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PETITIONER: B. J. SHELAT

       Vs.

RESPONDENT: STATE OF GUJARAT & ANR.

DATE OF JUDGMENT28/03/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SARKARIA, RANJIT SINGH UNTWALIA, N.L.

CITATION:  1978 AIR 1109            1978 SCR  (3) 553  1978 SCC  (2) 202  CITATOR INFO :  D          1988 SC 842  (3,6)

ACT: Bombay  Civil Service Rules-r. 161(2)(ii) proviso-Scope  of- Government  had power to withhold permission  for  voluntary retirement    if   departmental   proceedings   are    under contemplation-Government   servant   gave  due   notice   of intention to retire-Order of suspension not communicated  to Government   servant  before   retirement-Communication   if incumbent-Government  if  competent  to  take   disciplinary action after retirement.

HEADNOTE: Rule 161(2)(ii) of the Bombay Civil Services Rules  provides : "any Government servant to whom clause (a) applies may, by giving  notice of not less than three months in  writing  to the Appointing Authority,retire from service .... and in any other case, after he has attained the age of 55 years. 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-clause." During the pendency of certain appeals before the High Court from  the  decisions  of the appellant who  was  a  Judicial Officer   the  accused  in  those  cases  filed   affidavits alleging  corruption on the part of the appellant.   In  the meantime on July 17, 1973 the appellant gave a notice  under r.  161 communicating his desire to retire on attaining  the age of 55 years, on December 3, 1973.  On December 11,  1973 pending finalisation of departmental proceedings which  were under  contemplation,  the  High Court  suspended  him  from service. The  appellant’s writ Petition challenging  the  Governments action  in  taking  disciplinary action  against  him  after retirement  was  dismissed by the High Court.   The  Special Leave Petition filed by him in this Court was allowed to  be withdrawn reserving to him the right to agitate the question whether disciplinary action could be taken against him after retirement.  Eventually, however, he was dismissed. On  the question whether it was incumbent on the  Government

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to  communicate  to the Government servant its  decision  to withhold  permission  to  retire  on  one  of  the   grounds specified in the proviso : HELD  :  1.  For  the proviso  to  become  operative  it  is necessary  that  the  Government  should  not  only  take  a decision  but communicate it to the Government servant.   It is  not  necessary that the communication should  reach  the Government Servant. [558 E] 2.  But for the proviso the right of the Government  servant to  retire  would  have  been  absolute.   The  proviso  has restricted  the  right conferred on the  Government  servant under  it.  It is open to the Appointing Authority to  with- hold  permission  to retire when the Government  servant  is under suspension or departmental proceedings are pending  or an- contemplated against him. [557 C-E] 3.The proviso contemplates positive action by the Appointing Authority.   The words "it shall be open to  the  Appointing Authority to withhold permission" in r. 161 proviso indicate that the Appointing Authority has got an option to  withhold permission and that could be exercised by communicating  its intention to withhold permission to the Government  servant. The  Appointing Authority may have considered  the  question and  may  not  have taken a decision  either  way  or  after considering  the  facts  of the case may have  come  to  the conclusion that it is better to allow the Government servant to retire than take any action against him. [558 C-E] 554 Dinesh  Chandra Sangma v. State of Assam and Orr., [1978]  1 S.C.R. 607, distinguished. Lewis & Allenby (1909) Ltd. v. Pegge; [1914] 1 Ch.  D.  782; held in applicable. State of Punjab v. Khemi Ram; [1970] 2 S.C.R. 657; State  of Punjab v. Amar Singh Harika; A.I.R. 1966 S.C. 1313; referred to. In  the  instant  case it was incumbent  on  the  Appointing Authority  to  withhold permission to retire on one  of  the conditions  mentioned in the proviso.  Admittedly the  order of  suspension  was  not communicated  before  the  date  of retirement.  Therefore, disciplinary action cannot be  taken after the date of his retirement. [558 F-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 923/77. (Appeal  by Special Leave from the Judgment and Order  dated 13-8-1.976 of the Gujarat High Court in SCA No. 1216/76). V.  M. Tarkunde, P. H. Parekh, Manju Sharma and C. B.  Singh for the Appellant. D. V. Patel and S. P. Nayar for Respondent Nos.  1 & 2. The Judgment of the Court was delivered by KAILASAM,  J.  This  appeal is preferred  by  special  leave against the judgment of the High Court of Gujarat dated 13th August,  1976  dismissing  a  writ  petition  filed  by  the appellant  against  the  order of dismissal  passed  by  the Government on 21st January 1976. The  appellant B. J. Shelat was born on 4th December,  1918. He  joined as a Magistrate on 5th January, 1950 in the  pre- reorganized  State  of Bombay.  On the  bifurcation  of  the State  of  Bombay on 1st May, 1960 he was  allotted  to  the State  of Gujarat as a Civil Judge and Judicial  Magistrate, First  Class.   On  4th November,  1961  the  appellant  was appointed by the Governor of Guarat as a Magistrate for  the city of Ahmedabad.  On 9th November, 1970 the appellant gave a notice of retirement to the Government of Gujarat  through

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the  Registrar of the High Court.  He intimated that  as  he had completed 50 years on 4th December, 1968 he intended  to retire  from 10th May 1971 if Rule 161 of the  Bombay  Civil Services Rules permitted him to do so.  The Registrar of the High  Court  replied to this notice on  11th  January,  1972 informing the appellant that he may send a fresh application on the lines of his application dated 9th November, 1970. The  appellant  had delivered several  judgments  under  the Prevention  of Food Adulteration Act during the period  24th January,  1972 to 17th August, 1972.  These  judgments  were taken  on  appeal to the High Court and in  the  High  Court during  the period 19th June, 1973 to 10th August, 1973  the accused  in the various cases relating to food  adulteration filed affidavits alleging that they had paid some moneys  to ’the appellant.  When these appeals were pending, before the High  Court on 17th July, 1973 the appellant gave  a  second notice under Rule 161 intimating his intention to retire  on reaching the age 555 of  55  years i.e. on 3rd December, 1973.   But  before  3rd December,  1973, the date on which the appellant was due  to retire,  the Chief City Magistrate, Ahmedabad, informed  the petitioner  on 23rd November, 1973 under the  directions  of the  Chief Justice and Judges of the High Court  of  Gujarat calling  upon  him  to submit  his  explanation  as  regards allegation made in the affidavits.  The appellant  submitted his  explanation on 26th November, 1973.  On 11th  December, 1973  the  High Court issued an order of suspension  as  the High Court ’was of the view that it was desirable to suspend the   appellant   pending   finalisation   of   departmental proceedings against him which were under contemplation. The   appellant  filed  a  writ  petition  challenging   the jurisdiction of the.  Government to take disciplinary action against  him after retirement.  This petition was  dismissed and a Letters Patent Appeal filed by the appellant was  also dismissed  on  24th December, 1973.  The appellant  filed  a special  leave petition in this Court against the  order  of dismissal  of his writ petition by the High Court  and  this Court on 25th April, 1975 allowed the appellant to  withdraw his petition reserving his right to agitate the question  as to  whether  disciplinary action can be  taken  against  him after  retirement  when  final orders  were  passed  in  the disciplinary  inquiry  against  him.   In  the  meantime   a chargesheet was issued to the appellant by the High Court on 18th  .January, 1974 and the Inquiry Officer  submitted  his report on 25th July, 1974 holding that the charges were  not proved.   But the High Court did not agree with the  report of  the Inquiry Officer and directed the appellant  to  show cause why a different view from that of the Inquiry  Officer be not taken.  On receipt of the appellant’s reply the  High Court recommended the punishment of dismissal to the Govern- ment and the impugned order was passed by the Government  on 21st .January, 1976.  The appellant preferred writ  petition to  the  High Court and the High  Court  by  its  judgment dismissed  it  holding  that there is evidence  on  which  a reasonable  inference of guilt could be drawn and  therefore it could not interfere with the order of dismissal.   Hence, the present appeal. Mr.  V. M. Tarkunde, the learned counsel for the  appellant, raised two contentions before, us.  He submitted that after the  passing  of  the impugned order  of  dismissal  by  the Government on 21st January, 1976 it has become necessary  to question   the  jurisdiction  of  the  authority   to   take disciplinary   action  against  the  appellant   after   his retirement,  a question which was specifically reserved  for

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the appellant by this Court.  Secondly, he submitted that on the merits there is no evidence on which a court can come to the conclusion that the charges that were framed against the appellant had been established. We will proceed to consider the question of the jurisdiction of  the ,authority to take disciplinary action  against  the appellant after his retirement.  It may be recalled that the appellant  gave a notice intimating his intention to  retire on  17th  July, 1973 stating that he intended to  retire  on reaching  the  age of 55 years on 3rd, December,  1973.   He attained the age of 55 years on 3rd December, 1973 and it is common  ground that the notice of suspension was  issued  by the 556 High  Court  only on 11th December, 1973.   But  before  3rd December,  1973 it is admitted that a show-cause notice  was issued  on 23rd November, 1973 by the Chief City  Magistrate co  the  directions  of  the High  Court  calling  upon  the petitioner  to  submit his, explanation  and  the  appellant submitted his explanation on 26th November, 1971. Rule.  161 of the Bombay Civil Services Rules  provides  for the  retirement of Government servants before attaining  the age of superannuation.  Rule 161(1)(aa) provides-               "Notwithstanding anything contained in  clause               (a)               (1) An appointing authority shall, if he is of               the opinion that it is in the public  interest               so  to do, have the absolute right  to  retire               any  Government  servant to which  clause  (a)               applies by giving him notice of not less  than               three  months in writing or three  months  pay               and allowances               in lieu of such notice :               x       x        x               Sub-rule (2) (ii) is, as follows :-               "any  Government  servant to whom  clause  (a)               applies may, by giving notice of not less than               three  months  in writing  to  the  Appointing               Authority,  retire from service x x x x x  and               in  any other case, after he has attained  the               age of 55 years." There is no dispute that the Rule applicable is Rule  161(2) (ii)  and  the appellant is entitled to retire by  giving  a notice  of not less than 3 months after he has attained  the age of 55 years.  Under Rule 161 (1) (aa) (1) the appointing authority  has  an absolute right to retire  any  Government servant  to  whom clause (a) applies in public  interest  by giving  him notice of not less than three months in  writing or  three months pay and allowances in lieu of such  notice. But  the Government servant has no such absolute  right.   A right  is  conferred on the Government  servant  under  Rule 161(2) (ii) to retire, by giving not less than three  months notice on his attaining the prescribed age.  Such a right is subject  to  the proviso which is incorporated to  the  sub- section which reads as follows :-               "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-clause." But  for  the  proviso a Government servant  would  be ,it liberty  to  retire  by giving not less  than  three  months notice  in writing to the appointing authority on  attaining the  prescribed age.  This position has been made  clear  by

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this  Court in Dinesh Chandra Sangma v. State of  Assam  and Others(1) where the Court was considering the effect of  the (Assam) Fundamental Rule 56(c) which confers right (1) [1978], C.R. 607. 557 on  the Government servant to voluntary retire.  Rule  56(c) of the (Assam) Fundamental Rules runs as follows:               "(c)  Any  Government servant may,  by  giving               notice  of  not  less  than  three  months  in               writing  to the appropriate authority,  retire               from service after he has attained the age  of               fifty  years  or  has completed  25  years  of               service, whichever is earlier." On  a  construction  of the Rule this Court  held  that  the condition of service which is envisaged in Rule 56(c) giving an  option  in  absolute terms to a  Government  servant  to voluntary  retire with three months’ previous notice,  after he  reaches  50 years of age or has completed  25  years  of service, cannot be equated with a contract of employment  as envisaged  in  Explanation 2 to Rule 119 of the  Defence  of India Rules and that Rule 56 is a statutory condition  which operated   in  law  without  reference  to  a  contract   of employment and when once the conditions of Fundamental  Rule 56(c) are fulfilled the Government servant must be held  to have  lawfully  retired.   But  for  the  proviso  to   Rule 161(2)(ii)  the  decision of this Court in  the  case  cited above  would  be applicable and the right  would  have  been absolute.    But  the  proviso  has  restricted  the   right conferred  on the Government servant.  Under the proviso  it is  open to the appointing authority to withhold  permission to  retire  to  a Government servant when (1)  be  is  under suspension, or (2) against whom departmental proceedings are pending or contemplated.  Thus the permission to retire  can be  withheld  by the appointing authority  either  when  the Government  servant  is  under suspension  or  against  whom departmental  proceedings are pending or  contemplated.   It was submitted on behalf of the appellant that admittedly  he was  not under suspension on the date when he  attained  the age  of 55 years and that no departmental  proceedings  were pending  or contemplated against him as required  under  the proviso.  No departmental proceeding was pending but on  the facts  one  cannot  say  that a  proceeding  was  not  under contemplation. Mr. Tarkunde, the learned counsel for the appellant, further submitted that in any event the appointing authority had not chosen  to withhold permission to retire before the date  of superannuation.    It  was  submitted  on  behalf   of   the respondent,  the  State of Gujarat, that a reading  of  Rule 161(2)  (ii)  would show that a  Government  servant  cannot retire  without  the specific.permission of  the  appointing authority  and as in this case no permission was granted  it should  be  held  that  the  appointing  authority  withhold permission to the Government servant to retire according  to the  proviso.  In support of this contention Mr. Patel,  the learned  counsel  for the State of Gujarat,  relied  on  the decision in Lewis & Allenby (1909), Limited v. Pegge.(1)  In that case a limited company demised a residential flat for a term  of  years and the lessee covenanted not to  assign  or underlet  the premises without the consent of  the  company, such consent not to be withheld in the case of a respectable or  responsible  person.   On 3rd  April,  1913  the  lessee applied to the Secretary of the company for leave to sub-let to Higham a respectable and responsible person and asked (1)  [1914] 1 Ch.  Division p.782. 558

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to  know  by April 14 as Higham wanted  possession  on  that date.   The  Secretary  forgot  to  communicate   with   his directors.   On 14th April the lessee not having received  a reply  sub-let  to Higham and gave him  possession.   In  an action:  by the company to recover possession for breach  of the  covenant  the Court held that as consent is not  to  be withheld  in  the  case of  a  respectable  and  responsible person, if the lessee applies for such consent and within  a reasonable time that consent is not granted, then within the meaning  of the covenant it is withheld and the lessee  will not lose his property if he assigns to the person whose name he  has given to the landlord.  On the circumstances of  the case  the Court Was of the view that the period between  3rd April  and 14th April was a reasonable time and inasmuch  as no  intimation  was made to him either way in  the  interval there  has been no breach of the covenant and the  sub-lease to Higham was good.  We fall to understand how this decision advances  the contention of Mr. Patel.  As no  communication was  received  the  Court  held that  the  granting  of  the permission was a mere formality and that it had to be  taken that  the consent was granted.  In the case before us it  is incumbent on the appointing authority to withhold permission to  retire  on  one  of the  conditions  mentioned  in-  the proviso.  We ,ire of the view that the proviso contemplates a  positive action by the appointing authority.   The  words "It  shall be open to the appointing authority  to  withhold permission" would indicate that the appointing authority has got  an  option  to withhold permission and  that  could  be exercised   by  communicating  its  intention  to   withhold permission  to  the  Government  servant.   The   appointing authority  may  have Considered the question and  might  not have  taken a decision either way or after  considering  the facts of the case might have come to the conclusion that  it is  better  to allow the Government servant to  retire  than take  any  action against him.  For the  proviso  to  become operative  it  is necessary that the Government  should  not only  take a decision but communicate it to  the  Government servant.  It is not necessary that the communication  should reach  the  Government servant.  As held by  this  Court  in State  of Punjab v. Khemi Ram(1) it will be,  sufficient  if such  an  order is sent out and goes out of control  of  the appointing  authority  before  the  relevant  date.    After referring to the earlier decisions, the Court held that  the actual  knowledge by the Government servant of an  order  of dismissal  may  perhaps  become  necessary  because  of  the consequences  which the decision in the State of  Punjab  V. Amar Singh Harika(2) contemplated but an order of suspension when  once issued and sent out to the  concerned  Government servant  must  be held to have been communicated  no  matter when  he actually received it.  The question as to when  the order  should  be deemed to have been  communicated  is  not relevant in this case as admittedly the order of  suspension was not communicated before the date of superannuation. Mr.  Patel  next  referred us to the  meaning  of  the  word "withhold"  in Webster’s Third New International  Dictionary which  is  given  as  "hold back"  and  submitted  that  the permission should be deemed to (1)  [1970] 2 S.CR. 657. (2)  A.T.R: 1966 S.C. 1313. 559 have  been withheld if it is not communicated.  We  are  not able  to  read  the  meaning  of  the  word  "withhold"   as indicating that in the absence of a communication is must be understood as the permission having been withheld. It will be useful to refer to the analogous provision in the

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Fundamental   Rules  issued  by  the  Government  of   India applicable to the Central Government servants.   Fundamental Rule  56(a)  provides that except as otherwise  provided  in this  Rule,  every  Government  servant  shall  retire  from service  on  the afternoon of the last day of the  month  in which lie attains the age of fifty-eight years.  Fundamental Rule  56 (j) is similar to Rule 161 (aa) (1) of  the  Bombay Civil  Services  Rules conferring an absolute right  on  the appropriate  authority  to retire a  Government  servant  by giving not less than three months notice.  Under Fundamental Rule 56(k) the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving  notice of not less than three months in  writing  to the  appropriate authority on attaining the  age  specified. But proviso (b) to sub-rule 56(k) states that it is open  to the  appropriate  authority  to  withhold  permission  to  a Government  servant  under suspension who  seeks  to  retire under this clause.  Thus under the fundamental Rules  issued by the Government of India also the right of the  Government servant to retire is not an absolute right but is subject to the proviso wherever the appropriate authority may  withhold permission  to a Government servant under suspension.  On  a consideration  of  Rule 161(2) (ii) and the proviso  we  are satisfied  that  it  is  incumbent  on  the  Government   to communicate  to  the  Government  servant  its  decision  to withhold permission to retire on one of the ground specified in the proviso. In the view we have taken that the appointing authority  has no  jurisdiction to take disciplinary proceedings against  a Government servant who had effectively retired, the question as  LO whether the High Court was right in holding that  the disciplinary authority had sufficient grounds for dismissing the  appellant  does not arise.’ ’The Inquiry  Officer  held that  the charges had not been established as the  witnesses who   made  allegations  against  the  appellant  in   their affidavits  failed to appear before it.  The High  Court  or the  administrative side came to a different  conclusion  on examining the record relating to three criminal cases  where the  accused  pleaded  guilty  but  the  appellant-did   not pronounce  his  judgment  and postponed it  to  some  months thereafter.  In one case the accused pleaded guilty on  16th December,  1971  but  the judgment was  pronounced  on  21St March, 1972.  In the second case the accused pleaded  guilty on  23rd December, 1971 and the judgment was  pronounced  on 24th January, 1972 and in the third case the plea of  guilty was  on 26th June, 1972 and the judgment was  pronounced  on 17th   August,  1972.   The  High  Court   observed   "While exercising  our jurisdiction under Article 226, we  are  not concerned  with the adequacy of evidence.  All that we  have to  see is whether there is evidence on which  a  reasonable inference could be drawn." In the circumstances of the case, the High Court was of the 560 view  that it was not called upon to interfere.  As  already stated,  as  we  have  come  to  the  conclusion  that   the disciplinary  action cannot be taken after the date  of  his retirement,  we refrain from expressing any opinion  on  the correctness   of  the  decision  taken  by  the   appointing authority. In  the result the appeal is allowed and the impugned  order and  the  judgment of the High Court are set  aside.   There will be no order as to costs. P.B.R                               Appeal allowed, 77SCI/78-GIPF.

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561