The main legal point established is the deemed acceptance of a government servant's Voluntary Retirement application under F.R. 56(c) if not rejected within the prescribed period, and the jurisdictional error in initiating disciplinary proceedings after such acceptance.

1. Both the writ petitions being connected and filed by the same petitioner, an analogous hearing have been conducted and the same are being disposed of by this common judgment and order.

2. The facts projected by the petitioner are that he was serving as an Anaesthetist in the Health Department and was appointed in the year 1983. In course of his service, he was transferred to the Fakhruddin Ali Ahmed Medical College & Hospital, Barpeta on 28.06.2013. At that time, the petitioner has also faced a Departmental Proceeding which however was closed vide an order dated 25.06.2015 with a penalty of ‘Censure’ being imposed. On 28.12.2017, the petitioner had submitted an application seeking Voluntary Retirement. It is contended that such application was under the provisions of F.R. 56(c). It is the specific case of the petitioner that there was no communication in response to the said application and accordingly by the deeming provision of the aforesaid provision of law, the application for Voluntary Retirement was held to be accepted after expiry of 3 (three) months. Long thereafter, on 27.02.2019, a Show Cause Notice was issued to the petitioner whereby he was directed to submit his statement of defence on the allegations of being unauthorizedly absent. At that stage, the first writ petition being WP (C)/8004/2019 was filed and initially, this Court vide order dated 13.11.2019 had made an observation that the Disciplinary Proceeding would be subject to the outcome of the writ petition. It appears that the Disciplinary Proceeding was accordingly gone ahead in which the petitioner had also participated and the same culminated in an order dated 10.03.2023 whereby the petitioner has been dismissed from service. The aforesaid order dated 10.03.2023 of Dismissal is the subject matter of challenge in the second writ petition being WP (C)/2162/2023.

3. I have heard Shri S. Borthakur, learned counsel for the petitioner. I have also heard Shri D.P. Borah, learned Standing Counsel, Health & Family Welfare Department who submits that affidavit-in-opposition has also been filed on 24.03.2021 in the first writ petition i.e. WP (C)/8004/2019.

4. Shri Borthakur, the learned counsel for the petitioner has submitted that F.R. 56 comes under Chapter IX dealing with Compulsory Retirement. Under F.R. 56 (c), a Government Servant is also given the option to give notice of not less than 3 (three) months in writing to retire from service and there are two alternative conditions attached. Firstly, such Government Servant is required to have attained the age of 50 years or has completed 25 years of service, whichever is earlier. The learned counsel submits that the petitioner fulfills both the requirements and therefore, he was eligible for submitting such an application. The learned counsel submits that the Department never responded to the aforesaid application and therefore, there would be a deemed acceptance of such offer to retire. In this connection, the learned counsel has relied upon the case of Dinesh Chandra Sangma vs. State of Assam and Others, (1977) 4 SCC 441. In the said case, the Hon’ble Supreme Court was dealing with a member of the judicial service who, on fulfilling the conditions under F.R. 56 (c) had submitted for his Voluntary Retirement. It has been held that unless such application is rejected within the specified period of 3 (three) months, the same would be deemed to have accepted.

5. As regards the Show Cause Notice dated 27.02.2019, the learned counsel for the petitioner has clarified that the sole allegation is unauthorized absence since the date of submission of the application for Voluntary Retirement. It is submitted that such action suffers from jurisdictional error as the employer employee relationship was severed on deemed acceptance of the application for Voluntary Retirement dated 28.12.2017 on expiry of the period of 3 (three) months. The learned counsel accordingly submits that the order of penalty of dismissal dated 10.03