Judgment:
S. Rafat Alam and Sudhir Agarwal, JJ.
1. This intra court appeal under Chapter VIII Rule 5 of the Rules of the Court is preferred against the judgment of the Hon'ble Single Judge of this Court dated 2.9.2002 allowing the sole respondent's writ petition No. 36403 of 2001 against the order imposing punishment of reduction in rank and for recovery of Rs. 2,19,648.60.
2. Learned Standing Counsel appearing for the appellant vehemently contended that the charges against the petitioner- respondent are in respect of the period commencing from 1.9.1997 to 31.1.2001 during which he raised forged vouchers and illegally withdrew travelling allowance. In the regular departmental proceeding charges were found proved and thus, punishment of reduction in rank and recovery of the financial loss suffered by the appellant was imposed in accordance with rules and thus, there was no reason for the Hon'ble Single Judge to interfere with the order dated 22.1.2002. It is also submitted that the effect of notice of voluntary retirement dated 26.5.2001 became redundant because of the conduct of the petitioner-respondent and the notice under Rule 56(c) became ineffective after this Court's order dated 31.7.2001 passed in the writ petition of petitioner-respondent bearing writ petition No. 25415 of 2001-Krishna Chandra Agarwal v. State of U.P. and Ors..
3. We have considered the submissions. The admitted short facts briefly stated are that the petitioner-respondent was placed under suspension on 25.5.2001 in a contemplated enquiry. However, the petitioner-respondent served a notice under Fundamental Rule 56 (hereinafter referred to as F.R. 56), seeking voluntary retirement. He also in the meanwhile, approached this Court challenging the order of his suspension/disciplinary proceeding by means of writ petition No. 25415 of 2001, which was though dismissed vide judgment dated 13.7.2001, but the authorities who were arrayed as respondents, were directed to conclude the disciplinary proceeding within six months and the order of suspension was kept in abeyance till then with the liberty to the competent authority to pass fresh order, if necessary, warranted under law, after service of charge sheet upon the petitioner-respondent. Consequently, the petitioner-respondent was reinstated vide order dated 14th August 2001. However, appellants- respondents did not initiate departmental proceeding by serving charge-sheet as per observations of this Court and the period of three months from the date of notice of voluntary retirement was allowed and stood expired on 26th August 2001. The petitioner- respondent was also never informed that his request for voluntary retirement has not been accepted by the respondents in view of the contemplated inquiry. It is also admitted fact that the charge sheet was issued and served on the petitioner-respondent on 11.11.2001, much after the expiry of period of three months of the notice as prescribed under F.R. 56(c). The ex parte order in the departmental proceeding inflicting punishment of reduction in rank and recovery of Rs. 2,19,648.60 and withholding his integrity was passed on 22.1.2002, much after the expiry of the period of notice. Thus, in the facts and circumstances of the case, the short point which arises for consideration and decision in this appeal is as to whether a Government servant who has sought voluntary retirement under F.R. 56 by giving three months notice, in the absence of any intimation from the State Government before expiry of the period of notice about the acceptance or rejection of his request for voluntary retirement as provided under the first proviso to F.R. 56(c)(ii), the departmental proceeding can be initiated even after the expiry of period of notice of three months.
4. To appreciate the point in issue, it would be appropriate to reproduce F.R. 56(c) which is relevant for the present case. It reads as under:
56(c) Notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to any Government Servant whether permanent or temporary, without assigning any reason, require him to retire after he attains the age of fifty years of such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years age ok after he has qualifying service of twenty years. 56(d) The period of such notice shall be three months provided that,-
(i) Any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forth with at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement;
(ii) It shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice.
Provided further that such notice given by the government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted:
Provided also that the notice once given by a Government servant Under Clause (c) seeking voluntary retirement shall not be with drawn by him except with the permission of the appointing authority.
(emphasis added)
5. A careful reading of FR-56(c) makes it clear that a Government Servant can be retired by the employer prematurely without assigning any reason after he attains the age of fifty years by giving three months notice at any time. Similarly a Government Servant can also seek voluntarily retirement at any time after attaining the age of forty five years giving a similar three months notice. The proviso of FR-56 (c) further provides that the Government Servant may be retired by the employer giving a shorter notice or without any notice but in such a contingency, he be entitled to claim some amount for the period of notice by which such notice falls short of three months. Similarly, where the Government Servant tenders notice, it is open to the appointing authority to allow him to retire without any notice or for a shorter period of notice without incurring any liability to pay any penalty on account of such permission. It further provides where a disciplinary proceeding is pending or contemplated, the notice shall be effective only if it is accepted by the appointing authority, provided that in a case of contemplated enquiry, the government Servant is informed before expiry of period of notice that the same has not been accepted. Therefore, the proviso restrict the right of the Government Servant to retire by tendering three months notice, where a departmental enquiry is pending and in such a case, the voluntary retirement would be effective only after the said notice is accepted by the appointing authority, even if the period of notice is expired, but where enquiry is only contemplated, in such a case acceptance of notice would be necessary provided the Government Servant is informed by the employer before expiry of period of his notice that it has not been accepted. A somewhat similar provision contained in Rule 161 of Bombay Civil Service Rules came up for consideration before the Apex Court in B.J. Shelat v. State of Gujrat and Ors. : (1978)IILLJ34aSC . Rule 161 of the Bombay Civil Service Rules empowered the Government Servant to retire by giving a three months notice in writing after attaining the age of 55 years. However, proviso under Rule 161(2)(ii) restricted such right of the Government Servant where the departmental enquiry is pending or contemplated or the Government Servant is under suspension and the said proviso reads as under:
Provided that it shall be open to the appointing authority to withhold permission to retire to a Government Servant who is under suspension, or against whom departmental proceedings are pending or contemplated, and who seeks to retire under this sub-section.
6. It was held that but for the proviso, the Government Servant would be at liberty to retire by giving not less then three months notice to the appointing authority after attaining the prescribed age. However, though the proviso empowered the appointing authority to withhold permission to retire, yet the Court took the view that this proviso contemplate a positive action by the appointing authority. The Government has to communicate its intention of withholding of permission to the Government Servant. Where no such decision is taken and communicated to the Government Servant and the period of notice is allowed to expire, then it would result in allowing the Government Servant to retire without taking any action. In order to operate the proviso, it was thus necessary that the Government should not only take a decision but communicate it to the Government Servant. The Court further held where no such decision is taken and communicated to the Government Servant, after expiry of the period of notice, no disciplinary action can be taken against such Government Servant. The Court relied on an earlier three Judges Judgment of the Apex Court in Dinesh Chandra Sangma v. State of Assam and Ors. (1997) 4 SCC 441, where it was held that for retiring voluntarily under FR-56(c), a Government Servant does not require any positive order of the appointing authority unless required by the Rules otherwise. Both the aforesaid judgments have been followed in Union of India and Ors. v. Sayed Muzaffar Mir (1995) 1 UPLBEC 146 (SC), while considering a pari materia provision under Article 1801(d) of Railways Establishment Code and in para-4 and 5 of the judgment, it was held:
4. There are two answers to this submission. The first is that both the provisions relied upon by the learned Counsel would require, according to us, passing of appropriate order, when the Government servant is under suspension (as was the respondent), either of withholding permission to retire or retaining of the incumbent in service. It is an admitted fact that no such order had been passed in the present case. So, despite the right given to the appropriate competent authority in this regard, the same is of no avail in the present case as the right had not come to be exercised. We do not know the reason(s) thereof. May be, for some reason the concerned authority thought that it would be better to see off the respondent by allowing him to retire.
5. The second aspect of the matter is that it has been held by a three Judges Bench of this Court in Dinesh Chandra Sangma v. State of Assam : (1978)ILLJ17SC , which has dealt with a pari materia provision finding place in Rule 56(c) of the Fundamental Rules, that where the Government servant seeks premature retirement the same does not require any acceptance and comes into effect on the completion of the notice period. This decision was followed by another three Judges Bench in B.J. Shelat v. State of Gujrat : (1978)IILLJ34aSC .
7. While considering the provisions of FR 56(c), a Division Bench of this Court in Surendra Narain Singh v. D.I.G. Special Appeal No. 649 of 1994 decided on 31st January 1995 took the same view. Learned standing counsel however sought to argue that a mischievous Government Servant should not be allowed to take the advantage of technicality otherwise the public interest would suffer adversely. The argument is to be noted only for rejection for the reason that even if after retirement, the order of punishment may not be passed under the U.P. Government Servant (Discipline and Appeal) Rules, 1999, yet the Government may proceed to pass appropriate order under Article 351A and 470 of Civil Service Regulations and can take steps for recovery of the amount, if any, which the Government has suffered on account of alleged misconduct of the Government Servant. The Hon'ble Single Judge has also taken the same view and we are in full agreement with the view taken in the judgment under appeal.
8. In view of the aforesaid discussions, we do not find any merit in this appeal and it is, accordingly, dismissed.
9. However, there shall be no order as to costs.