and stated that the period of absence from duty may be treated as Medical Leave though he had already joined some other organization w.e.f. 3rd January, 2008. He also requested to treat this application for VRS along with the earlier application which is pending with the management.

6. In response to his letter dated 18th January, 2008, the Petitioner was informed vide Memorandum dated 23rd January, 2008 to furnish a Medical certificate in support of his illness or report on duty immediately. He was also informed that the Board has already sanctioned him a fixed special allowance to the extent of 10% of the emoluments till the new DGM (F&A) joins Kendriya Bhandar and his application for VRS would be considered by the Board thereafter. He was also informed that recruitment to the post of DGM (F&A) was under pro