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Judgment
D. Murugesan,J.
This Writ Appeal is directed against the order of the learned single Judge dated 14.02.2003 made in W.P. No. 15430/1999.
The first respondent herein was employed as Assistant Pathologist in Public Health Laboratory, Health Department, Corporation of Chennai.
According to him, he made an application to the Commissioner, Corporation of Chennai on 30.12.1996 for voluntary retirement from service on
the expiry of three months and on completion of 20 years of service in the appellant Corporation. As per the said letter, he should retire voluntarily
with effect from 1.4.1997. In the mean time, he submitted a letter to the Health Officer, Corporation of Chennai, on 13.01.1997 for grant of
medical leave from 20.1.1997 for a period of 30 days. After availing the medical leave, he submitted a letter on 1.4.1997 for settlement of
retirement benefits. By letter 9.4.1997, the Commissioner, Corporation of Chennai, informed the petitioner that his request for voluntary retirement
was negatived. On the claim that his letter expressing his desire to go on voluntary retirement dated 30.12.1996 was not rejected within a period of
three months and therefore, it should be deemed to have been accepted and the petitioner shall be deemed to be retired voluntarily with effect from
1.4.1997, he approached this Court for a direction to settle and disburse the retirement benefits. The said Writ Petition was allowed. Hence the
present appeal by the Corporation of Chennai.
We have heard Mrs. P. Bagyalakshmi, learned counsel appearing for the appellant Corporation and Mr. S.Sadacharam, learned counsel
appearing for the first respondent and also Mr. V. Raghupathi, learned Government Pleader, appearing on behalf of the 2nd respondent herein.
Mrs. P. Bagyalakshmi, learned counsel appearing for the appellant Corporation had submitted that in terms of Rule 56(3) of the fundamental
Rules, an Officer who intends to go on voluntary retirement should complete 20 years of pensionable service or complete 50 years of age and
should submit an application to the appointing authority directly. She also submitted that to opt for voluntary retirement, no disciplinary proceedings
should either be contemplated or pending against the employee for the imposition of a major penalty and no criminal prosecution should also be
either contemplated or pending in a Court of law. In this case, firstly, the petitioner has not put in 20 years of pensionable service. Secondly, he has
not submitted his application for voluntary retirement directly to the appointing authority who is the Government. Thirdly, disciplinary proceedings
were initiated against the first respondent and the same is pending. Hence, the learned counsel submitted that the petitioner is not entitled to go on
voluntary retirement.
Mr. S.Sadacharam, learned counsel appearing for the first respondent on the other hand, would submit that the first respondent though had
submitted his application to the Commissioner of Chennai corporation, in all fairness, he ought to have forwarded the same to the Government,
viz., the appointing authority. In any case, the application which was submitted on 30.12.1996 was not rejected within a period of three months
and therefore, the first respondent is deemed to have retired from service on the expiry of three months from 30.12.1996.
Fundamental Rule 56(3) introduced in G.O.Ms. No. 350 personnel and Administration Department dated 7.10.1991 reads thus:
a) An employee who had completed 20 years of pensionable service may go on voluntary retirement (or) an officer who had completed 50 years
of age is also eligible to go on voluntary retirement. Hence there are two provisions to an employee to go on voluntary retirement .
b) An employee intending to go on voluntary retirement should give three months notice. Such notice should be sent directly to the appointing
authority with a copy marked to the immediate superior officer. Before such notice, he should write to the office and satisfy himself that he has
completed 20 years of qualifying service.
c) Three months period should be reckoned from the date of receipt of notice by the appointing authority.
d) He can give notice before completing 20 years of service or 50 years of age as the case may be But the date chosen may be after completion of
20 years of service or 50 years of age.
Withdrawal of notice of voluntary retirement
a) The employee who has tendered voluntary retirement may also withdraw the notice before its acceptance.
b) Where orders accepting voluntary retirement have been issued by the appointing authority within the notice period it can also be withdrawn if
application is made by the individual.
Acceptance of voluntary retirement:
a) The appointing authority shall accept the voluntary retirement subject to the following conditions:
(i) That no disciplinary proceedings are pending against the employee for the imposition of a major penalty.
(ii) that no criminal case is pending
(iii)that no vigilance case is pending and vigilance department certifies to that effect
(iv) that dues which cannot be recovered from D.C.R.G. Is outstanding.
(v) that there is no contractual obligation ` ` for him to service till retirement.
(vi) that the individual is not under suspension.
b) After satisfying the above conditions, the appointing authority should issue orders before the date of expiry of the notice time. He can also reject
the notice by informing the employee. If no orders are given, the employee may presume that voluntary retirement has been accepted.
It is the case of the appellant Corporation that the appointing authority of the petitioner is the Government as the petitioner is Class II Officer
and therefore, he ought to have submitted his application to the appointing authority directly. As the first respondent had sent his application only to
the Commissioner, Corporation of Chennai who is not the appointing authority, there was no valid application for consideration by the appointing
authority.
The first respondent had sent a letter dated 30.12.1996 to the Commissioner, Corporation of Chennai and the said letter reads as under:
30th December,1996.
From
Dr.D.Dakshinamoorthy
Assistant Pathologist(Retired)
Public Health Lab
Ripon Buildings,Chennai-3
To
The Commissioner
Corporation of Chennai
Ripon Buildings,Chennai-3.
Through: Proper Channel
Sir,
I beg to bring to your kind notice that due to some unavoidable circumstances in my family I am not able to continue in service and I decided to
retire from service voluntarily with effect from 1st April,1997 and it may be treated as three months notice.
I request you Sir, to kindly permit me to retire from service voluntarily with effect from 1.4.1997.
Thanking You,
Yours obediently,
Sd.x.x.x.x.x.x.x
There is no dispute that the first respondent is Class II Officer. Section 85 of the Madras City Municipal Corporation Act 1919 deals with the
Corporation Establishment. As per sub-section 3(b) of Section 85 of the Act, every appointment to any post included in Class I-A, Class I-B and
Class II shall be made by the council and shall be subject to confirmation by the State Government. Section 86 of the Act contemplates the
conditions of service of Corporation establishment. In terms of the said Section, save as otherwise provided in this Act, the classification, methods
of recruitment, conditions of service, pay and allowance and discipline and conduct of the corporation establishment shall be regulated by the Rules
made by the State in respect of Clause I-A, Class 1-B and Class II Officers.
A combined reading of both the provisions show that insofar as Class II Officers like the first respondent, the appointing authority is the council
and such appointment shall also be subject to confirmation by the State Government. In the event, the State Government do not confirm the
appointment made by the council, such appointment cannot be valid . As a necessary corrolary Class II Officers could be removed from service
though by the council but only with the confirmation of the State Government. Equally, the request for voluntary retirement shall be made by Class
II Officers only to the council and even if voluntary retirement is either accepted or rejected, the same shall be forwarded to the State Government
for further confirmation. Admittedly, in this case, the application of the first respondent has been given to the Commissioner and not to the council
or the Government.
In this regard it must be pointed out that Section 91 of the Act contemplates the roll of the Commissioner and as per this Section, the
Commissioner controls over the Corporation establishment subject to the provisions of the Act and the Rules, by-laws and regulations made for
the time being in force and the Commissioner shall prescribe the duties of the Corporation establishment and exercise supervision and control over
their acts and proceedings. The Commissioner is bound by the provisions of the Act and Rules or by-laws and regulations made thereunder. In the
absence of any power conferred on the Commissioner either to accept or reject the application for voluntary retirement made by Class II Officers,
the application said to have been made by the first respondent to the Commissioner on 30.12.1996, cannot be considered to be a valid
application. Further, it is not the case of the first respondent that he has submitted his application either to the council or to the Government.
Therefore, the deeming provision is not applicable to the facts of this case.
In terms of condition(b) of Fundamental Rule 56(3) an employee intending to go on voluntary retirement should give three months notice and
such notice should be sent directly to the appointing authority with a copy marked to the immediate superior officer. As per Clause (c) of the
condition for voluntary retirement, three months period shall be reckoned from the date of receipt of the notice by the appointing authority. To
invoke Rule 56(3) the application must be sent to the appointing authority directly. In the absence of the same, the employee cannot claim as a
matter of right that his application sent to the other authority must be considered as a valid application. For better understanding of the request of
the first respondent, we have extracted the the application of the first respondent dated 30.12.1996. The first respondent has only forwarded the
letter to the Commissioner and that too through the Health officer. In the absence of any valid application, question of reckoning three months
period to invoke the deeming provision also does not arise. In this context, Clause (c) of the condition is also relevant. As per clause (c), three
months period shall be reckoned from the date of receipt of the notice by the appointing authority. Admittedly, neither the application was
submitted directly to the appointing authority nor it was received by the appointing authority. In the absence of such valid application, the first
respondent cannot claim that he is deemed to have been retired from service with effect from 1.4.1997 on the basis of his application dated
30.12.1996.
In para 5 of the counter affidavit filed by the Commissioner, Corporation of Chennai it is specifically stated that the first respondent has not
submitted his application for voluntary retirement to the appointing authority. There is no denial of the said averment by the first respondent by way
of any reply. Though the above issue was raised before the learned Single Judge, the same was rejected on the ground that the application
submitted to the Commissioner, must be considered to be a valid application. In view of the fact that the appointing authority of the first respondent
is the council and the application submitted to the Commissioner cannot be a valid application, we are not inclined to accept the finding of the
learned single Judge in this regard.
There is yet another hurdle for the first respondent. As per Rule 56(3(b) an officer intends to go on voluntary retirement before sending notice
directly to the appointing authority, he must also write to the Office and satisfy himself that he has completed 20 years of qualifying service. It is not
the case of the first respondent that he has complied with the said condition by writing to the office and satisfy that he has completed 20 years of
qualifying service. Even in the affidavit filed in support of the Writ Petition, he has not even stated the date on which he was appointed and there is
no specific averment that he has completed 20 years of qualifying service. In the absence of the above compliance, the application of the petitioner
dated 30.12.1996 cannot be considered to be valid.
For the foregoing reasons, the Writ Appeal is allowed No costs. Consequently, connected W.A.M.P.Nos. 5450 and 6491/2003 are closed.