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TMI Blog2003 (2) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... eave. Even before the leave could be sanctioned Respondent No. 3 leaves India and goes to England. From England he again applies for further leave. Leave is sanctioned till 10th January, 1992. Respondent No. 3 is informed that no further extension would be granted even on medical grounds. Respondent No. 3 still does not join duty. He then sends in, on 30th June, 1992, an application for voluntary retirement. However, on 19th July, 1992, he sends a telegram withdrawing his application for voluntary retirement. As Respondent No. 3 continues to remain absent he was charge-sheeted on 14th January, 1993. On 12th April, 1993 he reports for duty in the Office of the D.G.P., Punjab. On 5th May, 1993 he again applies for voluntary retirement with immediate effect. He deposits ₹ 30,870/- in lieu of three months' advance notice. Respondent No. 3 does not even wait for his application to be accepted. He again goes away abroad. As Respondent No. 3 had applied for voluntary retirement DGP, Punjab recommends that the charge-sheet against him be withdrawn. On 27th September, 1993 the Government of India rejects the request for voluntary retirement on the ground that three months' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 3 again requests the Government of India to allow him to withdraw his application for voluntary retirement. Surprisingly, on 14th August, 1997, the Government of India accepts the request of Respondent No. 3 for withdrawal of voluntary retirement. At this stage it must be mentioned that documents brought on record show that between the period 15th March, 1996 and 12th August, 1997 Respondent No. 3 took up employment with a foreign firm by name M/s. California Designs and Constructions Inc. and represented the firm, as its director, before various departments of the Government of Punjab and the Government of Haryana. It is being assumed that Respondent No. 3 concealed this fact from the Government of India and that the Government of India accepted his request for withdrawal of voluntary retirement in ignorance of this fact. The Appellant therefore approached the Central Administrative Tribunal against re-induction of Respondent No. 3 into service. The Appellant claims that by such re-induction his seniority in the cadre gets affected. The Government and Respondent No. 3 contested the application. Before the Central Administrative Tribunal it was urged that the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Annexure R1/26 to R1/29 to show that between 1995 and 1997, Shri R. K. Sharma had actively represented M/s. California Design and Construction INC for the purpose of award of contract for construction, erected and commission of ten sewage treatment plants under Yamuna Action Plan. He also filed C.M. No. 27491-92 of 2000 in C.W.P. No. 6461 of 1998 for placing on record additional affidavit dated 18.11.2000 and documents Annexure R3/26 to R3/29, C. M. No. 28355-56 of 2000 was also filed on behalf of Shri R. K. Sharma for placing on record his affidavit dated 27.11.2000 and documents Annexures P35 to P40 to show that he was no longer Director of M/s. California Designs and Constructions India Ltd. We may also mention that while hearing C.W.P. No 14542 of 2000 filed by M/s California Design and Construction India Ltd. for quashing the action taken by the Income-tax authorities to recover tax from the payment made to it by the Government of Haryana, counsel representing the petitioner in that case had produced a copy of the agreement entered into between his client and the State of Haryana which was signed by Shri R.K. Sharma on behalf of the petitioner-company as its director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted due to want of jurisdiction. The Writ Petitions were accordingly allowed. The High Court however directed that disciplinary proceedings be held against Respondent No. 3. Even though, on 10th September, 1998 a statement had been made that Respondent No. 3 would not claim seniority over the Appellant, the High Court in the impugned Order has held as follows: In the result, the writ petitions are allowed. Order dated 3.2.1998 passed by the Tribunal is set aside. This shall be subject to the direction that Shri R. K. Sharma shall not be assigned seniority over Shri P. Lal and other officers, who had been promoted during his absence from duty till the government takes a comprehensive decision on the allegations of his absence from duty, going abroad without prior permission, taking up employment with a foreign company and joining the Board of Directors of a company registered in India and he is exonerated in the departmental enquiry, if any, held in these matters. Thus now the High Court has left it open for Respondent No. 3 to claim seniority if he is exonerated in the departmental enquiry or if the departmental enquiry is dropped. As is being set out hereinafter there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government struck off the name of the answering respondent from the Punjab IPS Cadres Gradation List. iii) No salary given to answering respondent during the period 5.5.1993 to 18.8.1998. iv) Eight letters issued from 26.6.1995 to 4.4.1997 by State Government declaring answering respondent has retired from service. (emphasis supplied) It is further submitted that the answering respondent on the basis of sequence of events and conduct of parties was compelled to believe that his employment in a private organization would not violate any rules as he had been retired by the State Government. Accordingly, the State Government or for that matter the petitioner cannot have any grievance on that account and are estopped from making such reckless allegations. The Appellant has now produced a letter dated 15th March, 1996 addressed by Respondent No. 3 as a Director of M/s. California Design and Construction INC. to the Superintendent Engineer to the Public Health Circle, Faridabad. This shows that even on 15th March, 1996 Respondent No. 3 was a director of this foreign firm. His statement of oath before this Court that he took employment with effect from 28th March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 it was found that the power to relieve an officer from service rests with the Government of India and not with the Government of Punjab. It was stated that it was found that the Order dated 23rd January, 2002 was without jurisdiction and deserved to be withdrawn and was therefore withdrawn. It was stated that the subsequent order was passed after obtaining legal advice. The reasoning given is entirely untenable. The effect of the order of the Central Administrative Tribunal was that Respondent No. 3 ceased to be in service. Respondent No. 3 was not being relieved by Order dated 23rd January, 2002. The Order dated 23rd January, 2002 merely informed Respondent No. 3 that he had ceased to be in service. In any event, in view of the stay order, Respondent No. 3 could not have been given a posting order. By an Order dated 24th May, 2002, the posting order of R. K. Sharma has been held in abeyance pending decision in these Appeals. But Respondent No. 3 is still allowed to continue in service in breach of an interim order of this Court and in violation of the order of the Central Administrative Tribunal. One last fact which requires to be mentioned is that as per the direction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... windfall by hoping that Respondent No. 3 would not be in service. Mr. Jethmalani submitted that the Appellant is not a person aggrieved in as much as he has no real right to claim seniority over Respondent No. 3. He submitted that the Appellant has not been deprived of anything. He submitted that in any event the Appellant's complaint that his seniority would be affected, has been protected and, therefore, the Appellant can no longer have any complaint regarding seniority. We are unable to accept the submissions of Mr. Jethmalani. As has been pointed out hereinabove, against the portion of the impugned judgment which held that the Appellant had locus and that the Central Administrative Tribunal had jurisdiction, Respondent No. 3 had filed a Special Leave Petition. That has been dismissed by this Court on 10th December, 2000. It is therefore not open to Respondent No. 3 to again raise these contentions. These findings in the impugned judgment have become final as against Respondent No. 3. Even otherwise, we see no substance in these submissions. Section 3(q) of the Administrative Tribunals Act defines service matters as follows: (q) service matters , in relation to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... severance. He submitted that unless and until the employer takes some positive action and severes the relationship of master and servant the same would continue. He further submitted that an IPC Officer is appointed by the President of India. He submitted that the appointment is notified in the official Gazette and thus the removal can only be accomplished in a similar manner i.e. by a Presidential Order duly notified in the Official Gazette. He submitted that mere notings in the official files or mere administrative orders do not have the effect of severing the relationship of master and servant. Mr. Jethmalani submitted that even if it is held that acceptance of a voluntary retirement need not be by a Presidential Order duly notified in the Gazette, even then the relationship of master and servant would not come to an end unless and until there is effective communication of the order accepting the request for voluntary retirement. He submits that a termination would take place automatically on the happening of a particular situation, for example absence from office, abundant of service etc. only if there is a specific rule which so provides. He submitted that in the absence of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30 years of service or attained 50 years of age and therefore sub-rule (2) would not have been applicable. He submitted that under sub-rule (2A) the notice for voluntary retirement would not take effect until it was accepted by the Central Government. He submitted that acceptance could only take place if there was effective communication of the acceptance. Mr. Jethmalani relied upon the case of Shambhu Murari Sinha v.Project Development India reported in (2000) 5 SCC 621. In this case the question was whether it is open to a person having exercised the option of voluntary retirement to withdraw his application before it is made effective. Relying upon earlier Judgments of this Court, it was held that the voluntary retirement, in spite of its acceptance, can be withdrawn before the effective date. Mr. Jethmalani also relied upon the case of Bank of India v. O. P. Swarnakar reported in (2002) 9 SCALE 519 wherein also it is held that a request for voluntary retirement can be withdrawn before it becomes effective. He submitted that the Government's Order dated 2nd March, 1995, accepting the request for voluntary retirement, had not been communicated to Respondent No. 3. He s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed address of the petitioner where he was not found available. It appears that the petitioner intentionally had given wrong address. The acquittance of voluntary retirement was duly published in the news-papers. There is no requirement/practice to get the order of retirement published in the official Gazette. (emphasis supplied) Mr. Jethmalani submitted that it was for the Government of India to decide whether or not to condone absence from duty. He submitted that Respondent No. 3 was a very good officer who had had an unblemished record. He submitted that there was nothing wrong in the Government of India condoning minor lapses on the part of such a good officer and retaining him in service. Mr. Jethmalani submitted that as the Government of India desired to retain the services of such a good officer and as Respondent No. 3 now had only 2 more years of service left, this Court should not pass any adverse order. Mr. Jethmalani also suggested that Respondent No. 3's stay abroad and work with the foreign firm were part of an assignment given to him. He suggested that it is for this reason that the Government of India was bound to regularise leave and retain Respondent No. 3 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was communicated to Respondent No. 3. It must be remembered that Rules 16(2) and 16(2A) enable a member to retire from service on giving the required notice. Once such a notice is given it merely has to be accepted by the Government of India. The moment it is accepted the retirement would become effective. If any other view is taken it would lead to absurd results. Such a view would mean that even though a member had given a notice for voluntary retirement stopped attending office and/or gone away abroad and/or taken up some other employment after a number of years of absence the member could claim to come back into service because the Government, for some unforeseen reasons, had not communicated its acceptance. Taken to its absurd length such a member could after superannuation claim that, as the services were not terminated, he was entitled to pension and gratuity on the basis that he had continued in service. The requirement of communication of acceptance would only arise in cases where, even after giving of a notice of voluntary retirement the member continues to work/perform his duties. In such cases the member would need to know from what date he can stop attending office. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal. In this view of the matter the impugned Judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restored. Mr. Gupta had raised various other submissions. In the view that we have taken it is not necessary to set out or deal with those submissions. Accordingly the Appeals are allowed with costs. In view of what has happened in the past it needs to be clarified that Respondent No. 3 has ceased to be in Government service with effect from May 1993 in the rank/position that he then held. There is now no necessity of issuing an order terminating his service. All that is required is correction of official record if they purport to show that Respondent No. 3 has continued in service. So far as Respondent No. 3 is concerned, this Judgment and Order of Central Administrative Tribunal are notice to him that his request for voluntary retirement dated 5th May, 1993 has taken effect from May, 1993. It goes without saying that with effect from May 1993 Respondent No. 3 would not be entitled to any pay or any other consequential benefits. It is expected that if any pay and/or benefits have been given to him th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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