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JAMMU AND KASHMIR HIGH COURT BENCH AT SRINAGAR
Sanjeev Kumar, J.
Abdul Jabbar Mir – Appellant
Versus
Union Territory of Jammu And Kashmir & Ors. – Respondents
WP(C) No. 1738 of 2021, CM Nos. 4283 & 6336 of 2021, WP(C) No. 1241 of 2022
Decided On : 16-09-2022
Voluntary Retirement - Jammu & Kashmir Civil Service Regulations - Article 230 - Summary of Acts and Sections: Article 230 of Jammu & Kashmir Civil Service Regulations, 1956 - The judgment discusses the interpretation of Article 230 of the Jammu & Kashmir Civil Service Regulations, 1956, and its relevant notes. It highlights the bilateral nature of the act of giving up office and the requirement for formal acceptance by the employer for voluntary retirement to take effect. The judgment emphasizes the conditions for withdrawal of voluntary retirement request and the consequences of overstayal in service. The court's decision is influenced by the interpretation of these provisions, leading to the setting aside of the impugned order and the restoration of the petitioner's continuous service and post-retiral benefits.
Fact of the Case:
The petitioner, an accountant at Jammu & Kashmir Academy of Art, Culture and Languages (JKAACL), submitted multiple applications for voluntary retirement, but the competent authority did not formally accept or reject the requests. The petitioner was relieved from service with immediate effect on provisional pension, and the payment of gratuity was kept on hold pending a departmental enquiry. The petitioner challenged the order, arguing that it was passed without providing an opportunity to be heard.
Finding of the Court:
The court found that the petitioner's services after the intended date of voluntary retirement could not be considered as overstayal in the absence of formal acceptance of the retirement request by the employer. The impugned order was set aside and quashed, and the petitioner was deemed to be in continuous service until the date of superannuation with all consequential benefits.
Issues: The issues before the court were: (i) whether voluntary retirement requested by an employee from a particular date comes into effect from such date even if not accepted by the competent authority, and (ii) whether the services rendered by an employee beyond the intended date of voluntary retirement can be treated as overstayal in service.
Ratio Decidendi: The court held that voluntary retirement requested by an employee from a particular date does not take effect unless accepted by the employer. The act of submitting a voluntary retirement request is bilateral, and the employee is entitled to complete service until the intended date of retirement if the request is not accepted. The court also emphasized the requirement for holding an enquiry and providing a fair opportunity of being heard before passing an order with serious civil consequences.
Final Decision: The petition was allowed, and the impugned order was set aside and quashed. The petitioner was deemed to be in continuous service until the date of superannuation with all consequential benefits. The respondents were directed to settle the petitioner's pension and release the remaining post-retiral benefits within a specified period.
JUDGMENT
1. The petitioner is aggrieved of and has challenged Academy Order No.06 of 2021 dated 26th August, 2021 in terms whereof the petitioner, an accountant in Jammu & Kashmir Academy of Art, Culture and Languages (JKAACL) was relieved from the service of the Academy with immediate effect on provisional pension with payment of leave salary. The payment of gratuity of the petitioner was, however, kept on hold till conclusion of the departmental proceedings/enquiry, which the JKAACL contemplated to initiate against him separately.
2. Before adverting to the grounds of challenge pleaded and urged by the petitioner to assail the Academy Order No.06 of 2021 dated 26th August, 2021 [' impugned order'], it is necessary to set out few material facts. The petitioner, an accountant, serving in the Divisional Office of the JKAACL at Srinagar submitted an application on 24th September, 2018 for voluntary retirement w.e.f. 30th April, 2019. The request of the petitioner for voluntary retirement was processed by the JKAACL at different levels. Vigilance clearance was obtained by the JKAACL from the concerned quarter and the process was completed in February, 2019. While the competent authority in the JKAACL was yet to take a final decision on the request of the petitioner for voluntary retirement from service w.e.f. 30th April, 2019, the intended date of retirement was over. The petitioner made another application to JKAACL for giving effect to his voluntary retirement from 31st July, 2019. The petitioner did not stop here and taking the benefit of inaction on part of the JKAACL to pass final orders on his two requests made earlier, the petitioner renewed his request by way of 3rd application submitted on 19th November, 2019 seeking his voluntary retirement from service w.e.f. 29th February, 2020.
3. As is apparent from the documents on record, no formal order of acceptance or refusal of the request of the petitioner for voluntary retirement was made by the competent authority in JKAACL. The petitioner continued in service. It was only when the Secretary of JKAACL suddenly found that the petitioner as per his request stood voluntarily retired automatically w.e.f. 30th April, 2019 and had, thus, overstayed in service beyond the said date. He contemplated an enquiry against the petitioner for his unauthorized overstay in service and by way of impugned order relieved the petitioner from the service of JKAACL with immediate effect on provisional pension with payment of leave salary. It is this order, which the petitioner has called in question in the instant petition.
4. The impugned order is assailed primarily on the ground that, though, it ensued serious civil consequences to the petitioner, yet it was passed without providing the petitioner any opportunity of being heard. The short and precise submission made by the learned counsel for the petitioner to sustain challenge to the order impugned is that the voluntary retirement does not take effect from the date intended in the notice of voluntary retirement or any other date till it is formally accepted by the employer. It is contended that respondent No.3 has wrongly assumed that the voluntary retirement of the petitioner became effective from 30th April, 2019 i.e. the intended date given by the petitioner in the written request and, therefore, services rendered to the Academy after such date are unauthorized and is tantamount to overstayal in service.
5. On being put on notice, respondent Nos. 1 to 4 have filed their objections. The challenge laid by the petitioner to the order impugned is contested on the strength of Note 7 to Article 230 of the Jammu & Kashmir Civil Service Regulations Vol. 1, which, as per the respondents is applicable to the employees of JKAACL working at different levels. It is submitted that the petitioner had made a written application for voluntary retirement with 30th April, 2019 as intended date of retirement and, therefore, should be deemed to have been retired fro
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