Judgment:
K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. The applicant, a Chief Office Superintendent of the Southern Railway, Commercial Department of Trivandrum Division having completed 30 years of service and more than 55 years of age had given notice dated 27.06.2011 for voluntary retirement from service with effect from 31.12.2011. She was asked to continue in service till such time clearance from the vigilance department is received. Aggrieved, she has filed this O.A. for the following reliefs.
"(i) Call for the records leading to the issue of Annexures A1 and A2 and quash the same.
(ii) Declare that the applicant is deemed to have voluntarily retired from the Railway service with effect from 31.12.2011 and direct the respondents accordingly.
(iii) Direct the respondents to grant the applicant all consequential retirement/ terminal benefits as if the applicant had voluntarily retired from railway service with effect from 31.12.2011 with all its consequential arrears arising therefrom.
(iv) Direct the respondents to grant the applicant interest @12% per annum on the applicant's retirement/terminal benefits to be calculated with effect from 01.01.2012 upto the date of full and final settlement of the same.
(v) Award costs of and incidental to this application.
(vi) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."
2. The applicant contended that in terms of Rule 1802 (b) of the Indian Railway Establishment Code Vol.II, she is entitled to retire voluntarily as a matter of course. The respondents can withhold the the request for voluntary retirement only, in case, the applicant happens to be under suspension as on the date on which voluntary retirement was requested for. The impugned order at Annexure A-1 and Annexure A-2 are not based on relevant consideration, without due application of mind and hence unconstitutional. The applicant submits that she is entitled to be deemed to have voluntarily retired from service with effect from 31.12.2011 with all consequential benefits of pension and all other retiral benefits arising therefrom.
3. The respondents in their reply statement submitted that the request of the applicant for voluntary retirement was not considered in terms of the provision in Para 11.2(iii) of the Master Circular No. 35 on retirement and Rules 66 and 67 of the Railway Services (Pension) Rules 1993. The respondents further admitted that she had completed 30 years of service and is over 55 years of age and that she had given more than 3 months notice vide Annexure A-5. Her request was not considered immediately after expiry of notice period because of non receipt of clearance by the vigilance branch and from DAR angle which is must in terms of provision in Para 11.2(iii) of the Master Circular No. 35 pertaining to retirement.
4. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mr. Thamas Mathew Nellimoottil, learned counsel for the respondents and perused the records.
5. As per Rule 66 of the Pension Rules, 1993, any time after a Railway servant completes 30 years of qualifying service can retire from service. He has to give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire. It shall be open to the competent authority to withhold permission to such Railway servant to retire provided he is under suspension. The applicant in the instant case has completed more than 30 years of service as vetted by the Associate Accounts Office of the Trivandrum Division. She is not under suspension. But the respondents have advised her to continue in service till the clearance from the vigilance department is received on the basis of the provision in Para 11.2 (iii) of Master Circular No. 35 on retirement which states that acceptance of the notice of retirement in all such cases by the authorities will be subject to clearance by the vigilance branch and from DAR angle. As rightly pointed out by the applicant, the requirement of vigilance clearance and clearance from DAR angle is not required in the case of the applicant. P.B. Circular No. 62/80 pertains to retirement on completion of 20 years qualifying service only. It mentions the condition of clearance from the vigilance department and from DAR angle in case of notice of voluntary retirement on completion of 20 years service only and not other cases of voluntary retirement. The respondents could not controvert this contention. Therefore, we hold that vigilance clearance and clearance from DAR angle in the case of the applicant was not necessary at all. It was not open to the respondents to withhold permission for voluntary retirement as per rules as she was not under suspension. Therefore, not granting permission for voluntary retirement on completion of 30 years of qualifying service and on getting more than 3 months notice on the ground of waiting for clearance from the vigilance department, is arbitrary and illegal. Hence we declare that the applicant should be deemed to have retired voluntarily on 31.12.2011.
6. During the pendency of the O.A., the applicant was served with a memo of charge dated 17.02.2012 under Rule 11 of the Railway Servants (Discipline and Appeal) Rules, 1968 for failing to ascertain the correctness of tender documents which led to cancellation of tender for sole right advertisements of signage at Trichur Railway Station in the year 2004. The alleged offence is a supervisory lapse that happened 8 years ago. There is inordinate delay on the part of the respondents to take action if at all it is required. An inefficient officer can be compulsorily retired with all pensionary benefits. There is no prospect of a major penalty being imposed on the applicant even if she is found guilty of the charge. The departmental proceedings were initiated against the applicant only on 17.02.2012 much later than the date of voluntary retirement sought by the applicant. If the applicant was allowed to retire voluntarily as per her entitlement on 31.12.2011 she would have received the retirement benefits. As the applicant continues to be in service even today, the relief to be granted is moulded as under.
7. The Annexure A-1 order dated 20.12.2011 and Annexure A-2 order dated 21.12.2011 are quashed. The respondents are directed to treat the applicant as if she retired voluntarily on 31.12.2011 and to grant her all consequential benefits. The salary already paid for the period beyond 31.12.2011 minus the pension due to the applicant may be recovered from the retiral benefits of the applicant. Appropriate orders as per the directions above should be issued at the earliest, at any rate within a period of one month from the date of issue of this order.
8. The O.A. is allowed as above with no order as to costs.