HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND HONOURABLE SRI JUSTICE K.G. SHANKAR WRIT PETITION Nos.14777 AND 14813 OF 2009 COMMON ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) W.P. No.14777 OF 2009: This Writ Petition is filed seeking a Writ of Certiorari, calling for the records pertaining to the order, dated 30-07-2008, in O.A. No.348 of 2008 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad. 2. The brief facts of the case are that the respondent was joined as Steno in Central Excise Department on 15-02-1971. Thereafter, he was promoted as Inspector in February 1978 and promoted as Superintendent in the year 1993. The respondent undergone By-pass surgery in the year 2008 and he made an application on 13-02-2008 to the 1st petitioner seeking voluntary retirement with effect from 15-05-2008 by giving three months notice stating that he had completed the requisite qualified service of 30 years as prescribed under Rule 48 of the CCS (Pension) Rules 1972 (for short ‘Rules’). The 2nd respondent rejected the application vide order, dated 05-05- 2008, stating that as major penalty proceedings are under contemplation against the respondent, his request cannot be considered as per Rule 48A of CCS (pension) Rules, 1972. Aggrieved by the same, the respondent filed the O.A. 3. Before the Tribunal, the respondent contended that Rule 48 of the Rules is applicable to the case of the respondent and that Rule 48- A of the Rules is not applicable to the case of the respondent on the ground that he had completed 30 years of qualifying service for seeking voluntary retirement and Rule 38-A is applicable only for those who seek voluntary retirement after completion of 20 years of qualifying service. Only under Section 48-A of the Rules, the Government reserved right to accept or reject the voluntary retirement. Under Rule 48 of the Rules, the Government has no right to reject or accept the voluntary retirement and secondly, the appointing authority can reject to give permission for voluntary retirement, in case the employee, who seeks voluntary retirement, is under suspension or he is on assignments under the Indian Technical and Economic Co- operation programme of the Ministry of External affairs and other aid programmes or he is posted abroad in foreign based officers of the Ministries / Departments. It is further his case that the rejection order is passed by the 2nd petitioner, who is not the appointing authority. 4. The respondents further contended before the Tribunal that the Department is contemplating major penalty disciplinary proceedings and sensed the same the respondent resorted to file an application seeking voluntary retirement and that if it is found that the authority, who passed the rejection order, is not competent to reject the permission, the matter may be remitted to the appointing authority. 5. After hearing both the parties, the Tribunal vide order, dated 30-07-2008, allowed the O.A. by setting aside the rejection order, dated 05-05-2008, and directed the petitioners to treat the respondent as deemed to have been retired with effect from 15-05-2008. Aggrieved by the same, this writ petition is filed. 6. Heard the learned counsel for the petitioners and the learned counsel for the respondent. 7. Learned counsel for the petitioners contends that some irregularities have taken place in the respondents-organization indulging in mis-use of 100% EOU scheme during the period from October 2000 to November 2001, that the role of the officers including the respondent was under investigation by the department, that on 13- 02-2008, the respondent applied for voluntary retirement and the same was rejected by the 2nd petitioner, against which the respondent filed O.A. No.348 of 2008 and the Tribunal allowed the O.A. directing the petitioners to treat the respondent as deemed to have been retired from service with effect from 15-05-2008 by giving liberty to the petitioners to initiate disciplinary proceedings against the respondent with the sanction of the President, and that thereafter the respondent made representations to the Department for settlement of his retirement benefits and as there was no reply, he filed another O.A. No.803 of 2008 against the petitioners before the Tribunal for settlement of his retirement benefits, that the Tribunal allowed that O.A. on 17-003- 2009, at the admission stage, directing the petitioners to settle all the retirement benefits of the respondent within three (3) months from the date of receipt of a copy of that order. 8. It is further contended that pursuant to the order, dated 17-03-2009, of the Tribunal in O.A. No.803 of 2008, the Department was decided to settle the retirement benefits of the respondent and as more than 4 years have been lapsed from the date of offence, it may not be possible to initiate disciplinary proceedings against the respondent under the Rules. It is submitted that Miscellaneous Application No.198 of 2009 in O.A. No.348 of 2008 was filed by the Department in the Tribunal with a prayer to permit it to issue charge sheet to the respondent with the approval of the President, by extending the prescribed limitation period of 4 years. The said application was dismissed by the Tribunal through its order dated 28- 04-2009 by observing that the Tribunal has no such power to extend the limitation prescribed under the Rules and therefore the present Writ Petition is filed. 9. Learned counsel for the respondent, on the other hand, contended that the rejection order was not passed by the competent authority i.e. the appointing authority that the Rule 48-A of the Rules is not applicable to the case of the respondent since he has completed 30 years of service, that the relevant Rule is 48 of the Rules, as such, there are no grounds to interfere with the order passed by the Tribunal. 10. We have perused the order passed by the Tribunal and the material available on record. Rule 48 of the Rules reads as follows: “48. Retirement on completion of 30 years’ of qualifying service (1) At any time after a Government servant has completed thirty years’ qualifying service-- (a) he may retire from service, or (b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension: Provided that:- (a) a Government servant shall give a notice in writing to the appointing authority atleast three months before the date on which he wishes to retire; and (b) the appointing authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three month’s pay and allowances in lieu of such notice: Provided further that where the Government servant giving notice under clause (a) of the preceding proviso is under suspension, it shall be open to the appointing authority to withhold permission to such Government servant to retire under this rule: Provided further that the provisions of clause (a) of this sub-rule shall not apply to a Government servant, including scientist or technical expert who is – (i) on assignments under the Indian Technical and Economic Co-operation (ITEC) Programme of the Ministry of External Affairs and other aid programmes, (ii) posted abroad in foreign based offices of the Ministries/departments. (iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year. (1-A) (a) A Government servant referred to in clause (a) of the first proviso to sub-rule (1) may make a request in writing to the appointing authority to accept notice of less than three moths giving reasons therefor. (b) On receipt of a request under clause (a) the appointing authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of ht period of notice will not cause any administrative inconvenience, appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. (2) A Government servant, who has elected to retire under this rule and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority: Provided that the request for withdrawal shall be within the intended date of his retirement. (3) For the purpose of this rule the expression appointing authority shall mean the authority which is competent to make appointments to the service or post from which the government servant retires.” 11. Admittedly, the respondent completed 30 years of service by the time he applied for voluntary retirement. Therefore, Rule 48 of the Rules attracts to his case. Under the provisos also, for rejection of his case, none of the above mentioned provisos are applicable to the case of the petitioner. Further, the respondent is not under suspension at that relevant point of time. The only reason given by the petitioners, while rejecting the request of the respondent, is that the department is contemplating to initiate disciplinary proceedings against the respondent in a case relating to mis-use of 100% EOU Scheme, which resulted in evasion of Central Excise Duty to a tune of Rs.49.60 Crores during the period from October 2000 to November 2001. 12. Rule 48-A of the Rules is applicable only to those persons, who wanted to retire on completion of 20 years of qualifying service. Further, the petitioners have already settled the part of the retirement benefits of the respondent pursuant to the orders passed by the Tribunal in O.A. No.803 of 2008, dated 17-03-2009. Therefore, we are of the opinion that the Tribunal has given cogent and convincing reasons in its order and we do not find any valid reasons to interfere with the same. 13. Accordingly, the Writ Petition is dismissed. W.P. No.14813 OF 2009: 14. This Writ Petition is filed seeking a Writ of Certiorari, calling for the records pertaining to the order, dated 17-03-2009, in O.A. No.803 of 2008 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad. 15. The respondent filed O.A. No.348 of 2008 against the rejection order passed by the Additional Commissioner, on an application filed by the respondent seeking permission for voluntary retirement. The Tribunal allowed the O.A. and directed the respondents therein to treat the respondent as deemed to have been retired from service. Pursuant to that order, the respondent filed representations before the petitioners for settlement of his retirement benefits. As there was no response from the petitioners, he filed another O.A. No.803 of 2008 before the Tribunal. Subsequently, the Tribunal allowed the O.A. by its order, dated 17-03-2009, observing that so far judicial proceedings have not been initiated against the respondent and that mere contemplation of major penalty proceedings against the respondent is not a ground to withhold his retirement benefits and directed the petitioners to settle the retirement benefits of the respondent within a period of three (3) months from the date of receipt of a copy of that order. Pursuant to the order, dated 17-03- 2009, passed by the Tribunal in O.A. No.803 of 2008, the petitioners are decided to settle the retirement benefits of the respondent and that the respondent was partly paid GPF, Gratuity and other pensionary benefits, and that thereafter they filed M.A. No.198 of 2009 in O.A. No.348 of 2008 seeking permission to issue charge sheet to the respondent with the approval of the President by fixing time. That application was dismissed by the Tribunal on 28-04-2009. Hence, the present writ petition is filed. 16. W.P. No.14777 of 2008 filed against the order, dated 30-07-2008, in O.A. No.348 of 2008 passed by the Tribunal was dismissed and while allowing the O.A., the Tribunal directed the petitioners to treat that the respondent was deemed to be retired from service with effect from 15-05-2008. Through the order in O.A. No.803 of 2008, which is impugned in this writ petition, the Tribunal directed the petitioners to settle the retirement benefits of the respondent. Since the petitioners complied the said order in part, we do not find any valid reasons to interfere with the impugned order. 18. Accordingly, the Writ Petition is dismissed. However, the petitioners are directed to settle the total retirement benefits of the respondent within two (2) months from the date of receipt of a copy of this order. 18. There shall be no order as to costs. ___________________ GHULAM MOHAMMED, J June 23, 2011. __________________ K.G. SHANKAR, J KTL