PETITIONER: B. J. SHELAT Vs. RESPONDENT: STATE OF GUJARAT & ANR. DATE OF JUDGMENT28/03/1978 BENCH: KAILASAM, P.S. BENCH: 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 The Special Leave Petition filed by him in this Court was allowed to be withdrawn reserving to him the right to agitate the question whether disciplinary action could be taken against him after retirement.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 proviso : 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] JUDGMENT:
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 Govern-
ment 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.
561