NAVANITI PRASAD SINGH,J. - (1.) These two writ petitions; one by the employee and the other by Railway, have been filed against the order dated 03.07.2012, passed in O.A. No. 297 of 2010 by the Central Administrative Tribunal, Patna (hereinafter referred to as 'the Tribunal').
(2.) Syed Jamaluddin Ali (hereinafter referred to as 'employee') had been allegedly absent without authorization from duty for a considerable period. A departmental proceeding was initiated, which culminated into an order of his dismissal though he had allegedly retired from service under voluntary retirement scheme on 22.11.2007. Railway did not accept the request of voluntarily retirement and treating him to be in service, passed orders of dismissal from service. This was not interfered with by the appellate authority. When the employee came before the Tribunal, on behalf of the employee, it was urged that he having applied for voluntary retirement, on the expiry of the period, he would be deemed to have retired, in absence of order rejecting his application. It was further argued that having retired no order could be passed dismissing him from service and, therefore, the disciplinary proceeding could not have ended in his dismissal. He also urged that the very initiation of the disciplinary proceeding was without jurisdiction and further the enquiry officer had not given any categorical finding in respect of his unauthorized leave.
(3.) On behalf of the Railway, it was urged that no order having been passed accepting his request for voluntary retirement, voluntary retirement could not take effect and, accordingly, he continued to be in service. Primarily, what the Railway submitted was that there being a major penalty, charge-sheet and proceeding pending, the employee could not seek voluntary retirement, nor can it be granted. He would, thus, continue in service and was rightly punished. Railway further defended the report of the enquiry officer, as also the initiation of the disciplinary proceeding.;