B. J. Shelat Vs. State of Gujarat
& ANR [1978] INSC 73 (28 March 1978)
KAILASAM, P.S.
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this Court was allowed to be withdrawn reserving to him the right to agitate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 to communicate to the Government servant its decision to
withhold permission to retire on one of the grounds specified in the provision
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]
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 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 Government 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 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
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 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 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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