## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941**
## **OP (CAT).No.102 OF 2015(Z)**
**AGAINST THE ORDER DATED 29.9.2014 AND 19.11.2014 IN OA 447/2013 AND R.A NO.180/00033/2014 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH**
## **PETITIONER:**
**P.O.JOSHUA AGED 63 YEARS S/O.K.OOMMEN, RETIRED HEAD GOODS CLERK, BILASPUR DIVISION, SOUTH EAST CENTRAL RAILWAY, PERMANENTLY RESIDING BY PAYANIVELAYIL VEEDU, SOUTH WEST THAZHAVE PO, KOLLAM DISTRICT, KERALA**
**BY ADV. SRI.MARTIN G.THOTTAN**
## **RESPONDENTS:**
**1 THE GENERAL MANAGER SOUTH EAST CENTRAL RAILWAY, BILASPUR DIVISION, CHATTISGARH- 495004 2 THE DIVISIONAL RAIWAY MANAGER, SOUTH EAST CENTRAL RAILWAY, BILASPUR DIVISION, CHATTISGARH 495004**
**R1-2 BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS**
**THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated this the 10th day of March 2020**
## K .Vinod Chandran, J
The applicant in the O.A, is before us as the petitioner, challenging the order of the Tribunal at Ext.P6 and that in the review at Ext.P8. The claim before the Tribunal was that the applicant is deemed to have voluntarily retired as on 1.9.2000. The facts as coming out from the records did not inspire confidence in the Tribunal and hence the O.A was rejected.
2. On facts it has to be noticed that the petitioner was working as a Head Goods Clerk under the Indian Railways specifically in South Eastern Central Railway, Bilaspur attached to the Railway Station Bishrampur. The petitioner is said to have made an application for voluntary retirement as per Annexure A1 produced in the Original Application, which bears the date 6.3.2000. The petitioner also sought for voluntary retirement only with effect from 1.9.2000 when he would have completed 30 years of service, having joined on 16.8.1970 in the Railway.
3. The learned counsel for the petitioner took us through Rule 66 of Railway Services Pension Rules, 1993 and Chapter 18 with the heading 'Retirement' as available in the Indian Railway
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Establishment Code to contend that there could be a notice served on the Railways three months prior to the date of desired retirement, which three months notice could also be served prior to the completion of 30 years, in so far as the retirement sought for is on a date after the completion of 30 years. The learned counsel would rely on the decision in
**Union of India and others v. Sayed Muzaffair Mir (1995**
**SCC (L&S) 256]** to counter the contention raised by the learned Standing Counsel that there is no formal order required as to voluntary retirement having been permitted by the Railways.
4. The learned Standing Counsel for the Railways however would contend that the notice itself having been made prior to the completion of 30 years, there could be no valid contention taken of a notice, having been served. Especially since Rule 66 speaks about the right being accrued to a person only after the Railway servant completes 30 years of service. It is also contended that Annexure A1 was never received in the office of the Controlling Authority. It is urged that there is gross delay in so far as the petitioner having approached the Tribunal only in the year 2013.
5. The learned counsel for the petitioner relies on a decision of the Hon'ble Supreme Court in **Union of India and**
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**others v. Tarsem Singh [(2008)8 SCC 648]** to contend that there is a continuing wrong and hence he should be granted pension at least from three years prior to the date of filing of the O.A.
6. We are convinced that if the notice had been given, the petitioner should be deemed to have retired as on 1.9.2000 especially looking at the Indian Railway Establishment Code which is statutory in nature. Rule 66 provides that any time after a Railway servant has completed 30 years qualifying service, he may retire from service. The proviso is to the effect that a Railway servant shall give a notice in writing to the appointing authority at least three months prior to the date on which he wishes to retire. We also see from the Rule 1803 of Indian Railway Establishment Code that a similar provision is available thereunder, which is quoted here under:
“1803(b)(1): A railway servant who is governed by any of the pension rules, may retire from service at any time after completion of 30 years of service qualifying for pension, after giving notice in writing to the appropriate authority, at least three months before the intended date of retirement.”
7. We also notice Note 3 which comes after Rule 1805
extracted as hereunder:
“NOTE (3): The 3 months notice referred to in these rules may be given before the railway servant
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attains the age specified in Clauses (a) and (b) of Rule 1802 or has completed thirty years of service specified in Clause (a) and (b) of Rule 1803 or has completed thirty years of service specified in clauses (a) and (b) of Rule 1804.”
8. Hence there could be a notice issued even within the 30 years period and the requirement is only that the date on which the voluntary retirement sought for, should be after completion of 30 years. We also respectfully follow the judgment of the Hon'ble Supreme Court in **Sayed Muzaffar Mir** wherein it has been stated that there is no requirement that there should be an order retiring the employee if there is a notice properly submitted.
9. However what restrains our hand is the submission made by the learned Standing Counsel that Annexure A1 was not received by the Controlling Authority. In this context, the gross delay of 30 years also assumes significance. Annexure A1 is said to have been sent through the Station Manager, Bishrampur, South Eastern Railway. There is a seal and signature endorsing the forwarding of the application to the DRM Bilaspur, which however cannot be verified at this stage especially since Railways denies the receipt of such an application. If the petitioner had moved the Tribunal immediately after the date of his voluntary retirement,
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definitely it could have been verified as to whether there was such an application submitted. It could also have been verified from the Station Manager as to the request having been forwarded to DRM Bilaspur. We find it difficult to verify the seal and signature as appended to Annexure A1 and the veracity of such receipt being under a cloud, we are not inclined to grant a declaration in a grossly delayed Original Application.
In such circumstances, we agree with the Tribunal that the document produced by the petitioner does not inspire confidence, especially at this late stage and we reject the Original Petition (CAT). No order on costs.
## **Sd/-**
## **K.VINOD CHANDRAN**
## **JUDGE**
## **Sd/-**
## **P.V.KUNHIKRISHNAN**
**JUDGE**
## **ab**
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
- **EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR VOLUNTARY RETIREMENT DATED 6.3.2000 SUBMITTED BY THE PETITIONER**
- **EXHIBIT P2 TRUE COPY OF THE NO-OBJECTION CERTIFICATE INTIMATING THE SANCTIONING OF 90 DAYS LEAVE ISSUED TO THE PETITIONER**
- **EXHIBIT P3 TRUE COPY OF THE ORIGINAL APPLICATION 447 OF 2013 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH**
- **EXHIBIT P4 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 447 OF 2013**
- **EXHIBIT P5 A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN OA 447 OF 2013**
- **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 29.9.2014 PASSED BY THE TRIBUNAL IN OA 447 OF 2013**
- **EXHIBIT P7 TRUE COPY OF THE REVIEW APPLICATION NO.180/00033/2014 IN OA 447 OF 2013**
- **EXHIBIT P8 A TRUE COPY OF THE ORDER IN RA180/00033/2014 IN OA 447 OF 2013 DATED 19.11.2014 PASSED BY THE TRIBUNAL**
- **ANNEXURE-A1 TRUE COPY OF THE APPLICATION FOR VOLUNTARY RETIREMENT DATED 06.03.2000.**
- **ANNEXURE-A2 TRUE COPY OF THE NO-OBJECTION CERTIFICATE INTIMATING THE SANCTIONING OF 90 DAYS LEAVE.**
- **ANNEXURE-A3 TRUE COPY OF THE LAWYER NOTICE DATED 15.12.12.**
- **ANNEXURE-A5 TRUE EXTRACT OF RELEVANT PORTION OF PASSPORT NO.A 8640421 DATED 6.3.2000ISSUED BY PASSPORT OFFICER, BHOPAL.**
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**ANNEXURE-A6(a) RETURN RECEIPT OF INTERNATIONAL RESPONDENTS OFFICE ON 5.9.07. ANNEXURE-A6(b) RETURN RECEIPT OF INTERNATIONAL MAIL SENT FROM USA AND ACKNOWLEDGED BY 2ND RESPONDENTS OFFICE ON 26.04.10.**
## **RESPONDENTS EXHIBITS: NIL**
**//TRUE COPY//**
**P.A TO JUDGE**
**ab**
