PETITIONER: UNION OF INDIA Vs. RESPONDENT: SAYED MUZAFFAR MIR DATE OF JUDGMENT20/09/1994 BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) KULDIP SINGH (J) CITATION: 1995 AIR 176 1995 SCC Supl. (1) 76 JT 1994 (6) 288 1994 SCALE (4)258 ACT: HEADNOTE: JUDGMENT:
The 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.
The 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.
2. The 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.
3. The 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.
This 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
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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.
Relying 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.
4.There 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.
5.The 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.
6.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 hold that the Tribunal had rightly
come to the conclusion that the order of removal was non est
in the eye of law.
7.For the reasons aforesaid, the appeal is dismissed. We,
however, make no order as to costs.
1 (1977) 4 SCC 441 : 1978 SCC (L&S) 7
2 (1978) 2 SCC 202: 1978 SCC (L&S) 208
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