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Voluntary Retirement To Come Into Force Automatically On Expiry Of Notice Period If Appointing Authority Does Not Deny Permission: Gujarat High Court

Padmakshi Sharma
12 Jun 2022 4:30 AM GMT
Voluntary Retirement To Come Into Force Automatically On Expiry Of Notice Period If Appointing Authority Does Not Deny Permission: Gujarat High Court
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Justice Bhargav D. Karia of the Gujarat High Court has held that in case of voluntary retirement from service, if the appointing authority does not permit or refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. In this case, the petitioner was...

Justice Bhargav D. Karia of the Gujarat High Court has held that in case of voluntary retirement from service, if the appointing authority does not permit or refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.

In this case, the petitioner was appointed for the post of Deputy Engineer at Hemchandracharya North Gujarat University in 1992. He served a notice for voluntary retirement in 2013 upon the University on completion of 20 years of qualifying service. In the said letter the petitioner stated that the petitioner would retire voluntarily w.e.f. 06.01.2014. The Respondent-University did not issue any intimation with regard to any order rejecting or accepting the voluntary retirement of the petitioner. It is the case of the petitioner that as per Rule 48 of the Gujarat Civil Service (Pension) Rules, 2002, the petitioner is deemed to have retired on 06.01.2014 on expiry of the three months' notice period.

Respondent-University, however, issued a charge-sheet levelling various charges against the petitioner after a period of 21 months from the date of voluntary retirement. The petitioner denied all the charges and contended that no charge-sheet can be issued to a retired employee after his date of retirement without fulfilling the condition precedent as per Rule 24 of the Rules,2002. Thus, the petitioner contends that the respondent-authorities are required to process the retirement dues and benefits payable to the petitioner and issuance of charge-sheet and other disciplinary proceedings would be non-est and void as they are initiated after the petitioner has retired from service.

The petitioner referred to the University Non- teaching Staff Conditions of Service (Conduct and Discipline) Ordinance, 1986 and submitted that, Ordinance 147(14) stipulates that the University employee shall be eligible to get the benefit of the various provisions contained in the Voluntary Retirement Scheme of the Government of Gujarat as amended from time to time. Thus, the charge-sheet cannot be issued to the petitioner after the date of the retirement without following the provisions of Rule 24 of the Rules, 2002.

It was submitted that the disciplinary proceedings cannot be continued once the petitioner has retired from service. Reliance was placed upon State of Haryana and ors vs. S.K. Singhal (1999 (4) SCC 293) to submit that voluntary retirement of the petitioner would be an automatic retirement if no reply is communicated to the petitioner for accepting or rejecting the retirement.

Per contra, the Respondent-University submitted that this petition may not be entertained in view of the inordinate and unexplained delay and laches on the part of the petitioner for more than three years. It was submitted that the petition is filed at belated stage and inquiry was initiated against the petitioner and reached at the substantial stage and sufficient material has been found in preliminary inquiry that the petitioner has caused huge loss to the respondent-University while working as Deputy Engineer with the respondent-University.

It was submitted that the Executive Engineer of the respondent-University has passed many resolutions with regard to illegality and irregularity committed by the petitioner and upon an Inquiry Committee formed by the respondent-University, a report has been given which clearly shows that the petitioner in connivance with the other employee has caused huge loss to the respondent-University while he was in service. It was also submitted that though the petitioner was aware about the said inquiry report, the same has not been placed on record and therefore, there is deliberate suppression of the material facts. Further, it was pointed out that the respondent-University has never accepted the application of voluntary retirement.

Here, the court opined that–

"As per proviso to sub-rule (2) of Rule 48 of the Rules, 2002, if the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. Thus, the petitioner having served three months' notice for being retired w.e.f. 06.01.2014 and the same was not refused by the respondent-University, the petitioner is deemed to have retired with effect from the said date."

The court also relied upon the judgement of J.T. Rahti vs. State of Gujarat to establish that–

"…if the appointing authority does not want to permit the employee to voluntarily retire from the effective date, it has to positively refuse to grant permission of retirement before the expiry of the period of three months specified in the notice."

The court found that Rule 2.2 of the Punjab Civil Service Rules, provided for reservation to the Government to withhold or to withdraw pension or any part of it if the employee is alleged to have committed serious crime or is guilty of grave misconduct. However, Rule 2.2 would not obstruct voluntary retirement to come into force automatically on expiry of three months and it only enables withdrawal or withholding of pension subject to certain conditions to a retired employee.

Therefore, the court held that the issuance of charge-sheet for the allegations levelled against the petitioner would be ineffective in the eye of law. The respondent-authorities could not have issued charge-sheet upon the petitioner after his date of retirement as the petitioner cannot be said to be in service on the date of the service of the charge-sheet.

With regard to the contention raised on behalf of the respondent that the petition suffers from delay and laches is concerned, the court found that while it is true that to entertain the writ petition under Article 226 of the Constitution of India delay and laches are relevant factors, it held that–

"…however in the facts of the case when the respondent-University could not have issued the charge-sheet after the petitioner has retired from the service, the delay and laches cannot come in the way of the petitioner as the action of the respondent-University for initiation of the departmental proceedings after voluntary retirement of the petitioner w.e.f. 06.01.2014 would be non-est and null and void from the beginning."

In view of the same, the petition was allowed. The initiation of the departmental inquiry after the voluntary retirement of the petitioner was declared as non-est. The respondent-University was however found at liberty to initiate any appropriate proceedings against the petitioner in view of the inquiry report. The petitioner was also held to be entitled to consequential retirement benefits subject to any proceeding by the respondent-University.

Case Title : Bhupendra Aatmaramdas Patel v. State of Gujarat| C/SCA/7676/2017| 10 June 2022

Coram: Justice Bhargav D. Karia

Citation: 2022 LiveLaw (Guj) 204

Click Here To Read/Download Judgment

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