Allowed

Altaf Hussain Laskar v. the State of Assam and 2 Ors.

Gauhati HC10 May 2019WP(C)/1184/2019

Case brief

AI extract

What is this about?

The Gauhati High Court held that an employee seeking voluntary retirement is deemed to have retired if the authority does not reject the application within three months under FR 56(c). The court deemed the petitioner retired with effect from 27.11.2018 and ruled that subsequent show cause notices must be treated under retirement procedures while preserving entitlement to provisional pension.

What did the court decide?

Petitioner deemed to have retired voluntarily with effect from 27.11.2018; show cause notice issued on 21.02.2019 will have no effect as far as validity of retirement is concerned; Liberty to authorit

Altaf Hussain Laskar Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010037832019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 1184/2019

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1:ALTAF HUSSAIN LASKAR

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S/O- LATE MOHIBUR RAZA LASKAR, R/O- TARANI ROAD, H NO. 57, RANGIRKHARI, P.O- SILCHAR, DIST- CACHAR, ASSAM, PIN- 788005

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VERSUS

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1:THE STATE OF ASSAM AND 2 ORS

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THROUGH THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM, WATER RESOURCES DEPTT, DISPUR, GUWAHATI- 781006

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2:THE SECRETARY TO THE GOVT OF ASSAM WATER RESOURCES DEPTT DISPUR GUWAHATI- 781006

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3:THE CHIEF ENGINEER WATER RESOURCES DEPTT ASSAM CHANDMARI GUWAHATI- 78100

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Advocate for the Petitioner : MR. P K TIWARI

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Advocate for the Respondent : SC, WATER RESOURCE

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BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH

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ORDER

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Date : 10-05-2019

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Heard Mr. P. K. Tiwari, learned senior counsel for the petitioner. Also heard Ms. S. Chutia, learned standing counsel for the Water Resource Department.

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In this petition the petitioner is seeking for a direction from this Court to be 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.

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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 08.09.1986.

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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.

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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 28.06.2018.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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any order rejecting his application for seeking voluntary retirement.

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Learned senior counsel further submits that even during the period of his service on his own volition from 01.10.2018 till 26.11.2018 awaiting appropriate communication from the authorities, the authorities did not issue any order rejecting his application for voluntary retirement.

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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, since the petitioner continued to serve till 26.11.2018, for which he had been paid the necessary remuneration, the voluntary retirement can be treated to have become effective from 27.11.2018.

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In this connection, learned senior counsel for the petitioner has relied on the decision by this Court rendered in case Kshirod Ch. Baruah Vs. The State of Assam and Ors 1995 (3) GLT 507 , in which this Court held that:

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“4. The authority wants to stop this offer of voluntary retirement on the ground that is to be accepted by the competent authority. The law on this point has been settled by a decision of the Supreme Court reported in AIR 1978 SC17 (Dinesh Chandra Sangma – Vs – State of Assam and Ors.) wherein paragraph 13 it has been stated as follows:

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“F.R. 56 is one of the statutory rules which binds the Government as well as the Government servant. The condition of service which is envisaged in R.56 (c) giving an option in absolute terms to a government servant to voluntarily retire with three months previous notice, after he reaches 50 years of age or has completed 25 years of service, cannot therefore be equated with a contract of employment as envisaged in Expl.2 to R. 119.”

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So, once this option is exercised by the employee, the question of not accepting it by the authority does not arise. In that view of the matter, the petitioner’s voluntary retirement shall be deemed to be effective from 3.5.86 and the petitioner shall be entitled to all the pensionary benefit as available to him from that date and Annexure-VII, dated 26.4.93 shall not be a bar for giving pensionary benefit in accordance with the rules as the petitioner shall be deemed to go on voluntary retirementfrom that date.

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The Hon’ble Supreme Court had held in Dinesh Chandra Sangma Vs. State of

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Assam and Others (1977) 4 SCC 441, as follows :

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“13. F.R. 56 is one of the statutory rules which binds the Government as well as the Government servant. The condition of service which is envisaged in Rule 56 (c) giving an option in absolute terms to a Government servant to voluntarily retire with three months’ previous notice, after he reaches 50 years of age or has completed 25 years of service, cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119.

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The appellant has voluntarily retired by three months’ notice, not in accordance with an express or implead term of his contract of employment, but in pursuance of a statutory rule. Explanation 2 to Rule 119 makes no mention of retirement under a statutory rule and hence the same is clearly out of the way. The submission that Rule 119 is super-imposed on F. R. 56 has no force in this case.

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The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F. R. 56 (c). Since the conditions of F. R. 56 (c) are fulfilled in the instant case, the appellant must be held to have lawfully retired as notified by him with effect from August 2, 1976.”

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Accordingly, it is submitted that in the present case, the petitioner may be deemed to have voluntarily retired from service with effect from 27.11.2018.

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Learned senior counsel for the petitioner further submits that after filing of this petition, the authorities has issued a show cause notice purportedly in exercise of Rule 9 of the Assam Services Disciplinary Appeal Rules, 1964 which is dated 21.02.2019, seeking to initiate certain inquiry against the petitioner.

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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.

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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 after 27.11.2018, and since the notice was issued on 21.02.2019, they may do so in accordance with the law but this may not come in the way of his going on voluntary retirement.

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Learned Additional Advocate General for the respondent has, however, submitted that since the authorities has not passed any order till date, allowing his application to go on voluntary retirement, he shall be deemed to be under service and accordingly, he has to face the enquiry which has been initiated by the authorities.

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Heard learned counsels for the parties and perused the materials on record.

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As far as the law is concerned, it is now well settled that that if any employee seeks to go on voluntary retirement and submits an application by submitting to the competent authority, unless rejected by the competent authority within a period of three months from the date of application or the date which has been chosen by the employee to be the effective date of voluntary retirement, the voluntary retirement sought will be deemed to come into operation on the expiry of three months or the date chosen by the employee after expiry of three months of the date of submission of application.

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In the present case, the petitioner had specifically sought 1.10.2018 as the effective date for going on voluntary retirement after submitting the application on 28.06.2018.

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Since the authorities had not issued any order rejecting the said application of the petitioner, the petitioner would be deemed to have voluntarily retired from service with effect from 1.10.2018.

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However, since the petitioner continued to serve beyond the aforesaid period i.e. 1.10.2018, and he has not recalled his application, the voluntary retirement would become

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effective from the date when he ceases to serve.

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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 from 1.10.2018 and for which the petitioner has also paid his remuneration by the authorities, it will be deemed that the he had retired voluntarily with effect from 27.11.2018.

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In that view of the matter, this court is of the opinion that the aforesaid show cause notice issued by the authorities on 21.02.2019 will have no effect as far as the validly of his voluntary retirement which came into effect on 27.11.2018. 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.

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It is goes without saying that the petitioner would be entitled to retiral and pensionary benefits. However, it is made clear that even if there be any departmental enquiry initiated against the petitioner, he would be entitled to provisional pension.

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With the above observations and directions, the present petition stands allowed.

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JUDGE

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Comparing Assistant

Altaf Hussain Laskar v. the State of Assam and 2 Ors.

Case brief

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Altaf Hussain Laskar v. the State of Assam and 2 Ors.

Case brief

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