Allowed

K.Piyoose v. Addl.D.I.G.P.,C.R.P.F.& Others

Kerala HC5 Oct 2009WP(C)/6727/2009

Case brief

AI extract

What is this about?

A CRPF office superintendent challenged an order rejecting his request to withdraw an accepted notice of voluntary retirement. The court held that refusal requires valid reasons and set aside the impugned order.

What did the court decide?

The impugned order rejecting the withdrawal request was set aside. The first respondent is directed to take a fresh decision within two months after giving notice to the petitioner.

K.Piyoose Vs Addl.D.I.G.P.,C.R.P.F.& Others — Service and Employment | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.GIRI

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MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931

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WP(C).No. 6727 of 2009(I)

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------------------------------------

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PETITIONER:

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-------------------

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K.PIYOOSE, OFFICE SUPERINTENDENT, GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, PALLIPPURAM, THIRUVANANTHAPURAM.

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BY ADVS. MR.G.SASIDHARAN CHEMPAZHANTHIYIL, MR.S.VISHNU.

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RESPONDENTS:

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------------------------

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1. DEPUTY INSPECTOR GENERAL OF POLICE, GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, PALLIPPURAM, THIRUVANANTHAPURAM.

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2. DEPUTY INSPECTOR GENERAL OF POLICE, PALLIPPURAM RANGE, CENTRAL RESERVE POLICE FORCE, PALLIPPURAM, THIRUVANANTHAPURAM.

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3. INSPECTOR GENERAL OF POLICE, SOUTHERN SECTOR, CENTRAL RESERVE POLICE FORCE, HYDERABAD.

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4. DIRECTOR GENERAL, CENTRAL RESERVE POLICE FORCE, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003.

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R1 TO R4 BY MR.T.SANJAY, C.G.C.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). NO.6727/2009-I:

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P.1: COPY OF THE REQUEST DTD. 15/11/2008 TO THE R.1.

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EXT.P.2: COPY OF THE OFFICE ORDER NO. T.IX.7/2008.GC ESTT.III DTD. 15/11/2008 ISSUED BY THE R.1.

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EXT.P.3: COPY OF THE OFFICE ORDER NO. C.III-1/08-CC DTD.05/01/2009 ISSUED BY THE R.1.

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EXT.P.4: COPY OF THE RELIEVEMENT ORDER NO. T.IX.4/09-OPS-DA-5 DTD. 05/02/2009.

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EXT.P.5: TRUE SUBMISSION DTD. 19/02/2009 TO THE R.1.

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EXT.P.6: COPY OF THE OFFICE ORDER NO. P.III-1/2009-PEN DTD. 28/02/2009 ISSUED BY THE R.1.

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EXT.P.7: COPY OF THE JUDGMENT DTD. 19/02/2007 IN W.P.(C).NO.4495/2007 OF THIS HONOURABLE COURT.

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EXT.P.8: COPY OF THE JUDGMENT DTD. 26/09/2007 IN W.P.(C).NO.16876/07 OF THIS HONOURABLE COURT.

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EXT.P.9: COPY OF THE COMMUNICATION NO. J.II 12/2007EC II (PC) (1) DTD. DECEMBER, 2007 ISSUED BY THE ADDL. DIGP, GC, CRPF, PALLIPURAM.

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RESPONDENTS' EXHIBITS:

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EXT.R1.A: COPY OF THE NOTICE DTD. 15/11/08 ALONG WITH UNDERTAKING OF THE PETITIONER.

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EXT.R1.B: COPY OF THE ORDER DTD. 05/01/2009.

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EXT.R1.C: COPY OF THE LETTER DTD. 05/02/09.

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EXT.R1.D: COPY OF THE NOTICE DTD. 01/12/06 FOR VOLUNTARY RETIREMENT SENT BY THE PETITIONER.

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EXT.R1.E: COPY OF THE ORDER ISSUED BY DIG OF POLICE OF CRPF DTD. 24/05/07.

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EXT.R1.F: COPY OF THE JUDGMENT DTD. 26/09/07 IN W.P.16876/07.

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EXT.R1.G: COPY OF THE ORDER DTD. 13/09/07 ISSUED BY THE DIG OF POLICE OF CRPF.

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EXT.R1.H: COPY OF THE RULE 48 (2) OF THE CCS (PENSION) RULES, 1972.

//TRUE COPY//

P.S. TO JUDGE.

Prv.

V.GIRI, J.

W.P.(C) No.6727 of 2009

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Dated this the 5^th day of October, 2009

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JUDGMENT

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The petitioner, an office

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Superintendent, in the Central Reserve Police, Pallippuram, was detained for temporary duty in Delhi in November, 2008. He had, by the time, completed more than 35 years of service, having entered service on 9.12.1971. He submitted Ext.P1 request for permission to voluntarily retire from service. He was then relieved of temporary duty and directed to report before the Directorate at New Delhi. He complied with the same and by Ext.P3, he was intimated that his notice for voluntary retirement from service as per Ext.P1 has been accepted with effect from 1.3.2009. While so, he was relieved of temporary attachment from Delhi by order dated 5.2.2009, presumably because his stint at Delhi had come to an end. He submitted Ext.P5 application for withdrawal of Ext.P1 notice. This was rejected under Ext.P6 order and the same has been challenged in this writ petition.

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W.P.(C)No.6727 of 2009

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:: 2 ::

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A detailed counter affidavit has been filed on behalf of the respondents, inter alia, pointing out that an earlier application filed by the petitioner for voluntary retirement from service had been rejected and he had approached this court on more than one occasion, pursuing his request for voluntary retirement. This was in the year 2007. He had then submitted a petition for voluntary retirement in the wake of an allegation of sexual harassment levelled against him. Ultimately, the disciplinary proceedings relatable to the said allegations ended in an order of punishment barring two increments without cumulative effect (though the earlier judgment referred to the same as with cumulative effect, Ext.R1(g) order shows the punishment of barring of two increments without cumulative effect, at any rate, the quantum of punishment is not very particular).

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The respondents referred to Exts.P7 and P8 judgments and contend that it

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W.P.(C)No.6727 of 2009

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:: 3 ::

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was the petitioner, who pursued his request for voluntary retirement from service and it is, therefore, that he submitted Ext.P1 application afresh for voluntary retirement from service and no reasons have been given by him for withdrawing his request, after it had been accepted. There are no change of circumstances, which would justify the withdrawal of his request for voluntary retirement from service on the part of the petitioner, it is contended.

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A reply affidavit has been filed

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by the petitioner. I heard counsel on either side.

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Learned counsel for the petitioner submits that the relevant rule for withdrawal of the request for voluntary retirement from service is contained in Rule 43(c)(iv) of the CRPF Rules. The same reads as follows:

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“A notice of retirement may be withdrawn with the approval of the appointing authority, provided the request for such withdrawal is made

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W.P.(C)No.6727 of 2009

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:: 4 ::

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before the expiry of the period of notice.”

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He points out that the same rule has been considered by the Supreme Court in Balram Gupta v. Union of India {1987(Supp) SCC 228}. The following portion of the judgment of the Supreme Court is particularly referred to:

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“Learned counsel appearing for the appellant contended before us that this rule was bad as violative of the Fundamental Rights of citizens. Challenge to the rule was however not made before the High Court on this ground. He, however, contended that if the rule be read as consistent with the constitutional requirements of reasonableness which is well accepted rule of construction, then the government could not withhold approval to the withdrawal of resignation without any rhyme or reason. The counter affidavit filed in this proceeding by Shri Majgoankar, who is respondent 2 in this appeal reveals very little as to why the sanction was withheld. It is stated in paragraph 5 of the said affidavit that it was not in the knowledge of the respondent as to what prompted the appellant to request the withdrawal. What is important in this connection to be borne in mind is not what prompted the

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W.P.(C)No.6727 of 2009

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:: 5 ::

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desire for withdrawal but what is important is what prompted the government from withholding the withdrawal. In this respect the government affidavit certainly lacks candour.”

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In the present case, Ext.P6 shows

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that the appointing authority was concerned with the question as to whether there is any substance in the reason put forward by the petitioner for withdrawing his request for voluntary retirement from service. It was found as a fact that there are no change of circumstances, which should legitimately persuade the petitioner to change his mind and to withdraw his request for voluntary retirement. Ext.P6 does not contain a finding by the appointing authority that there are valid reasons, which stand in the way of the appointing authority, accepting the petitioner's request for withdrawal of voluntary retirement.

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Learned counsel for the

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respondents submits that it is a settled rule of interpretation that nothing should be read

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W.P.(C)No.6727 of 2009

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:: 6 ::

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into the statute, nor should anything be excluded therefrom. He submits that the interpretation that the approval for withdrawal of the request for voluntary retirement from service must be supported by specific reasons, would tantamount to adding words to the statutory provisions.

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I do not agree. The words “approval of the appointing authority” signifies that the authority must exercise its jurisdiction in a fair and reasonable manner. The guidelines laid down in paragraphs and 12 and 13 in Balram Gupta, assume significance. As to dealing with the request for withdrawal of voluntary retirement from service, since there is a direct authority of the Supreme Court considering almost the same rule, I am bound by the same and going by the parameters laid down by the Supreme Court in Balram Gupta, Ext.P6 is liable to be found as unsustainable.

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W.P.(C)No.6727 of 2009

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For all these reasons, Ext.P6 is set aside. The first respondent shall take a fresh decision on Ext.P5, in accordance with law and keeping in mind the dictum laid down by the Supreme Court in Balram Gupta's case, after notice to the petitioner, within two months from the date of receipt of a copy of this judgment.

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Writ petition is disposed of as

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above.

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Sd/- (V.GIRI) Judge

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sk/

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//true copy//

K.Piyoose v. Addl.D.I.G.P.,C.R.P.F.& Others

Case brief

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K.Piyoose v. Addl.D.I.G.P.,C.R.P.F.& Others

Case brief

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