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PETITIONER: MOHAN SINGH MALHI

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT25/03/1976

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT RAY, A.N. (CJ)

CITATION:  1976 AIR 1428            1976 SCR  (3) 893  1976 SCC  (3)  21

ACT:      Compulsory retirement  after attaining  the age  of 55, with three  months’ salary  in lieu  of notice-Competency of the State  Government to  retire-Scope of Rule 5.32(c)(1) of the Punjab Civil Service Rules, Vol. II.

HEADNOTE:      Under  Section  5.32(c)  (i),  a  retiring  pension  is granted to  a Government  Servant, other  than  a  Class  IV Government  servant,   who  is  retired  by  the  Appointing Authority on  or after  he attains  the age  of 55  years by giving him not less than three months’ notice.      The appellant who was served with an order on September 2, 1967, retiring him from service with effect from the date of communication  to him  of the  order on  payment of three months’ salary  and allowances in lieu of notice required by rule 5.32(c)(i)  of the  Punjab Civil  Service Rules Vol. II challenged the order on the ground that the State Government was competent  to retire  him only with three months’ notice but not  with salary  and allowances  in lieu  of the notice under the  rules. The Writ Petition was accepted by a single judge and  in  Letters  Patent  Appeal  by  the  State,  the Division Bench referred it to the Full Bench. The Full Bench by majority  answered the  question referred  to it  in  the affirmative and in favour of the State.      Dismissing the appeal by special leave the Court, ^      HELD: Rule  5.32 merely  provides for  a contingency in which a  retiring pension  is to  be granted to a Government servant. Even assuming that the rule by implication requires three months’  notice to be given to a Government servant of the description referred to therein before retiring him from service the  requirement of  the rule  cannot be  said to be violated if  instead of  three months’  notice,  payment  of three months salary and allowance is made. The object of the notice being  to give  sufficient  time  to  the  Government servant whom  it is  intended to retire from service to find employment elsewhere  and to  prevent  him  from  his  being suddenly left  in lurch  without any means of livelihood, no prejudice can be said to be caused to the Government servant if in lieu of three months’ notice, he is given three months salary  and  allowances.  In  fact  he  is  put  in  a  more

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advantageous position by being paid three months’ salary and allowances instead  of the  notice for  that period as he is thereby relieved  of the obligation to spend his time in the office attending  to his  duty and  gets  all  the  time  to himself which  he can  utilize in finding an alternative job or  setting   his  affairs.   Therefore  if  the  appointing authority wants to exercise its right to retire a government servant who  has attained  the age  of 55  years,  there  is nothing to  debar it from validly doing so by payment to him of a  sum equivalent to the amount of his pay and allowances for the period of notice. [895 F-H, 896 A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1601 of 1970.      Appeal from the Judgment and Order dated the 20-2-70 of the Punjab and Haryana High Court in L.P.A. No. 552 of 1968.      V. C. Mahajan and S. S. Khanduja, for the Appellant.      O. P. Sharma, for the Respondent.      The Judgment of the Court was delivered by      JASWANT SINGH, J.-The question that arises for decision in this  appeal by  certificate granted by the High Court of Punjab and 894 Haryana against  its Judgment  and order  dated February 20, 1970 in L.P.A. No. 552 of 1968 is whether under Rule 5.32(c) of the  Punjab Civil  Service Rules, Vol. II, the Government can retire  an employee on or after he attains the age of 55 years by  giving him  three months’ salary and allowances in lieu of three months’ notice.      The facts  giving rise  to the  appeal lie  in a  short compass and may be stated thus;      Before the  partition of  the  country,  the  appellant joined the Veterinary Department of the Punjab Government as an Assistant Surgeon on December 1, 1933. In course of time, he was  appointed as Director of Animal Husbandry and Warden of Fisheries  which post  he held  from March  16,  1957  to August 14,  1959, when Shri Pritarn Singh Brar was appointed Director in his place. On Shri Pritam Singh Brar’s attaining the age of superannuation, the appellant was again appointed as Director, Animal Husbandry, on regular basis on August 4, 1965. On  September 2,  1967, the  appellant was served with the following order:-           "The Governor  of Punjab is pleased to retire Shri      Mohan Singh Malhi, P.V.S.I. Director, Animal Husbandry,      Punjab,  Chandigarh   with  effect  from  the  date  of      communication to  him of this order on payment of three      months salary and allowances in lieu of notice required      by rule  5.32(c) of  the Punjab  Civil  Service  Rules,      Volume II.           "2. Shri  Harbhajan Singh  Saini, Technical Expert      Poultry is  hereby directed to relieve Shri Mohan Singh      Malhi.                                                 S. S. GREWAL                               Secretary to Government Punjab                                  Animal Husbandry Department Chandigarh, Dated the 2nd Sept. 67      "No. 3840/AH(I)-67/6213  Chandigarh dated the 2nd Sept. 1967  A  copy  is  forwarded  to  Shri  Mohan  Singh  Malhi, P.V.S.I."      Against  this   order,  the   appellant  made   several representations which  did not  evoke a favourable response.

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Eventually, he  approached the High Court on March 18, 1968, by means  of a  petition under  Articles 226  and 227 of the Constitution of  India for  issue  of  an  appropriate  writ quashing the  aforesaid order  dated September  2, 1967, and declaring that he still continued to be in service. A Single Judge of  the High Court allowed the appellant’s petition by judgment and  order dated  April 22,  1968, and  quashed the aforesaid  order   retiring  the   appellant  from  service. Aggrieved by the judgment and order of the Single Judge, the State of Punjab preferred a Letters Patent Appeal. The Bench hearing the appeal referred the above mentioned question for decision to a Full Bench of the Court. On 895 December 18,  1969, the  Full Bench by majority answered the question referred  to it  in the  affirmative. Thereupon the appellant applied  for and obtained a certificate of fitness to appeal  to this  Court. This  is how the appeal is before us.      Appearing in  support of  the appeal,  counsel for  the appellant  has   vehemently  contended  that  the  aforesaid majority decision  of the  Full Bench  of the  High Court is erroneous as  there is  no provision  in  the  Punjab  Civil Service Rules  like the  one contained  in  Rule  5  of  the Central Civil  Services  (Temporary  Service)  Rules,  1949, authorising the  State  Government  to  give  three  months’ salary in lieu of three months’ notice.      For a  proper decision of the question, it is necessary to refer  to Rule 5.32(c) of the Punjab Civil Service Rules, Vol. II which runs as under:-           "5.32 ... ... ...           (c)    (Vide No. 1243-5FRI-64/1143 dated 4.2.1964)                A retiring  pension  is  also  granted  to  a                Government servant  other  than  a  class  IV                Government servant;           (i)  Who is retired by the Appointing Authority on                or after  he attains  the age of 55 years, by                giving him not less than 3 months notice,           (ii) Who retires  on or after attaining the age of                55 years by giving not less than three months                notice of  his intention  to  retire  to  the                appointing authority. Provided that where the                notice is given before the age of 55 years is                attained, it  shall be given effect to from a                date not  earlier than  the date on which the                55 years is attained. NOTE:-    Appointing authority  retains an absolute right to           retire any  Government servant  except a  Class IV           servant on  or after he has attained the age of 55           years   with   out   assigning   any   reason.   A           corresponding right  is also  available to  such a           Government servant  to retire  on or  after he has           attained the age of 55 years."      It will  be noticed  that the  Rule as reproduced above merely provides  for  a  contingency  in  which  a  retiring pension is  to be  granted to a Government servant. Assuming that the  rule by  implication requires three months’ notice to be  given to  a Government  servant  of  the  description referred to therein before retiring him from service, we are unable to  understand how that requirement can be said to be violated if  instead of  three months’  notice,  payment  of three months  salary and  allowances is  made  to  him.  The object of  the notice,  as well known, is to give sufficient time to the Government servant whom it is intended to retire from service to find employment elsewhere and to prevent his being  suddenly   left  in   lurch  without   any  means  of

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livelihood. If that be the object of the notice, no 896 prejudice can be said to be caused to the Government servant if in lieu of three months’ notice, he is given three months salary and  allowances.  In  fact,  he  is  put  in  a  more advantageous position by being paid three months’ salary and allowances instead  of notice  for  that  period  as  he  is thereby relieved  of the obligation to spend his time in the office attending  to his  duty and  gets  all  the  time  to himself which  he can  utilize in finding an alternative job or settling  his affairs. Thus we are of opinion that if the appointing authority wants to exercise its right to retire a Government servant  other than a Class IV Government servant who has  attained the  age of  55 years, there is nothing to debar it  from validly  doing so  by payment to him of a sum equivalent to  the amount  of his pay and allowances for the period of the notice.      For the  foregoing reasons,  we are unable to interfere with the  majority view of the Full Bench of the High Court. In the  result, the appeal fails and is dismissed but in the circumstances of the case without any order as to costs. S.R.                                       Appeal dismissed. 897