Union of India and The Divisional Personnel Officer, South-Western Railways, Mysore Division vs Sri M. Bhanuprasad

Mohan M. Shantanagoudar, J.—The order of Central Administrative Tribunal, dated 1.3.2.010 in O.A. No. 372/2009, is called in question in this writ petition. The records reveal that the respondent herein who was working as a Clerk with South-Western Railways tendered his application for voluntary retirement after 20 years of service on 25.7.2007 seeking voluntary retirement w.e.f. 10.8.2007 without requesting to waive of the notice period. On receipt of such application for voluntary retirement dated 25.7.2007, the employer treated the said application as three months'' notice and instructed the respondent that three months'' notice period will be counted from 25.7.2007, which means that the petitioners have intimated the respondent that his application for voluntary retirement is treated as three months'' notice as contemplated under Rule 67 of Railway Services (Pension) Rules, 1993 (''Rules'' for short).

The respondent having waited for three months from 25.7.2007, made an application on 25.10.2007 intimating the petitioners that he will not be attending duties from 26.10.2007. By the very letter dated 25.10.2007, the respondent requested the petitioners to settle all the pensionary benefits. Since the pensionary benefits are not accorded, he approached Central Administrative Tribunal in O.A. No. 372/2009, which came to be allowed by the impugned order.

Admittedly, the application for voluntary retirement is filed by the respondent on 25.7.2007. Under Rule 67 of the Rules, three months'' notice has to be given in writing to the appointing authority requesting the appointing authority to permit the employee to retire voluntarily. The relevant Rule relating to voluntary retirement and with regard to acceptance of application for voluntary retirement reads thus:- 67. Retirement on completion of 20 years qualifying service

(1) xxxx xxxx xxxx

(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority.

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.

From the aforementioned Rule, it is clear that application for voluntary retirement filed by the respondent on 25.7.2007 shall require acceptance by the appointing authority. In the matter on hand, the application for voluntary retirement is not accepted by the appointing authority.

However, the Proviso to sub-rule (2) of Rule 67 of the Rules further clarifies that where the appointing authority does not refuse to grant permission to retire before the expiry of the period specified in the said notice, the retirement shall come into effect from the date of expiry of the said period. Undisputedly, in the matter on hand, appointing authority has not refused to grant permission to the respondent for retirement before expiry of the three months'' period i.e., before 25.10.2007. Therefore, the voluntary retirement shall become effective from the date of expiry of 25.10.2007. In this view of the matter, the Tribunal has rightly ruled that the application for voluntary retirement is deemed to have been accepted by the appointing authority w.e.f. 26.10.2007 and consequently, the respondent is entitled to all the consequential benefits.

Learned counsel for the petitioners, however submits that the action of the respondent in withdrawing his earlier application filed in O.A. No. 309/2008 for the very relief operates res judicata, and therefore the respondent is not entitled to the relief in the present application, i.e., O.A. No. 372/2009. Such contention cannot be accepted. As could be seen from the order dated 7.1.2009 passed in O.A. No. 309/2008, it is clear that during subsistence of the said application, the respondent''s counsel brought to the notice of the Tribunal that disciplinary proceedings held against the respondent have been dropped and the prayer for voluntary retirement has been accepted. Since the voluntary retirement application was accepted during the subsistence of O.A. No. 309/2008, the respondent chose to withdraw the said O.A. No. 309/2008. In this view of the matter, it is not open for the petitioners to contend that the earlier order passed in O.A. No. 309/2008 operates res judicata.

Hence, writ petition fails and accordingly, the same stands dismissed.