CAT Order To Consider Employee's Plea For Voluntary Retirement Is Binding, Authority Cannot Direct Compulsory Retirement Instead: Karnataka HC
The Karnataka High Court has said that directions passed by the Central Administrative Tribunal (CAT) to consider the representation for voluntary retirement made by an employee are binding and authorities cannot instead direct compulsory retirement without considering the plea for voluntary retirement.
A division bench of Justice Anu Sivaraman and Justice Anant Ramanath Hegde, said thus while dismissing a petition filed by Union of India challenging an order passed by the Tribunal setting aside the compulsory retirement order passed against B Arulappa, Commissioner of Income Tax and directing the authority to consider his application for voluntary retirement.
The court said, “Since the employee had already sought voluntary retirement from service, we fail to see how the union would be aggrieved by the directions issued by the Tribunal since the employee would not have to be continued in service.”
Case Details:
Arulappa while holding charge as CIT-II, Trichy had notified the case of M/s. Vasan Healthcare Pvt. Ltd, for the assessment year 2009- 2010 to the junior most ITO, which resulted in minor penalty proceedings being initiated against him on 26.03.2018.
On 29.09.2017 he sought voluntary retirement under Fundamental Rules 56(k) with effect from 28.12.2017. The request came to be rejected on account of the withholding of vigilance clearance and the approval of the Finance Minister. He then approached the Tribunal by filing an application which came to be allowed on 19.02.2019 and authorities were directed that in case an application is submitted for voluntary retirement it should be considered favourably.
Thereafter, he again applied on 29.03.2019 seeking retirement with effect from 30.04.2019. However, since the Union of India had decided to compulsorily retire the respondent from service by order dated 10.06.2019. It was decided by the order dated 18.06.2019 that no further action was required on his VRS application dated 29.03.2019.
He approached the Review Committee which considered the case for compulsory retirement and recommended that the respondent be retired under FR 56(j). Following this he again approached the Tribunal which passed the impugned order.
The government argued that a Government Servant does not have any indefeasible right to claim voluntary retirement, even if he meets all the contingencies provided in sub-rule 56(k) and the grant of voluntary retirement is purely at the discretion of the appropriate authority. Compulsory retirement under FR 56(j) is an absolute right of the employer and does not visit the employee with any civil consequences.
Further, a person who has faced disciplinary proceedings and submitted an application for voluntary retirement only to get over the said proceedings, cannot contend that he has a claim for his application for voluntary retirement. Now even an FIR has been registered against him.
On the other hand, Arulappa contended that his application for voluntary retirement was directed to be considered favourably by the tribunal and it was pending before the authorities. Thus, it was imperative on them to have considered the same and the order of compulsory retirement without considering the same was illegal and invalid.
Findings:
The bench relied on Apex Court judgment in the case of Captain Pramod Kumar Bajaj v. Union of India & Another and said “It is only when from the proper examination of the entire service of the employee, the authority comes to the conclusion that it is in public interest to prematurely retire the employee that the exercise of the power under Rule 56(j) would be justified.”
Court noted that the only allegation against the employee was the one instance of misconduct on his part in respect of which minor penalty proceedings had already been initiated. The Tribunal had directed the favourable consideration of the application for voluntary retirement.
The court held “In view of the fact that there was a binding direction by the Tribunal to consider the voluntary retirement application to be submitted by the respondent favourably, we are of the opinion that the present exercise was totally misconceived.”
Stating that the direction of the Tribunal for considering the application for voluntary retirement was not challenged and it had attained finality, the court observed, “It was not open to them (UoI) to have subverted the same by passing orders of compulsory retirement, that too, on the same grounds which had been found against by the Tribunal.”
Accordingly, it dismissed the petition.
Appearance: Advocate Hanubbaskar a/w Advocate B Pramod for Petitioners.
Senior Advocate K.N Phanindra a/w Advocate Siji Malayil for Respondent.
Citation No: 2024 LiveLaw (Kar) 316
Case Title: Union of India & ANR AND B Arulappa
Case No: WRIT PETITION NO.25744 OF 2023