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IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, J.
Altaf Hussain Laskar – Appellant
Versus
State of Assam and Ors. – Respondents
W.P.(C) No. 1184 of 2019
Decided On : 10-05-2019
Issue on Voluntary Retirement –Learned senior counsel for the petitioner submits that the aforesaid notice itself indicates that it was issued after the petitioner had retired from service voluntarily and, as such, it will have no effect as far as the right of the petitioner to go on voluntary retirement is concerned – Learned senior counsel for the petitioner submits that if the authorities wish to initiate any departmental enquiry against him, they would be liberty to do so, however, following the due process as contemplated under law made for retired civil servants not for serving employees, as the petitioner cannot be deemed to be under service they may do so in accordance with the law but this may not come in the way of his going on voluntary retirement –Held, In the present case, since he continued to serve on his own volition in spite of the operation of law under which the voluntary retirement would have become effective and for which the petitioner has also paid his remuneration by the authorities, it will be deemed that the he had retired voluntarily –In that view of the matter, this court is of the opinion that the aforesaid show cause notice issued by the authorities will have no effect as far as the validly of his voluntary retirement which came into effect –However, the authorities will be at liberty to proceed against him in accordance with law, if they wish to initiate any departmental enquiry, which however shall be done by treating the petitioner as a retired employee and accordingly follow the necessary procedures prescribed in that regard – Petition allowed
ORDER :
N. Kotiswar Singh, J.
1. Heard Mr. P.K. Tiwari, learned senior counsel for the petitioner. Also heard Ms. S. Chutia, learned standing counsel for the Water Resource Department
2. In this petition the petitioner is seeking for a direction from this Court to he issued to the respondent authority for releasing the petitioner from service with effect from 26.11.2018 as he had already sought voluntary retirement from service by submitting necessary application in that regard.
3. The petitioner was serving as an Executive Engineer in the Silchar Water Resource Division, having entered service in the same Department as an Assistant Engineer on regular basis on the recommendation of the Assam Public Service Commission on 8.9.1986.
Thereafter, the petitioner was promoted to the higher post of Assistant Executive Engineer in the year 28.06.2002 and subsequently, he was promoted to the post of Executive Engineer on 27.06.2014.
4. According to the petitioner as the petitioner was suffering from certain ailments including diabetics and was also getting treated for liver cirrhosis and as he had completed 29 years of service without any blemish, decided to seek voluntary retirement from service and accordingly, submitted an application addressed to the Secretary, Water Resource Department, Govt. of Assam on 28.6.2018.
5. It was mentioned in the said application dated 28.06.2018 that he was seeking voluntary retirement on personal ground and that he did not wish to serve any longer and accordingly requested the authorities to allow to go on voluntary retirement with effect from 1.10.2018.
6. According to the petitioner, though, some process was initiated by the authorities for considering his voluntary retirement, no concrete steps were taken by the authorities because of which the petitioner submitted another application on 11.10.2018 reminding of the earlier application submitted on 28.06.2018 seeking voluntary retirement
7. As the authorities did not pass any order accepting the said application for voluntary retirement the petitioner was compelled to continue in service in spite of his unwillingness to do so.
8. However, as the authorities remain silent on the issue, ultimately the petitioner relinquished his service on his own on 26.11.2018 till which date he had served as an Executive Engineer.
9. The petitioner contends that from the time he submitted his application seeking voluntary retirement on 28.06.2018 till the time he was serving as Executive Engineer on 26.11.2018, the authorities did not issue any order or communication either accepting or rejecting his application.
10. It has been submitted that law is now well settled that upon filing of an application seeking voluntary retirement, if the authorities do not pass any order rejecting the said application within a period of three months as provided under FR 56 (c) as applicable in the State of Assam, it will be deemed that the petitioner's application of the petitioner for seeking voluntary retirement will come into effect after three months.
11. In the present case, the petitioner had submitted his application on 28.06.2018 giving more than the required three months period of notice as the petitioner sought the voluntary retirement to become effective from 1.10.2018.
12. It has been submitted by the learned senior counsel for the petitioner that at no point of time during the aforesaid three months or till 01.10.2018 the authorities did issue any order rejecting his application for seeking voluntary retirement
Learned senior counsel further submits that even during the period of his service on his own volition from 1.10.2018 till 26.11.2018 awaiting appropriate communication from the authorities, the authorities did not issue any order rejecting his application for voluntary retirement
13. Accordingly, it has been submitted that in that view of the above, by operation of law, it will be deemed that voluntary retirement of the petitioner would come into effect from 01.10.2018. However
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