State of
Haryana & Ors Vs. S.K. Singhal [1999] INSC
154 (16 April 1999)
M.Jagannadha
Rao, S.N.Phukan M.Jagannadha Rao.J.
JUDGEMENT
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 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 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 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 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 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
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 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 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 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 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.
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