http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: STATE OF HARYANA & ORS.

       Vs.

RESPONDENT: S.K.SINGHAL

DATE OF JUDGMENT:       16/04/1999

BENCH: M.Jagannadha Rao, S.N.Phukan

JUDGMENT:

JUDGEMENT M.Jagannadha Rao.J.

       Leave granted.

       The appellant,  State  of  Haryana  has  filed  this appeal  against  the  Judgment of the High Court of Punjab & Haryana in C.W.P. No. 675 of 1996 dated 12.9.1997.  By  that Judgment,  the High Court allowed the writ petition filed by the respondent and quashed the order dated 13.12.95  of  the Civil  Surgeon.  The  Civil Surgeon in his order stated that the respondent-writ petitioner could not be deemed  to  have retired  voluntarily  w.e.f. 16.11.95 pursuant to his notice dated 16.8.1995. The respondent had claimed that  by  virtue of  the  proviso  to  sub-clause  (2)  of Rule 5.32.B of the Punjab Civil Service Rules (Vol.II), he must  be  deemed  to have  retired on the expiry of three months of notice issued after completion of 20 years qualifying service.

       The facts  of  the  case  are  as  follows.      The respondent joined  service  on 4.6.75.  Which he was working as Medical Officer, Civil Hospital Kaithal,  the  respondent was  transferred  on  8.8.1995  as  Medical Officer, Primary Health Centre Kharak Ramji, District Jind.   The  respondent joined  at  Jind  on  16.8.95  and  on  the  same date (i.e. 16.8.95), he issued a notice seeding  voluntary  retirement, and  the  letter  was  addressed  to  the  Commissioner  and Secretary, Health Department, Haryana, Chandigarh.  He  sent an  advance copy to the Commissioner Secretary and presented the application to his  departmental  head,  Civil  Surgeon, Jind.   There was no response from the concerned authorities till 16.11.1995.  Government stated in its counter filed  in the High Court that the respondent was not allowed to retire w.e.f.  16.11.1995.   "as he was absent from duty and he did not perform  his  duties  during  the  period  of  3  months notice".  Long after the expiry of 3 months on 16.11.1995, a telegram  was  sent on 5.12.95 asking the respondent to join duty.  It was the case of the respondent that his retirement was automatic on expiry of 3 months and that in  any  event, there was no truth in the allegation that he did not perform his duties  in those 3 months.  He pointed out that he wrote in the movement register on 1.9.95 at 11 a.m.  that  he  was going  to  meet the Senior Medical Officer (SMO) incharge of Primary Health Centre, Kharak Ramji, Dr.Khazan Singh and had placed a copy of the station leave in the Movement Register, that he took the second copy with himself to seek permission but at Jind, Dr.  Dhazan Singh was not available because  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

that day, the Govt.  had declared 1st and 2nd Sept.  1995 as holidays  on  account  of  the  assassination  of  the Chief Minister, Sri Beant Singh.  On 4.9.95, the respondent had to give evidence in the Kaithal Court.  (He  had  started  from Kaithal on  1.9.95  itself).    Thereafter,  he  had to give evidence in another Court on 6.9.95 and he could not  go  to Kharak Ramji  to  meet  the SMO.  Unfortunately, on 5.10.95, there were floods  and  the  roads  reaching  to  Jind  were blocked.   He  sent  a  letter  dated  7.9.95  to  the Civil Surgeon, Jind from Kaithal informing him that due to  floods he  was  unable  to  report at his head quarters and that he would be able to do so only after  the  floods  receded  and transport services  were  restored.  The respondent obtained certificates from the Courts  regarding  his  attendance  at those Courts.   He met the SMO and requested that his salary bill could be forwarded.  The Smo said that  the  respondent could  not  join  without  permission  of  the  Director and without explaining his absence to the Civil Surgeon.   These facts  were put on record in a separate letter dated 6.10.95 from Kaithal to the Director seeking permission to join duty at PHC, Kharak Ramji.  He had to stay at Kaithal from  7  to 10th  due  to floods, then he attended Court at Kaithal from 11 to 14th Sept.  1995, continued to stay at Kaithal due  to floods from 15  to 17th Sept.  1995.  Then 23rd to 25th were Gazetted holidays (24th was Sunday).  The  floods  continued and there  was  to  transport.  He attended Court again from 27th to 29th Sept.  and had to stay at  Kaithal  on  30.9.95 due to floods.    Ist  Oct.   was a Sunday, 2nd and 3rd Oct. were gazetted  holidays.    Respondent  approached  the  SMO Kharak Ramji  on  3.10.95  evening.    The  latter asked the respondent to see the Civil Surgeon, Jind.   The  respondent gave  a  letter  on  4.10.95  (duly  forwarded  by  the SMO) narrating the above facts and soliciting permission to  join duty w.e.f.  4.10.95  &  seeking salary from Sept.  95.  The Civil Surgeon addressed a letter to the Director on  4.10.95 seeking  the  letter’s  approval for the respondent joining. The respondent sent a further  letter  to  the  Director  on 6.10.95  giving  the  above  facts  and sought permission to join.  No reply  was  received.    Respondent  attended  the Criminal Court on 6, 12, 14, 18, 20, 27, 30.10.95, 9,14, 21, 23.11.95 for giving evidence as certified by the Court.  For the  first time he received a letter dated 16.11.95 from the Civil Surgeon, Jind that the respondent should join after

       "Rule 5.32 (B):

               (1)     At   any   time   a   Govt.         employee   has   completed   twenty   years         qualifying  service,  he  may,  by   gining         notice  of  not  less  than three months in         writing to the appointing authority  retire         from service.      However,   a  Government         employee may make a request in  writing  to         the  appointing  authority to accept notice         of less  than  three  months  given  reason         therefor.   On  receipt  of  a request, the         appointing  authority  may  consider   such         request  for  the curtailment of the period         of notice of three months on merits and  if         it is satisfied that the curtailment of the         period of notice of three months.

               (2)     The   notice  og  voluntary         retirement given under sub rule  (1)  shall         require   acceptance   by   the  appointing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

       authority subject to  rule  2.2.    of  pb.         C.S.R.  Vol.  II:

               Provided  that where the appointing         authority does  not  refuse  to  grant  the         permission for retirement before the expiry         of  the  period  specified  in sub rule (1)         supra,   the   retirement   shall    become         effective  from  the  date of expiry of the         said period:

               Provided  further  that  before   a         Govt.   employee  gives notice of voluntary         retirement with reference to  sub-rule  (1)         he  should  satisfy  himself  by menas of a         reference to the appropriate authority that         he has  in  fact,  completed  twenty  years         service qualifying for pension."

       Rule  2.2 (a) of the punjab Civil Service Regulation (Vol.II) referred to in Rule 5.32(b)(2) reads as follows : approval by the Director.  According to the  respondent,  in view  of  the above facts, the allegation that he was not on duty after 16.8.95 was not correct. No letter  was  received from   the   Commissioner  and  Secretary  to  Govt.  before 16.11.95.

       In the meantime, the 3 months  period  was  over  on 16.11.95.   The  respondent sent a letter on 23.11.95 to the Commissioner/Secretary, Health narrating the above facts and requested to treat him as retired w.e.f.  16.11.95 & pay him salary for Sept., Oct.  and upto 16.11.95  in  November  and grant him  retrial  benefits.    On 29.11.;95 a telegram was sent by the appellant (received by respondent  on  30.11.95) requesting him  to  join  at  kharak  Ramji  at  once.   The respondent sent a reply dated 2.12.95 to the Civil  Surgeon, Jind stating  that  he stood retired w.e.f.  16.11.95 and so there was no question of his joining.

       It is in the light of the above facts that it has to be  considered  if  the  respondent  must  be deemed to have retired. That is the crucial question. Question also  arises whether   the   allegation  that  the  respondent  was  "not attending to duties" after notice was relevant and could  be a   valid  ground  for  refusing  to  permit  the  voluntary retirement coming into force under Rule 5.32 (B).

       The said rule 5.32 (B) of the Punjab  Civil  Service Rules, (Vol.2) reads as follows :

       "Rule 2.2 (a)  Furture  good  conduct  is  an         implied   condition   of  every  grant  of  a         pension.  The (appointing authority)  reserve         to   itself   the  right  of  withholding  or         withdrawing a pension or any part  of  it  if         the  pensioner  be convicted of serious crime         or be  guilty  of  grave  misconduct.     The         decision of the (appointing authority) on any         question  of  withholding  or withdrawing the         whole or any part of pension under this  rule         shall be final and conclusive."

       It will  be  noticed  that  under  Rule  5.32  B,  a government employee who has completed 20 years of qualifying

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

service  may,  by giving notice of not less than 3 months in writing to the appointing authority,  retire  from  service. There  is  provision  for  requesting  for relaxation of the notice period of 3 months and for consideration thereof.  As to what the  appointing  authority  is  to  do  is  governed squarely by sub-clause (2).  That sub-clause states that the notice  of  voluntary  retirement given under sub-clause (1) "shall"  require  acceptance  by  the  appointing  authority subject  to  Rule 2.2 of the Punjab Civil Service Regulation (Vol.II).  Acceptance of the request is subject to Rule  2.2 of the  Rules.    But  the proviso to sub-clause (2) of Rule 5.32B states that if the permission to retire is not refused within the period specified in sub-clause (1) the retirement shall become effective  from  the  date  of  expiry  of  the period.   Therefore,  it  is  clear  that  if  a  person has completed 20 years qualifying service and has given a notice under rule  5.32B  of  3  months  (or  if  his  request  for relaxation  of  3  months  is  accepted),  then  the request "shall" he accepted subject to  invoking  the  provision  of Rule  2.2  of  the Punjab Civil Service Regulation (Vol.II). Under Rule 2.2, the "future good conduct" of an employee  is an implied  condition  of  every grant of pension.  In other words, what all it means is that even if the  acceptance  of the   voluntary   retirement   is  mandatory,  there  is  an obligation cast on the retired  employee  to  maintain  good conduct after  such  retirement.    The  words  "future good conduct" mean  good  conduct  after  retirement.    If   the employee  does  not  continue to maintain good conduct after retirement, then the govt.  can  withhold  or  withdraw  the pension  or  a part of it in case he is convicted of serious crime or in case he be guilty of  grave  misconduct.    Such decision  to  withhold  or  withdraw  the  whole  or part of pension would be final and conclusive, that is  to  say,  so far as  the governmental hierarchy is concerned.  It will be noticed that  Rule  2.2  does  not  obstruct  the  voluntary retirement  to  come into force automatically or expiry of 3 months and it only  enables  withdrawal  or  withholding  of pension   subject   to  certain  conditions,  to  a  retired employee.

       The employment of government servants is governed by rules.  These rules provide a particular age as the  age  of superannuation.   Nonetheless,  the  rules confer a right on the Govt.  to compulsorily retire and  employee  before  the age  of  superannuation  provided the employee has reached a particular age or has completed a particular number of years of qualifying service in case it is found that  his  service has not  been  found  to  be  satisfactory.   The rules also provide that an employee who has completed the  said  number of  years  in  his  age  or who has completed the prescribed number of years of qualifying service could give  notice  of (say)  three  months that he would voluntarily retire on the expiry of the said period of three months.  Some  Rules  are couched in language which results in an automatic retirement of  the  employee wpon expiry of the period specified in the employee’s notice.  On the other hand, certain Rules in some other departments are couched in  language  which  makes  it clear  that  even upon expiry of the period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be  communicated. The relationship of master and servant in the latter type of rules  continues  after  the  period specified in the notice till such acceptance is communicated; refusal of  permission could  also  be communicated after 3 months and the employee continues to be in  service.    Cases  like  Dinesh  Chandra

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

Sangma vs.   State of Gujarat & Others 1978 (2) SCC 202; and Union of India & Others vs.  Sayed Muzaffar Mir  1995  Supp. (1)  SCC  76  belong to the former category where it is held that upon expiry of the  period,  the  voluntary  retirement takes  effect automatically as no order of refusal is passed within the notice period.  On the other hand HPMC vs.  Suman Behari Sharma  1996  (4)  SCC  584  belongs  to  the  second category  where  the Bye-laws were interpreted as not giving an option "to retire" but only provided a limited  right  to "seek" retirement thereby implying the need for a consent of the  employer  even if the period of the notice has elapsed. We shall refer to these two categories in some detail.

       In Dinesh Chandra Sangma’s case 1977  (4)  SCC  441, this  Court  was  dealing with F.R. 56 (c) as it stood then. The Court pointed out that FR 56(b) and FR 56(c) referred to rights respectively  conferred  on  the  State  and  on  the employee.  FR  56(b)  conferred  a  right  on  government to compulsorily retire an employee in public interest by giving him notice of not less than 3 months in writing or 3  months pay and allowances in lieu of such notice, after he attained 50  years  of  age  or  had  completed  25 years of service, whichever was earlier. Correspondingly FR, 56(c)  stated  as follows :

       "FR 56(c): Any Govt. 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.

It  was held by the three Judge Bench that it was clear that effect of FR 56(c) was  statutory  unlike  in  the  case  of contracts  of  employment  requiring  an  express  order  of acceptance of the retirement notice. It was stated (p.445):

       "There was no  question  of  acceptance  of  the         request  for  voluntary  retirement by the Govt.         when the Govt.    servant  exercises  his  right         under FR 56(c)."

It was again stated (p.447):

       "FR 56 is one of the statutory rules which binds         the Govt. as well  as  the  Govt.  Servant.  The         condition  of service which is envisaged in Rule         56(c) giving an option in absolute  terms  to  a         Govt.  Servant  to voluntarily retire with three         months’ previous notice,  after  he  reaches  50         years  of  age  or  has  completed  25  years of         service, cannot  therefore  be  equated  with  a         contract   of   employment   as   envisaged   in         Explanation 2 to Rule 119."

and at (p.447-448) as follows:

       "The appellant has voluntarily retired by  three         months’   notice,  not  in  accordance  with  an         express or  implied  term  of  his  contract  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

       employment,  but  in  pursuance  of  a statutory         rule."

       Another three Judge Bench in B.J.Shelat’s case  1978 (2)  SCC  202 was dealing with Rule 161 (2)(i) of the Bombay Civil Service Rules which contained a proviso similar to the proviso (b) or FR 56(K) to the effect that "it shall be open to the appointing authority to withhold permission to retire to a Govt.  servant who is under suspension, or against whom departmental proceedings are pending  or  contemplated,  and who seeks  to retire under this sub-clause".  It was noticed that  no  suspension  was  in  force  and  no   departmental proceedings were pending but on facts, it could be said that a departmental proceeding was noticed that no suspension was in  force  and no departmental proceedings were pending but, on facts, it could be said that  a  departmental  proceeding was under  contemplation.  However, on a reading of the Rule and the proviso, it was  held  that  inasmuch  as  no  order refusing  permission  was  passed or communicated within the notice  period,  the  voluntary   retirement   took   effect automatically.  The Court observed that this result followed even  though  the  right to retire conferred on the employee was not as absolute as in Dinesh Chandra Sangma’s  case  but was a qualified right.  The Court held (p.205) as follows:

       "A right is conferred on the Govt. 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 ..........

       But for the proviso, a Govt. servant would be at         liberty to retire by giving not less than  three         months’  notice  in  writing  to  the appointing         authority on attaining a  prescribed  age.  this         position  has  been  made clear by this Court in         Dinesh Chandra Sangam vs. State  of  Assam  1977         (4)  SCC 441 where the Court was considering the         effect of the  (Assam)  Fundamental  Rule  56(c)         ........"

The Court further stated (p.206) :

       "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 Govt.  servant ....         Thus the permission to retire can  be  withheld         by  the  appointing  authority  either when the         Govt.  servant is under suspension  or  against         whom  departmental  proceedings  are pending or         contemplated........No departmental  proceeding         was  pending  but  on the facts, one cannot say         that a proceeding was not under contemplation."

Having stated that the right  conferred  on  the  government servant was not absolute but conditional and that one of the conditions,   namely,  that  departmental  proceedings  were contemplated, was in existence which could have  been  taken advantage of  by  the  Govt.    the  Court  held  (p.207) as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

follows:         "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 are of the opinion that the  proviso         contemplates a positive action by the appointing         authority."

and it was finally declared (p.207):

       :For  the  proviso  to  become  operative, it is         necessary that the government  should  not  only         take  a decision but communicate it to the govt.         servant  .........  admittedly  the   order   of         suspension  was not communicated before the date         of supernnuation".

And explaining the inditical proviso in the proviso  (b)  to FR 56(k), this Court again reiterated that (p.208) :

       "It  is incumbent on the govt. to communicate to         the government servant its decision to  withhold         permission  to  retire  on  one  of  the grounds         specified in the proviso."

It was further made clear that the appointing authority

       "has no jurisdiction to take disciplinary action         against a government servant who had effectively         retired."

It was held (p.209) that :

       "disciplinary  action  cannot be taken after the         date off retirement

Therefore,  it  was necessary to communicate the decision of refusal of  permission  before  the  expiry  of  the  notice period.

       The third case which falls in the first category  is the one  in  Union of India & Others vs.  Sayed Muzaffar Mir 1995 Supp.  (1) SCC 76 decided by a  Bench  of  two  learned Judges.   In  this  case,  the  above-said  two rulings were followed.  The case arose under  Rule  1802  (b)(1)  of  the Railway Establishment  Code.    In that case, the respondent had given a notice on 22.7.85 of 3 months to the Railways to retire from service as visualised  by  Rule  1802(b).    The period  expired  on  21.10.1985 and the order of removal was passed on 4.11.1985.  The  proviso  to  the  Rule  permitted withholding of permission to retire in case the employee was under suspension.    As  a  fact,  the  employee  was  under suspension at the relevant time and  this  could  have  been taken advantage of by the govt.  In fact, Rule 1801(d) which started   with   a  non-obstante  clause,  stated  that  the competent authority might require a  railway  servant  under suspension  to  continue  his service beyond the date of his retirement in which case he shall not be permitted  by  that authority  to  retire  from service and shall be retained in service till such time as required by that  authority.    It was  held  that even though the officer was under suspension and the request for retirement could  be  denied,  still  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

order  withholding  such  permission  or  requiring  him  to continue was required to be passed.  It was "admitted"  that no such  order  was passed.  Therefore, it was held that the employer had not exercised a right given to  it  under  Rule 1801(d).   The Court further observed that in Dinesh Chandra Sangma’s case 1977 (4) SCC 441 it was held  that  "the  same does  not  require  acceptance  and comes into effect on the completion of the  notice  period"  and  that  decision  was followed in  B.J.Shelat’s  case 1978 (2) SCC 202.  The Court finally held :

       "The period of notice in the present case having         expired on 21.10.1985, and the  first  order  of         removal having been passed on 4.11.1985, we held         that  the  Tribunal  had  rightly  come  to  the         conclusion that the order of removal was non-est         in the eye of law."

       Thus form the aforesaid three decisions it is  clear that  if the right to voluntarily retirement is conferred in absolute terms as in Dinesh Chandra  Sangma’s  case  by  the relevant  rules  and  there  is  no  provision  in  Rules to withhold permission in certain contingencies  the  voluntary retirement comes into effect suthomatically on the expiry of the period  specified  in  the  notice.   If, however, as in B.J.Shelat’s case and as in Sayed Muzaffar Mir’s  case,  the concerned  authority  is empowered to withhold permission to retire if certain  conditions  exist,  viz.    in  case  the employee  is  under  suspension  or  in  case a departmental inquiry is pending or is contemplated, the mere pendency  of the  suspension or departmental inquiry or its contemplation does not result in the notice of  voluntary  retirement  not coming into  effect on expiry of the period specified.  What is further needed is that the concerned authority must  pass a  positive  order withholding permission to retire and must also communicate the same  to  the  employee  as  stated  in B.J.Shelat’s  case  and  in Sayed Muzaffar Mir’s case before the expiry of the notice period.  Consequently, there is  no requirement  of  an  order of acceptance of the notice to be communicated to  the  employee  nor  can  it  be  said  that non-communication   of   acceptance  should  be  treated  as amounting to withholding of permission.

       Before  referring  to  the  second category of cases where the rules require a positive acceptance of the  notice of  voluntary  retirement  and  communication thereof, it is necessary to refer to the decision  of  this  Court  in  Dr. Baljit Singh vs.  State of Haryana 1997 (1) SCC 754 strongly relied upon by the learned counsel for the appellants and to Power Finance Corporation  Ltd.    vs.   Pramod Kumar Bhatia 1997 (4) SCC 280.  the format case arose under Rule  5.32(b) of the  Punjab  Civil  Service  Rules.   That rule extracted earlier contains an express  provision  in  the  proviso  to sub-section   (2)   that   the   retirement   takes   effect automatically  if  refusal  is  not  communicated  within  3 months.   In  that  case,  when the employee gave notice for voluntary retirement  on  20.9./1993,  criminal  cases  were pending against   him.     After  expiry  of  3  months,  on 25.2.1994, the competent authority declined  to  accept  the notice.  A two Judge Bench of this Court, however, held that the voluntary retirement did not come about automatically on the  expiry  of  the  notice  period  but that it could take effect only upon acceptance of the notice by govt.  and that the acceptance must also be communicated and till  then  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

jural relationship  of  master  and servant continues.  This Court referred only to the decision of the two  Judge  Bench in Sayed  Mazaffar  Mir’s  case  1995  Supp.  (1) SCC 76 and stated that case was to be confined to its own facts.    The two Judge Bench of this Court in Dr.Baljit Singh’s case 1997 (1)  SCC  754 did not notice that there were two three Judge Bench cases in Dinesh Chandra Sangma and Shelat  taking  the view  under  similar  rules  that a positive order was to be passed within the notice period  withholding  permission  to retire  and  that the said order was also to be communicated to the employee during the said period.  By stating that  an order of acceptance of the notice was necessary and that the said  acceptance  must  be  communicated to the employee and till that was done  the  jural  relationship  continued  and there  was  no  automatic  snapping  thereof  on expiry of 3 months period, the Two three Judge Bench  cases  which  were not brought  to  its notice.  In the above circumstances, we follow the two three Judge Bench cases for deciding the case before us.

       Learned  counsel  for the appellant also relied on a two Judge Bench decision in Power Finance  Corporation  Ltd. vs.  Pramod  Kumar Bhatia 1997 (4) SCC 280.  That was a case where the letter of voluntary retirement  was  conditionally accepted subject to payment of dues and the employee wrote a further  letter  seeding  adjustment thereof but before that was done the scheme itself was withdrawn.  There  are  again some  observations  made  to  the  effect that there must be acceptance  of  request  to  retire  and  that  it  must  be communicated.   Neither Dinesh Chandra Sangma nor Shelat was referred to.  In our opinion, the express provision  in  the proviso  to  sub-rule  2 of Rule 5.32B in the case before us does not  permit  such  a  view  to  be  taken.    The  said observations  again  run contrary to the decision in the two three Judge Bench cases referred to above.  Our comments  on Baljit  Singh  apply  equally  to  this  case, so far as the observations are concerned.

       We then come to the second category of  cases  where the  rules  require that an order of acceptance of notice be passed  to  make  the  voluntary  retirement  effective.  In H.P.M.C.  vs.  Suman Behari Sharma 1996 (4) SCC 584, it will be noticed, the principle in Dinesh  Chandra  Sangma’s  case was  accepted  but  the case was distinguished on the ground that the Bye-law 3.8(2) in HPMC  case  provided  differently and  that  under that Bye law an employee could be permitted at his request to retire on completion of 25  years  service or  50  years  of age. Sub-para (5) of Bye-law 3.8 stated as follows:

       "(5) :  Notwithstanding the provision under para         (2) above, the Corporation employees who have  a         satisfactory service record of 20 years may also         seek   retirement   from   the  service  of  the         corporation after giving three months’ notice in         writing to the  appropriate  authority.  Persons         under  suspensions  would  not  be retired under         this  clause  unless  proceedings  of  the  case         against them are finalised ...".

While  Sub-clause (2) speaks of 25 years service, sub-clause (5) speaks of 20 years service.

       The employee applied  on  26.11.1990  for  voluntary retirement  effective from 30.11.1990 and also requested for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

waiver of notice of 3 months. He  did  not  report  to  duty right  from 1.12.1990. Earlier on 12.12.1989, a charge sheet was issued against him for certain acts  of  misconduct.  On 26.12.1990 he filed a reply to the chargesheet. On 22.8.1992 another  chargesheet was served for unauthorised absence and one more  on  18.9.1992.  On  30.9.1992  he  approached  the Tribunal  contending  that  he  stood retired on expiry of 3 months from notice, w.e.f. 26.2.1990. The Tribunal  accepted the  said  plea.  Reversing  the order of the Tribunal, this Court held while distinguishing Dinesh Chandra Sangma’s case and other similar High Court Judgemnts, that clause  (2)  of the  Bye  law  merely gave a right to make a request and the request would become  effective  only  if  permitted.  Under clause (2) of the Bye law, it was a ’right to a request’ and not  ’  a  right to retire’. If the request was not accepted and permission was not granted, the employee could not claim that there was an automatic  retirement  on  expiry  of  the period.  Even  under  sub-clause  (5) while it was true that there was a non-obstante clause, it was only an exception to clause (2) to a limited extent i.e. completion of  20  years satisfactory  service  [rather than 25 under clause (2)] but the grant of ’permission’ to the request seeking  retirement was  necessary  even  under  the  sub-clause (5) and was not dispensed with. If under clause (2) a person who had put  in 25  years  had to seek to retire and had to be ’permitted to retire’, a person with only 20 years  service  under  clause (5)  could  not  have been placed on a better footing it was held. The Court emphasised (p.588-589):

       "The words ’seek retirement’ in para 5  indicate         that  the  right which is conferred by it is not         the right to retire  but  a  right  to  ask  for         retirement.   The  word ’seek’ implies a request         by the employee and corresponding acceptance  or         permission by  HPMC.  Therefore, there cannot be         automatic  retirement  or  snapping  of  service         relationship on expiry of three months period."

On  that basis, it was held that though the rejection of the request was not communicated within the notice period, there was no automatic retirement. There are no such provisions in the case before us.

       In  the  case before us sub-clause (1) of Rule 5.32B contemplates a ’notice to retire’ and not a request  seeding permission  to retire. The further "request" contemplated by the sub-section is only for seeding  exemption  from  the  3 months  period.  The  proviso  to  sub-clause  (2)  makes  a positive provision that "where the appointing authority does not refuse to grant the permission for retirement before the expiry  of  the  period  specified  in  sub-rule  (1),   the retirement shall become effective from the date of expiry of the  period  specified in sub-rule (1), the retirement shall become effective from the date of expiry of the said period. The case before us stands on a stronger footing than  Dinesh Chandra  Sangma’s  case so far as the employee is concerned. As already stated Rule 2.2 of  Punjab  Civil  Service  Rules Vol.II  only  deals  with  a  situation  of  withholding  or withdrawing pension to a person who has already retired.

       For the aforesaid reasons, we follow the  two  three Judge  judgments in Dinesh Chandra Sangma and B.J.Shelat and the two judgment in Sayed Muzaffar Mir’s case in  preference

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

to the two Judge judgment in Dr. Baljit singh’s case.

       So far as the plea of the State in regard to absence from  duty  during  the notice period is concerned, the High Court has shown that it is unsupportable on  facts.  In  any event,  in  view  of the express provision in the proviso to sub-rule (2) of  Rule  5.32B  referred  to  above  requiring communication  of  rejection  within  the notice period, the said allegations of absence even if true,  cannot  help  the State.

       For  the  aforesaid  reasons the appeal preferred by the State is dismissed  but  in  the  circumstances  without costs.  The  order  of  the  High  Court will be implemented within 3 months from the receipt of this order.