JUDGMENT
Sarojnei Saksena, J.
1 .The petitioner is seeking quashment of order dated 3.9.1992 (Annexure P-4) passed by the respondent No.3 whereby the petitioner has been prematurely retired from government service. He is also seeking quashment of order dated 2.8.1995 (Annexure P-6) whereby his representations has been rejected.
FACTS OF THE CASE
2. The petitioner joined Punjab Police on 5.4.1961 as a Probationer Assistant Sub Inspector. On being confirmed on 5.4.1964, he was promoted as Inspector on 20.8.1970, Deputy Superintendent of Police on 5.7.1982 and finally Superintendent of Police on 22.1.1990. While working as Superintendent of Police headquarters, he fell ill, suffered chest pain, back strain and leg pain from January to March, 1991. He got treatment from P.G.I. as well as from Government Hospital situated in Sector 22, Chandigarh, During this period, he was on leave.
3. The petitioner applied for ex-India leave w.e.f. 15th April, 1991 to 12th July, 1991 to go to Canada. Leave was sanctioned. On 3rd July, 1991 the petitioner left Canada for United Kingdom, where he wanted to stay only for a week and was scheduled to come back to India on 11th July, 1991, but on 10th July, 1991, he fell ill and was constrained to stay in England for treatment. From 10th July, 1991 till 7th April, 1992, the petitioner continued to send his medical certificates issued by Dr. P.G.K. Dawe of Blackheath London, who found him unable to travel back to India due to his ear infection, chest pain and back pain. During this period he was also under treatment of two doctors of Chariton Road Surgery Blackheath, two Medical Specialists and one Physiotherapist of the District Hospital Greenwich, London. Medical certificates dated 10.7.1991, 1.8.1991, 20.8.1991, 17.9.1991, 12.11.1991, 13.12.1991, 7.2.1992 and 7.4.1992 were sent to the Additional Director General, Intelligence, Punjab requesting for extension of leave.
4. The petitioner applied for leave on medical ground. In reply to his application for extension of leave, the Additional Director General, Intelligence, Punjab, vide his letter No. 14068/EDSB-1 dated 29.5.1992 (Annexure P-2) intimated the petitioner that no further extension in leave would be granted and directed him to report on duty immediately, failing which appropriate action would be taken against him under the relevant rules. The petitioner sent another letter on 22.6.1992 (Annexure P-3) to the Additional Director General of Police, Intelligence, Punjab, in continuation of his application dated 7.4.1992 reiterating that he is again thoroughly checked up by Dr. P.G.K. Dawe, who has advised him not to travel for another three months and thereby he expressed his inability to join duty on 2.9.1992 as directed by the letter dated 29.5.1992 (Annexure P-2). In this letter, he again prayed that his ex-India leave be extended. In concluding lines of this letter, requested that in case his leave could not be extended as per rules. He should be given leave without pay as he was sick and unable to join the duties till 2.9.1992 and in case the rules do not permit to grant him leave without pay on medical ground, he may be allowed to retire as he is unable to perform his duties with his ill health. The petitioner received order dated 3.9.1992 (Annexure P-4) whereby he was prematurely retired under Rule 3(2) of the Punjab Civil Services (Pre-mature retirement) Rules, 1975 (hereinafter referred to as the ‘Rules’) with effect from 2.9.1992.
5. Petitioner’s contention is that he was to attain superannuation age on 31.8.1997 whereas he was prematurely retired on 2.9.1992. He had put in 32 years of service and was 54 years old at the time of his retirement. His pay was stopped by the department though his 12 days full pay and 600 days half pay leave was due. This action of the respondents is arbitrary, against the Rules and contrary to the principles of natural justice. The petitioner averred that his letter (Annexure P-3) could not be made the basis for his pre-mature retirement. As in this letter he has primarily requested for extension of his ex-India leave and he also requested that the leave may be granted to him on medical ground and under those pressing circumstances, he did mention in his letter (Annexure P-3) that if the rules do not permit to grant him leave without pay on medical ground, he may be kindly allowed to retire as he is unable to perform his duties with this ill health. This was not a notice as is required to be given for pre-mature retirement under the Rules, 1975. He was pre-maturely retired from service for extraneous reasons, which cannot be sustained in the eye of law being arbitrary, unconstitutional and against the Rules. No opportunity of hearing was given to him before passing the order dated 3.9.1992 (Annexure P-4). He had an excellent service career and therefore, the department could not have prematurely retired him without giving him one month’s prior notice. When he cam back to India, he submitted his representation dated 4.1.1995 (Annexure P-5), which was also dismissed by the Director General of Police, vide his order dated 2.8.1995 (Annexure P-6), which is a non-speaking order. Hence, he is seeking quashment of both these orders. Annexures P-4 and P-6 and praying that the writ petition be allowed.
6. Respondents 1 to 3 in their reply raised preliminary objections that the petitioner filed a representation (Annexure P-5) which was disallowed vide order dated 2.8.1995 (Annexure P-6). Before that he had sent hand-written letter dated 21.10.1993 (Annexure R-1/1), wherein he requested that his pension case be finalised as early as possible, thereby he accepted his retirement and sought its conformation by asking for payment of all pensionary benefits, which were released to him. Hence, it is objected that by filing this writ petition, he has taken a somersault of service rendered by him. Respondents contended that on receipt of petitioner’s letter dated 22.6.1992 (Annexure P-3) wherein he has stated that he is unable to work or travel for three months due to back strain and also mentioned that in case the rules do not permit to grant him leave without pay on medical ground, he may be allowed to retire as he is unable to perform his duties with this ill-health. Accordingly, accepting his prayer, he was retired from service with effect from 2.9.1992 by the State Government. It is objected that according to note 1 of Rule 8.13 of CSR Vol. 1, Part-I, the possession of the medical certificate does not itself confer upon the Government employee concerned any right to leave. It is also averred that as per Rule 8.16 (1) of CSR Vol.1, Part-I the grant of a medical certificate should be forwarded to the authority competent to grant leave and the orders of the authority should be awaited. A government employee, who absents himself from duty without permission of the competent authority is liable to have his absence treated as absence from duty without leave. Under Rule 8.15 leave cannot be claimed as of right when the exigencies of public services so require discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. The petitioner was continuously sending applications for extension of leave and medical certificates at the time when his services were urgently required in the State as terrorism was at its peak. As soon as peace was restored in the State the petitioner requested to cancel his retirement orders after more that two years. The petitioner’s representation for cancellation of his voluntarily retirement order was rightly rejected by the State Government vide order dated 26.7.1995.
RIVAL CONTENTIONS
7. The petitioner’s contention is that under the pressing circumstances of his ill-health and instance of the department to join duty immediately; in that disturbed state of mind and falling health, he sent the application (Annexure P-3), which was required to be read as a whole. Primarily, by sending this application, he asked the department to grant him leave on medical ground, if no leave is due then leave without pay on medical grounds be granted to him and finally in the alternative, he submitted that in case as per rules no leave could be granted to him on medical ground, he may be allowed to retire as he is unable to perform his duties with this ill-health. Thus, the petitioner’s learned counsel valiantly argued that the application (Annexure P-3) if read as a whole, cannot be interpreted as a petition for voluntary retirement. In the petition itself the petitioner has reproduced the Rules of voluntary retirement. He has not given any notice to the department under these rules seeking his voluntary retirement. On these facts and circumstances, the counsel submitted that in case the department was not inclined to grant him leave on medical ground or extraordinary leave on medical ground, the department ought to have given him an opportunity to explain his circumstances and to extend his leave enabling him to join his duties on being recovered, but the department hurriedly on the basis of the last prayer made in the letter, Annexure P-3, treated this letter as a notice for premature retirement and passed the order, Annexure P-4, which is arbitrary, illegal and against the principle of natural justice.
8. To support his contention, he has relied on Arun Kumar Gupta v. High Court of H.P. and Anr., 1993(2) Recent Services Judgments 449, Mrs. Manju Gupta v. Haryana Agricultural University, 1990(2) Recent Services Judgments 416 and Delhi Electricity Supply Undertaking v. Tara Chand, 1978(2) S.L.R. 425.
9. Respondents’ learned counsel refuting ail the contentions raised by the petitioner’s learned counsel submitted that the petitioner was posted as a Superintendent of Police (headquarters). No doubt, from January, 1991 to March, 1991, he was on leave on medical ground which was a sanctioned leave, but later on he resumed his duties and thereafter in April, 1991 be asked for ex-India leave w.e.f. 15.4.1991 to 12.7.1991, which was also granted. He left for Canada and thereafter he came back to India in October, 1994. During this period, the Punjab State was facing the most critical time of terrorists activities. From 10.7.1991 till 22.6.1992 the petitioner was continuously sending stereo-typed medical certificates wherein his ailment is being described as back strain and then certifying that he is unable to travel for a particular period, is unable to follow his occupation. No other document was sent along with these medical certificates to show that really he was ill. Initially, his leave was sanctioned, but ultimately, letter dated 29.5.1992 (Annexure P-2) was sent to the petitioner to immediately report on duty. In reply to this letter, the petitioner sent letter (Annexure P-3). No doubt, in this letter, he has mentioned that he is under treatment of Dr. P.G.R. Dawe, who has observed that he is unable to work or travel for three months due to back strain. The medical certificate to that effect was also attached with this letter and the petitioner prayed to extend his leave without pay till 2.9.1992, but in the last para he has specifically written “In case the rules do not permit your honour to grant me leave without pay on medical ground, I may kindly be allowed to retire as I am unable to perform my duties with this ill-health.” On the basis of this request, this letter was treated as a notice for voluntary retirement which was accepted and order dated 26.8.1992 (Annexure P-4) was passed by the State Government.
10. Respondents’ learned counsel strongly stressed that the order dated 26.8.1992 (Annexure P-4) was conveyed to the petitioner and thereafter petitioner sent handwritten letter dated 21.10.1993 (Annexure R-1/1), whereby he made a prayer that after the expiry of ex-India leave granted to him earlier, commuted leave on medical ground be granted to him and after commuted leave exhausts, leave of any kind due may be sanctioned. In the last para, he has requested that his pension case may kindly be finalised as early as possible and his CPF and GIS may kindly be paid at the earliest.
11. From this letter, it is evident that till he was in England, he accepted that he applied for voluntary retirement and his prayer has been accepted by the government. As soon as he landed in India, it dawned upon him to seek quashment of these orders. Hence, he submitted a representation dated 4.1.1995 (Annexure P-5), which was rightly rejected by the department.
12. Respondents’ learned counsel relying on Baikuntha Natha Das and Anr. v. Chief District Medical Officer, Baripada and Anr., A.I.R. 1992 Supreme Court 1020 submitted that the order of compulsory retirement is based on subjective satisfaction. The government has to consider entire service record of the employee. As the nature of the function to compulsory retirement is not quasi-judicial in nature and the action has to be taken on the subjective satisfaction of the government, there is no room for importing the said facet of natural justice audi alteram partem in such a case, more particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma. This does not mean that judicial scrutiny is excluded altogether. Such matters, can be interfered with by the High Court if it is found that the order was passed malafidely or it is based on no evidence or it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material.
13. After hearing the rival contentions, in my considered opinion, the writ petition deserves dismissal.
14. So far as the judgment of Baikuntha Nath’s case (supra) is concerned, it has no application in the present case because that was a case of compulsory retirement and the petitioner’s case is of voluntary retirement.
15. The case relied on by the petitioner’s learned counsel are also distinguishable on facts.
16. In Tara Chand’s case (supra), respondent-Tara Chand sent the letter of resignation wherein he detailed a catalogue of grievances. He sent 9 copies of this letter of resignation to various officers of DESU. He also mentioned that he is in bad health and on sick leave and is compelled by his superiors to write the letter. He has specially mentioned “misdeeds” of his immediate superiors and also submitted that he can prove all these allegations by adducing documentary evidence before the Enquiry Committee. In that letter he also prayed that he be transferred to some other Station, which may be nearer to DESU Colony. Considering all these facts mentioned in the letter, the Division bench held that the purport or tenor of the letter is to be construed, but not on the basis of how the parties have understood it. In the opinion of the Division Bench, this letter was nothing but a protest against his officers and hence, their Lordships have arrived at the conclusion that it was not a letter of resignation.
17. The facts of Manju Gupta’s case (supra) are also distinguishable. In that case Manju Gupta while proceedings on study leave executed a bond in favour of the University to serve it for another five years. From October, 1986 she was on maternity leave, She gave birth to a child. Because of post natal complication, she was compelled to extend her medical leave, which was declined and was asked to join. The University also threatened that in case she does not join, disciplinary action will be taken against her. Under those circumstances, she joined her duties for a week. Her another request to grant her leave was again declined by the University. Under these compelling circumstances, she submitted her resignation and also prayed for waiver of condition of fulfilling 5 years’ service. When she was asked to refund the amount of salary and other expenses, she sought withdrawal of her resignation, which was declined. While deciding her writ, the learned Judge observed that under the aforementioned circumstances when she felt disgusted and frustrated, then she submitted her resignation on 1.6.1987. Action was also considered arbitrary and artificial distinction was made to distinguish her with that of Miss Indra Singh. Challenging this order, she filed the writ petition. On these ground, her petition was accepted.
18. Arun Kumar Gupta’s case (supra) is totally on different premise. He was a driver employed by the High Court of Himachal Pradesh. He was suffering from mental disease described as schizophrenia. He was under treatment in Indira Gandhi Medical College, Shimla for his ailment. In his disturbed state of mind, he submitted his resignation. The office recommended that this resignation be accepted after obtaining opinion of the Medical Board, but the Registrar submitted his note that resignation be accepted and hence, the Chief Justice of the High Court accepted his resignation. When this was assailed in a writ petition, the Division Bench of Himachal Pradesh High Court held that “the facts and circumstances on record leave no doubt that the act of tendering resignation by the petitioner was not voluntary but was an act of an imbalance mind.”
19. In this case, as is evidence from all the certificates submitted by the petitioner that initially, Dr. P.G.R. Dawe was opining that he is suffering from back pain from disk, but from 17.9.1991 onwards he was issuing certificates certifying that he is suffering from back strain and is unable to travel or work for two months-three months and to follow his occupation. It seems that they are just copies of the certificates issued on various dates by the said doctor. No other document was sent by the petitioner to the department to consider that he is really suffering so much that he is unable to come back to India to resume his duties. He availed ex-India leave from 15.4.1991 and thereafter availing leave period till 10.7.1991, he started sending applications with such stereo-typed medical certificates to the department seeking extension of leave on the ground of ill-health. When he received department’s letter, dated 29.5.1992 (Annexure P-2) to immediately resume his duties, failing which appropriate action will be taken against him, he sent letter dated 22.6.1992 (Annexure P-3) relevant portion of which is reproduced below:-
“In case the rules do not permit your honour to grant me leave without pay on medical ground, I may kindly be allowed to retire as I am unable to perform my duties with this ill-health.”
Thus, it is apparent that when his services were badly required by the State, he on the alleged ground of his illness that too of back strain only, declined to resume duties and refused to render much needed service at that hour of need to the department. Further he submitted that in case leave is not granted to him as per rules, he may be allowed to retire. The department accepted this letter as a notice for voluntary retirement and passed the impugned order dated 26.8.1992 (Annexure P-4). Under the aforesaid facts and circumstances, it cannot be said that it was not a case of voluntary retirement. If the petitioner would not have really meant this letter to be read as a letter of voluntary retirement, he would not have sent letter dated 21.10.1993 (Annexure R-1/1) to the Additional Director General of Police Intelligence praying that his pension case be finalised soon and GPF and GIS be paid to him. He cam back to India in October, 1994 and by then as peace prevailed in the State of Punjab, he thought of withdrawing his resignation and submitted representation dated 4.1.1995 (Annexure P-5) which was rightly declined by the department.
20. The petitioner was a member of disciplined force. He was not supposed to take such a plea and to feign illness just to avoid performing his duties at that time when the State of Punjab was engulfed in the wave of terrorists. When he came back to India, he cogitated over his previous indiscreet decision and submitted the representation (Annexure P-5). This feint move of the petitioner was rightly declined by the government.
21. Thus, in my considered view, respondents have rightly arrived at the conclusion that Annexure P-3 was a letter seeking voluntary retirement. There was no compelling circumstances for the petitioner to send such a letter except his deliberate move, may be an indiscreet decision not to join his official duties when the State of Punjab was badly needing services of such police officers.
22. Finding no merit in the writ, it is hereby dismissed with costs which are quantified at Rs. 2000/-