JUDGMENT
Navin Sinha, J.
1. The present writ application seeks quashing of Annexures 19, 20 and 29. The impugned orders visit the petitioner with punishments by withholding of his entire pension and gratuity, and that for the period of suspension nothing beyond the substistance allowance would be paid to him.
2. The petitioner was appointed in the services of the Irrigation Department of the State of Bihar on 29.8.1967. While he was posted at Aurangabad in the Mechanical Division as Executive Engineer he submitted a letter dated 16.1.1995 presently at Annexure 14 to the effect that he had completed more than 30 years of service and therefore desired to retire voluntarily. If this be not permissible, “the same may be treated as his letter of resignation in presenti. Thereafter the petitioner contested the election to the State Assembly unsuccessfully in February 1995 as an independent candidate. On 15.4.1995 the petitioner sought to withdraw the letter of his voluntary retirement/resignation dated 16.1.1995 and purported to submit his joining. The respondents on 19.5.1995 then addressed a communication to the petitioner in the background of his letter dated 15.4.1995 making certain queries to enable them to thereafter consider the request of the petitioner. This was followed by the reply of the petitioner dated 6.7.95 wherein he stated firstly that his joining on 15.4.95 be accepted. If there be any objection by the respondents in accepting his joining then appropriate sanction for release of his pension etc. be directed forth with on the premise that he had completed more than 20 years of service. The aforesaid communication dated 19.5.1995 and 6.7.1995 would be available as annexures G and H to the counter affidavit filed on behalf of the respondents.
3. The respondents in accordance with their representation in their communication dated 19.5.95 informed the petitioner by communication dated 5.9.95 at Annexure 16, that after deliberation the Government had decided to reject the request of the petitioner for joining as purported to be made by him on 15.4.95, withdrawing his resignation.
4. Thereafter the respondents proceeded to place the petitioner under suspension on 16.7.96 leading to the initiation of a departmental proceeding against him for unauthorised absence from 16.1.95 and for conduct unbecoming of a government servant by contesting the elections as an independent candidate and thus abusing his status as a government servant. The petitioner superannuated on 31.1.98 while departmental proceedings remained pending. The proceedings were then converted into one under Rule 438 on 18.4.1998, leading to the final orders of punishment dated 14.12.1998 at Annexure 19. The petitioner was sought to be deprived of his entire pension and gratuity and salary for the period of suspension leading to the institution of the present writ application.
5. Learned Senior Counsel for the petitioner Sri Ray Shivaji Nath made submissions both with regard to the legality of the letter of resignation dated 16.1.95 and the communication of the respondents in that context dated 5.9.95 to submit that the same resulted in severance of status of master and servant in the background of the conditional offer made by the petitioner in his communication dated 7.6.95 in response to the show cause issued by the respondents dated 19.5.95 that an appropriate decision would be taken on the petitioner’s request dated 16.1.1995 after consideration of the reply of the petitioner to the same. It was submitted that the communication dated 7.6.1995 was itself in two parts; (a) requesting permission to rejoin, and (b) if the same be not possible, appropriate orders with regard to his pension etc. be passed in the background of his having completed 20 years of service. The submission thus was that if acceptance of the resignation of the petitioner did take effect by the communication dated 5.9.95 at Annexure 16, all subsequent actions by placing the petitioner under suspension, holding of departmental enquiry etc. were bad in law. The petitioner having completed approximately 27 years 8 months of service was clearly entitled to retiring pension under Rule 135 of the Bihar Pension Rules read with Rule 5 of the same, the Irrigation Department having been carved out from the erstwhile PWD Department. In any event there being no specific rules either in the Bihar Service Code, or the Bihar Pension Rules making acceptance of a resignation, a statutory compulsion, the letter dated 16.1.1995 resulted in automatic cessation of the statue as a government servant. Rule 10 (a) of the Bihar Pension Rules would quite simply talk of resignation while 101 (b) would contemplate an statutory order of acceptance in specified conditions not relevant for the present.
6. Alternatively even the departmental proceedings was conducted contrary to the law in as much as no proper notices were issued to the petitioner. The entire proceedings were conducted ex-parte behind the back of the petitioner, in complete violation of the principles of natural justice. The respondents sought to serve notice of the proceeding on the petitioner after his superannuation on an address other than that recorded in his service book. The alleged publication of notices with regard to the proceeding was done in a newspaper styled as ‘Indian Nation’ which had little or no circulation. He also sought to raise certain other issues with regard to the departmental proceeding being vitiated for reasons of non-payment of subsistence allowance and that notices under Rule 139 of the Bihar Pension Rules for withholding pension etc. came to be issued on 4.1.1999 only after the final decision to withhold the same had already been taken by the impugned order dated 14.12.98 at Annexure 19.
7. Learned Counsel for the State submitted that the communication of the respondents as contained in Annexure 16 dated 4.9.1995 was not an acceptance of the resignation of the petitioner. The respondents quite simply refused the request of the petitioner to rejoin. There was no severance of the status of the master and servant. Resignation would necessarily have to be a bilateral act. In absence of a communication of specific acceptance of resignation it was incorrect on the part of the petitioner to contend that there was such severance of relationship by virtue of the communication elated 5.9.95 leaving him free to contest the elections. The request of the petitioner dated 15.4.1995 seeking to withdraw his resignation makes it evident that there never was a cessation of relationship of master and servant.
8. This Court upon consideration of the submissions made on behalf of the parties finds that the first issue falling for consideration by this Court would be whether the petitioner could be said to have resigned from service in pursuance of his letter dated 16.1.95 at Annexure 14 read together with government communication dated 5.9.95 at Annexure 16 in the background of the letter of the respondents dated 15.4.95 and the reply of the petitioner dated 6.7.95. If the aforesaid document would constitute a valid resignation leading to severance of master servant relationship and was tantamount to acceptance of his resignation all consequential actions of the respondents in placing the petitioner under suspension, initiating departmental proceeding, ordering the withholding of his entire pension and gratuity would automatically be held to be bad. This Court would therefore proceed to take up this issue for consideration first.
9. The relevant laws applicable for the purpose of the present controversy would be the Bihar Service Code, and the Bihar Pension Rules. Rule 74 of the Bihar Service Code, would contemplate right of a government servant to retire voluntarily after completion of 30 years of service which would take effect after three months from the date of such tendering unless the same be accepted earlier. There would be government instructions therein permitting a government servant to retire voluntarily on completion of 20 years of qualified service for which additional weightage of 5 years would be given. However the Bihar Service Code, would not contain any provision dealing with the aspect of resignation by a government servant. The issue of resignation by a government servant and the effect of the same upon his pension would be a subject of consideration under the Bihar Pension Rules. Rule 3(ii) of the Bihar Pension Rules would read as follows :
“(2) Rule 7 Bihar Service Code, provides, interalia, that except as otherwise provided in those rules, a Government Servant’s claim to pension shall be regulated by rules in force at the time the Government servant resigns or is discharged from service of the Government.”
10. It would thus be seen that the Bihar Service Code, in Rule 7 itself provides that a government servant’s claim to pension would be regulated by rules in force at the time when he resigns from the government service which would mean the Bihar Pension Rules. Rule 101 of the Bihar Pension Rules in Chapter V at Section 5 would read in Clause (a) that resignation from the public service would entail forfeiture of past service. It would thus be seen that Rule 101 (a) does not contemplate any acceptance of such resignation which would entail forfeiture of past service. The resignation in such an event would remain an unilateral act. The relevant provisions applicable for the purpose of the present controversy would be Rule 135 read with Rule 5 of the Bihar Pension Rules which would read as under :
"5.(1) The provisions of Rules 86, 135, 146 and 147 apply only to Government servants (other than military officers) appointed substantively to services or posts specified in the schedule below, (a) joined their posts after 29th August, 1919, or (b) were in service on 29th August 1919, but have definitely elected in writing with the permission of Government to come under them. (2) The Provincial Government may include in the list given in the schedule any gazetted service or post, the duties of which are so important that they cannot be regarded as subordinate." "135. Government servants mentioned in Rule 5 are entitled, on their resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years." Rule 5 of the Bihar Pension Rules would include the PWD Department of which the Irrigation Department is said to be an offshoot, a fact not in dispute.
11. The petitioner would thus have to meet twin requirement for being a person falling within the terms of Rule 5 of the Bihar Pension Rules and of having completed qualifying service of not less than 25 years before he could claim retiring pension. This would however come subject to his resignation being accepted under Rule 135. Rule 135 contemplates a bilateral act of tendering of the resignation and acceptance of the same. In the absence of any acceptance of such resignation he would not be entitled to the benefit of retiring pension for having completed the qualified service of not less than 25 years. In this case, admittedly the petitioner has completed the qualified service of 25 years having been appointed on 29.8.67 and the letter of resignation having been tendered on 16.1.95.
12. The issue of a unilateral or bilateral resignation would not be a relevant factor in the facts and circumstances of the present case. Whether there be a resignation and acceptance thereof would essentially depend on the facts of each case. This Court finds, in the present case, that the petitioner by his letter dated 16.1.95 submitted his request for voluntary retirement and in the alternative stated that if that be not possible the same may be treated as his resignation in presenti. Before the respondents could respond to the same, the petitioner sought to withdraw his resignation by his communication dated 15.4.95. In response the respondents sought certain explanation from the petitioner on 19.5.95 stating that only thereafter the request of the petitioner to withdraw the resignation and for joining would be considered. The petitioner in response to the same reiterated his desire to join the service and alternatively submitted that if that be not possible in view of the tenor of his letter dated 16.1.95 and his completed period of qualified service necessary orders for release of his pension etc. be passed. The petitioner therefore clearly left the matter at the discretion of the respondents whether to accept his letter of resignation in presenti or to permit him to rejoin in view of his request dated 15.4.95. it would be apparent from the communication of the respondents dated 5.9.95 that they did not accede to the petitioner’s request for permission to withdraw his resignation and rejoin submitted by him. In the aforesaid factual background it is apparent that the communication dated 5.9.95 cannot but be anything other than an acceptance of the letter of resignation of the petitioner dated 16.1.95. Quite obviously the respondents acceded to the second request of the petitioner in his letter dated 6.7.95 with regard to the fact of his having completed the period of qualified service for pension etc. The petitioner did not question this decision of the respondents and accepted the same.
13. This Court finds it difficult to accept the submissions made on behalf of the respondents that they did not accept the letter of resignation of the petitioner but quite simply refused his joining and thus the relationship of master and servant did not stand severed and the consequential action of suspension, departmental proceeding etc. was in accordance with law. The action of the respondents would have to be adjudicated in the factual background of the case, where the petitioner tendered his resignation, but before any decision of acceptance could be communicated, he sought to withdraw the same. The respondents sought certain clarifications before they could take a decision on his request for resignation and withdrawal of the same. The petitioner made a plea that either he be permitted to rejoin, meaning thereby that his letter of withdrawal of the resignation be accepted or alternatively in view of his having completed period of qualified service he be allowed to go. This was followed by a communication simply refusing him permission to rejoin in view of his request for withdrawal of his letter of resignation. This, the Court finds was consonance with Rule 135 of the Bihar Pension Rules which required acceptance of the resignation for the purpose of qualifying service to entitle a government servant for retiring pension to be bilateral in nature. Once the communication dated 5.9.95 came to be issued the relationship of master and servant stood severed from 16.1.1995, being a resignation in presenti. If that be so the petitioner would clearly be entitled to the benefits of retiring pension in terms of Rule 135 of the Bihar Pension Rules.
14. The fact that resignation simplicitor under Rule 101(a) of the Bihar Pension Rules would not entail forfeiture of the pension of the petitioner, need not detain this Court in view of the judgment reported in 1998 (1) PLJR 707 (Tapan Kumar Chatterji v. State of Bihar and Ors.) followed in CWJC No. 1678 of 2003 (Dr. (Smt) Shahida Hasan v. State of Bihar and Ors.) disposed on 16.9.2003.
15. This Court therefore holds that the respondents by their communication at Annexure 16 dated 5.9.95 accepted the request of the petitioner with regard to his resignation in presenti dated 10.1.95 and his claim for retiring pension in terms of his having admittedly completed the period of qualified service of twentyfive years simultaneously while rejecting his request to withdraw the letter of resignation made on 15.4.95. Any delay on part of the respondents in communicating the acceptance cannot ensure to their benefit.
16. There would however be another aspect of the matter. While Rule 138 of the Bihar Pension Rules would grant retiring pension after qualifying service of twentyfive years, while Appendix VI Rule 18 of the Bihar Pension Rules would qualify such required period to be ten years. However, this would not detain the Court in the present proceeding in view of the facts where the petitioner need not rely upon the said provision.
17. In vies of this finding arrived at by the Court it is not necessary to consider the other submissions made on behalf of the petitioner. Quite obviously if there be severance of status of master and servant with effect from 16.1.95 the petitioner did not remain under the disciplinary and administrative control of the respondents to subject him to any departmental proceedings.
18. The withholding of entire pension and gratuity would be a serious matter. The Supreme Court in a judgment reported in (2005) 3 SCC (Ram Dayal Rai and Ors. v. State Electricity Board and Ors.) while considering the challenge to withholding of 5% of the total pension held at para 17, the relevant extract of which would read :
“17………. the balance of convenience and the prima facie case is also in favour of the appellant. If the pensioner’s benefit is cut at 5% out of the total amount of pension payable to the appellant, the appellant will suffer an irreparable loss and injury since, after retirement, the pensionary benefit is the only amount available to eke out a livelihood for the retired employees of the government.”
19. In the result, the impugned orders at Annexures 19, 20 and 29 are accordingly quashed. The petitioner would be entitled to all consequential benefits. Considering that the petitioner has superannuated on 30.1.1998 the respondents would be required to give effect to this order within a period of two months from the date of receipt or communication of the same. The petitioner shall be entitled to 10% Interest on the arrears.
20. Sri Sanjay Singh, Standing Counsel No. IX, rendered valuable assistance to the Court in the effort to adjudicate the controversy which the Court appreciates.