Union of India Vs. Sayed Muzaffar Mir  INSC 483 (20 September 1994)
B.L. (J) Hansaria B.L. (J) Kuldip Singh (J)
1995 AIR 176 1995 SCC Supl. (1) 76 JT 1994 (6) 288 1994 SCALE (4)258
Judgment of the Court was delivered by B.L. HANSARIA, J.- The Central
Administrative Tribunal, New Bombay Bench, was approached by the respondent
seeking two declarations in the main that he voluntarily retired from service
with effect from 22-10-1985 and that all proceedings against him pending as on
that date were of no consequence.
Tribunal after having applied mind to the charges, which on inquiry were found
established, came to the conclusion that the respondent had been rightly found
guilty of the charges, but it set aside the order of removal passed by the
appellate authority, who on appeal being preferred by the respondent had
awarded this punishment instead of dismissal, which was the punishment
inflicted by the disciplinary authority. This order of the Tribunal has been
assailed in this appeal.
Tribunal had taken the aforesaid view because the respondent had by a letter
dated 22-7-1985 given a three months' notice to the
Railways to retire from service as visualised by Rule 1802(b) of Indian
Railways Establishment Code. The period of three months had expired on 21-10-1985 and the order of removal was first passed on 4-11-1985. It was held by the Tribunal that the respondent was
entitled under the law to seek premature retirement; and, therefore, the order
of removal has to be treated as non est in the eye of law.
learned Additional Solicitor General, Shri Ahmed appearing for the appellants,
has contended that the right of premature retirement conferred by the aforesaid
provision could be denied to a railway servant in case he be under suspension,
as was the respondent at the relevant time.
is what finds place in the proviso to the aforesaid provision. The Additional
Solicitor General also + From the Judgment and Order dated 22-8-1991 of the
Central Administrative Tribunal, Bombay in O.A. No. 106 of 1987 77 seeks to
place reliance on what has been stated in Rule 1801(d) which starts with non-obstante
clause and states that the competent authority may 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.
on these provisions the contention advanced is that though the respondent had
sought premature retirement by his letter dated 22-7-1985 and though the three
months' period had expired on 21-10-1985, the Railways were within the rights
not to permit the premature retirement because of the suspension of the
respondent at the relevant time, which had come to be ordered in the course of
a disciplinary proceeding which was then pending against the respondent.
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 authority concerned thought that it would be better to
see off the respondent by allowing him to retire.
second aspect of the matter is that it has been held by a three-Judge Bench of
this Court in Dinesh Chandra Sangma v. State of Assam 1, 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- Judge Bench in B.J. Shelat
v. State of Gujarat2.
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 hold that the Tribunal had
rightly come to the conclusion that the order of removal was non est in the eye
the reasons aforesaid, the appeal is dismissed. We, however, make no order as