{"id":10113,"date":"2011-08-19T00:00:00","date_gmt":"2011-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-vs-luxmi-kant-shukla-on-19-august-2011"},"modified":"2015-09-01T10:56:08","modified_gmt":"2015-09-01T05:26:08","slug":"state-of-u-p-ors-vs-luxmi-kant-shukla-on-19-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-vs-luxmi-kant-shukla-on-19-august-2011","title":{"rendered":"State Of U.P.& Ors vs Luxmi Kant Shukla on 19 August, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P.& Ors vs Luxmi Kant Shukla on 19 August, 2011<\/div>\n
Author: A K Patnaik<\/div>\n
Bench: R.V. Raveendran<\/div>\n
                                                                            Reportable\n\n\n                IN THE SUPREME COURT OF INDIA\n\n\n\n                  CIVIL APPELLATE JURISDICTION\n\n\n                 CIVIL APPEAL No.7105 OF 2011 \n\n         (Arising out of S.L.P. (C) No. 33672 OF 2010)\n\n\n                                         \n\nState of U.P. & Ors.                                         ...... Appellants\n\n\n\n                                   Versus\n\n\n\nLuxmi Kant Shukla                                         ...... Respondent\n\n\n\n\n\n                                 J U D G M E N T\n<\/pre>\n
A. K. PATNAIK, J.\n<\/p>\n
      Leave granted.\n<\/p>\n
2.    This is  an appeal against the judgment  and order  dated <\/p>\n
16.09.2010 of the Division Bench of the Allahabad High Court, <\/p>\n
Lucknow   Bench,   in   Civil   Miscellaneous   Writ   Petition   No.   05 <\/p>\n
(S\/B)   of   2010   (hereinafter   referred   to   as   `the   impugned <\/p>\n
judgment’).\n<\/p>\n
3.    The   facts   very   briefly   are   that   the   respondent   is   a <\/p>\n
member   of   the   Provincial   Civil   Services   of   the   State   of   U.P.\n<\/p>\n
                                      2<\/span><\/p>\n
When   he   was   posted   as   Special   Secretary,   Samaj   Kalyan <\/p>\n
Department, Government of U.P. in 2006, he authored a book <\/p>\n
titled  `Jati  Raj’.   As the book contained some remarks against <\/p>\n
national   leaders   like   late   Dr.   B.R.   Ambedkar,   the   State <\/p>\n
Government   issued   a   letter   dated   11.09.2007   to   the <\/p>\n
respondent   when   he   was   posted   as   Special   Secretary, <\/p>\n
Dharmarth Karya Department, Government of U.P., requesting <\/p>\n
him   to   furnish   to   the   Government   a   copy   of   the   book.     The <\/p>\n
respondent instead of furnishing a copy of the book proceeded <\/p>\n
on leave and on 12.02.2008 he was placed under suspension <\/p>\n
in   contemplation   of   the   disciplinary   proceedings.                 On <\/p>\n
19.02.2008, a charge-sheet containing 16 charges was served <\/p>\n
on him.  The charges against the respondent were that certain <\/p>\n
passages in the book `Jati Raj’ written by him were defamatory <\/p>\n
and   derogatory   to   national   leaders   and   he   had   hurt   the <\/p>\n
religious sentiments of the people and created hatred amongst <\/p>\n
various   sections   of   the   society.     By   order   dated   19.02.2008, <\/p>\n
the   State   Government   appointed   Shri   Vijay   Shanker   Pandey, <\/p>\n
the   Commissioner,   Lucknow   Division,   as   the   Enquiry   Officer <\/p>\n
to enquire into the charges.\n<\/p>\n
                                        3<\/span><\/p>\n
4.    Aggrieved, the respondent filed Writ Petition No. 256 (SB) <\/p>\n
of 2008 before the Allahabad High Court, Lucknow Bench, and <\/p>\n
by   an   interim   order   dated   14.03.2008   the   High   Court   stayed <\/p>\n
the   operation   of  the   order  of  suspension   as  well  as  the   order <\/p>\n
appointing   the   Enquiry   Officer.     The   State   Government <\/p>\n
challenged   the   order   dated   14.03.2008   of   the   High   Court <\/p>\n
before this Court in Special Leave Petition (Civil) No. 12749 of <\/p>\n
2008   and   this   Court,   while   issuing   notice   in   Special   Leave <\/p>\n
Petition,   stayed   the   operation   of   the   order   dated   14.03.2008 <\/p>\n
passed   by   the   High   Court.     Thereafter,   this   Court   by   order <\/p>\n
dated 14.11.2008 disposed of the Special Leave Petition with a <\/p>\n
request   to   the   High   Court   to   dispose   of   the   Writ   Petition   No. <\/p>\n
256   (S\/B)   of   2008   expeditiously   and   with   the   direction   that <\/p>\n
pending   such   disposal   of   the   writ   petition,   the   State <\/p>\n
Government   was   not   to   take   any   final   decision   imposing   any <\/p>\n
penalty   on   the   respondent.     In   the   meanwhile,   as   the <\/p>\n
respondent   did   not   submit   his   reply   to   the   charge-sheet,   the <\/p>\n
Enquiry Officer conducted the enquiry ex parte and submitted <\/p>\n
an   enquiry   report   dated   15.07.2008   holding   the   respondent <\/p>\n
guilty of the charges.   The disciplinary authority issued notice <\/p>\n
                                      4<\/span><\/p>\n
dated   05.08.2008   to   the   respondent   to   show   cause   why   the <\/p>\n
enquiry   report   should   not   be   accepted.     On   01.05.2009, <\/p>\n
having   found   that   the   ex-parte   enquiry   was   violative   of <\/p>\n
principles of natural justice, the disciplinary authority passed <\/p>\n
an   order   directing   the   Enquiry   Officer,   Shri   Vijay   Shanker <\/p>\n
Pandey,   to   hold   the   enquiry   afresh   after   giving   sufficient <\/p>\n
opportunity   of   hearing   to   the   respondent   in   accordance   with <\/p>\n
the rules.   Writ Petition No. 256 (SB) of 2008 was disposed of <\/p>\n
by the High Court on 15.05.2009 directing the Enquiry Officer <\/p>\n
to commence the proceedings afresh from the stage of charge-\n<\/p>\n
sheet.  The respondent filed a Review Petition No. 115 of 2009, <\/p>\n
but   the   High   Court   dismissed   the   Review   Petition   on <\/p>\n
26.05.2009.\n<\/p>\n
5.       The respondent then filed his reply to the charge-sheet <\/p>\n
on   28.05.2009   to   the   Enquiry   Officer,   Shri   Vijay   Shanker <\/p>\n
Pandey   and   endorsed   a   copy   of   the   reply   to   the   Principal <\/p>\n
Secretary   (Appointment   Section-II),   Government   of   U.P.\n<\/p>\n
requesting him to exonerate him from the charges against him <\/p>\n
and   instead   grant   voluntary   retirement   from   service   under <\/p>\n
Rule   56   of   the   U.P.   Fundamental   Rules,   1942   (for   short   `FR <\/p>\n
                                      5<\/span><\/p>\n
56′).     As   Shri   Vijay   Shanker   Pandey   declined   to   conduct   the <\/p>\n
enquiry   afresh,   the   State   Government   by   its   order   dated <\/p>\n
01.06.2009   appointed   Shri   Alok   Ranjan,   Principal   Secretary, <\/p>\n
Urban Development, as the Enquiry Officer to enquire into the <\/p>\n
charges   against   the   respondent.     The   respondent   submitted <\/p>\n
his reply to the charge sheet to the new Enquiry Officer, Shri <\/p>\n
Alok Ranjan on 11.06.2009 and after considering the reply of <\/p>\n
the   respondent   and   the   material   available   on   record,   the <\/p>\n
Enquiry Officer submitted his enquiry report on 30.11.2009 to <\/p>\n
the   State   Government   holding   that   the   charges   against   the <\/p>\n
respondent   were   proved.     While   the   enquiry   report   was <\/p>\n
pending consideration before the State Government, the State <\/p>\n
Government  first considered the  request  of the  respondent in <\/p>\n
his   representation   dated   05.10.2009   for   voluntary   retirement <\/p>\n
and by order dated 16.12.2009 intimated the respondent that <\/p>\n
his request for voluntary retirement has not been accepted by <\/p>\n
the State Government.\n<\/p>\n
6.       Aggrieved, the respondent filed Civil Miscellaneous Writ <\/p>\n
Petition   No.   5   (SB)   of   2010   in   the   Allahabad   High   Court, <\/p>\n
Lucknow   Bench   for   quashing   the   order   dated   16.12.2009   of <\/p>\n
                                     6<\/span><\/p>\n
the State Government and for directing the State Government <\/p>\n
to   pay   all   his   retirement   benefits   admissible   under   FR   56.\n<\/p>\n
During   the   pendency   of   the   Civil   Miscellaneous   Writ   Petition <\/p>\n
No.   5   (SB)   of   2010,   the   State   Government   issued   a   notice <\/p>\n
dated   05.02.2010   to   the   respondent   to   show   cause   why   the <\/p>\n
enquiry report dated 30.11.2009 should not be accepted.  The <\/p>\n
respondent submitted his reply dated 02.03.2010 to the show <\/p>\n
cause   notice   and   also   made   a   request   for   being   given   an <\/p>\n
opportunity   of   personal   hearing.     Personal   hearing   was <\/p>\n
granted to the respondent on 04.06.2010 and the respondent <\/p>\n
was   dismissed   from   service   by   the   disciplinary   authority   by <\/p>\n
order dated 07.09.2010.   Aggrieved, the respondent filed Civil <\/p>\n
Miscellaneous   Writ   Petition   No.   1386   (SB)   of   2010   on <\/p>\n
14.09.2010 before the Allahabad High Court, Lucknow Bench, <\/p>\n
against the order of dismissal and this Writ Petition is pending <\/p>\n
consideration before the High Court.\n<\/p>\n
7.    On 16.09.2010, the Division Bench of the High Court, by <\/p>\n
the impugned judgment, quashed the order dated 16.12.2009 <\/p>\n
of   the   State   Government   and   rejected   his   request   to   accept <\/p>\n
voluntary   retirement   under   FR   56   and   directed   the   State <\/p>\n
                                      7<\/span><\/p>\n
Government   to   reconsider   the   respondent’s   request   afresh <\/p>\n
keeping   in   view   the   observations   made   in   the   impugned <\/p>\n
judgment.     By   the   impugned   judgment,   however,   the   High <\/p>\n
Court did not in any way interfere with the subsequent order <\/p>\n
dated 07.09.2010  of the  disciplinary  authority dismissing  the <\/p>\n
respondent from service as the order of dismissal was subject <\/p>\n
matter   of   challenge   in   a   separate   writ   petition,   Civil <\/p>\n
Miscellaneous Writ Petition No. 1386 (SB) of 2010, before the <\/p>\n
Allahabad High Court, Lucknow Bench.\n<\/p>\n
8.    Mr.   P.P.   Rao,   learned   counsel   appearing   for   the <\/p>\n
appellants,   submitted   that   under   Clause   (c)   of   FR   56,   a <\/p>\n
government servant may by notice to the appointing authority <\/p>\n
voluntarily   retire   at   any   time   after   attaining   the   age   of   45 <\/p>\n
years.   He submitted that the respondent had not served any <\/p>\n
such notice to the State Government and had only sent to the <\/p>\n
State Government a copy of his reply dated 28.05.2009 to the <\/p>\n
Enquiry   Officer,   Shri   Vijay   Shanker   Pandey,   and   made   an <\/p>\n
endorsement at the foot of the reply to the Principal Secretary <\/p>\n
(Appointment   Section-II),  Government   of  U.P.   that  he   may   be <\/p>\n
retired   from   service   under   FR   56   and   he   may   be   granted   all <\/p>\n
                                        8<\/span><\/p>\n
service and consequential benefits.   He vehemently submitted <\/p>\n
that such endorsement on a copy of the reply with a request to <\/p>\n
the   appointing   authority   to   grant   him   voluntary   retirement <\/p>\n
from service was not a notice of voluntary retirement in terms <\/p>\n
of   FR   56.     He   next   submitted   that   the   proviso   to   Clauses   (c) <\/p>\n
and (d) of FR 56 clearly provides  that the notice given by the <\/p>\n
Government servant against whom a disciplinary proceeding is <\/p>\n
pending   shall   be   effective   only   if   it   is   accepted   by   the <\/p>\n
appointing   authority   and   that   the   proviso   does   not   require <\/p>\n
that   where   a   disciplinary   proceeding   is   pending   against   a <\/p>\n
Government servant, he should be informed of the decision on <\/p>\n
his request for voluntary retirement before expiry of the notice <\/p>\n
period.     He   argued   that   a   close   reading   of   the   proviso   would <\/p>\n
show   that   only   where   a   disciplinary   proceeding   is <\/p>\n
contemplated against a Government servant, the Government <\/p>\n
servant   has   to   be   informed   before   the   expiry   of   the   notice <\/p>\n
period   about   the   decision   that   his   request   for   voluntary <\/p>\n
retirement has not been accepted.  He submitted that the High <\/p>\n
Court   has,   on   the   contrary,   held   in   the   impugned   judgment <\/p>\n
that   the   respondent   was   required   to   be   informed   before   the <\/p>\n
                                      9<\/span><\/p>\n
expiry   of   the   period   of   notice   about   the   decision   that   his <\/p>\n
request for voluntary retirement has not been accepted.\n<\/p>\n
9.    Mr.   Rao   next   submitted   that   in   any   case   the   State <\/p>\n
Government   as   the   appointing   authority   has   considered   the <\/p>\n
request   of   the   respondent   for   voluntary   retirement   and <\/p>\n
rejected   the   same   as   would   be   evident   from   the   relevant   file <\/p>\n
and   in   particular   the   note   dated   26.11.2009   put   up   by   the <\/p>\n
Under   Secretary,   Appointment   Department   and   dealt   with   by <\/p>\n
the Special Secretary of the Government on 27.11.2009 and by <\/p>\n
the   Principal   Secretary   of   the   Department   and   the   Chief <\/p>\n
Secretary,   Government   of   U.P.,   on   02.12.2009   and   orally <\/p>\n
approved by the Chief Minister on 08.12.2009 as recorded by <\/p>\n
the   Special   Secretary   on   08.12.2009.     He   submitted   that   the <\/p>\n
High   Court   has,   however,   taken   a   view   in   the   impugned <\/p>\n
judgment that as the Chief Minister has not put her signature <\/p>\n
in   the   order   dated   08.12.2009   rejecting   the   request   of   the <\/p>\n
respondent   for   voluntary   retirement,   the   order   was   not   dully <\/p>\n
authenticated in terms of the Rules of Business.  He cited the <\/p>\n
decision of the Punjab and Haryana High Court in  Bishan Lal  <\/p>\n
v. State  of Haryana  (AIR 1977 P&H 7) that an order cannot be <\/p>\n
                                        1<\/span><\/p>\n
called   in   question   merely  because   the   Chief   Minister   has   not <\/p>\n
put his signature on the official file.  He finally submitted that <\/p>\n
since   the   State   Government   has  not  accepted  the   request   for <\/p>\n
voluntary retirement made by the respondent, the respondent <\/p>\n
continued in service  till  he  was dismissed  by the order dated <\/p>\n
07.09.2010.\n<\/p>\n
10.    The   respondent,   who   appeared   in-person,   on   the   other <\/p>\n
hand,   submitted   that   in   the   copy   of   his   reply   dated <\/p>\n
28.05.2009   to   the   Enquiry   Officer,   which   was   sent   to   the <\/p>\n
Principal   Secretary,   Appointment   Section-II,   Government   of <\/p>\n
U.P.,   he   had   served  a   notice   to   the   appointing   authority   that <\/p>\n
he   may   be   retired   under   Clause   (c)   of   FR   56,   and   all   service <\/p>\n
and   consequential   benefits   may   be   granted   to   him   under <\/p>\n
Clause   (e)   of   FR   56.     He   submitted   that   this   was   therefore   a <\/p>\n
notice in terms of Clause (c) of FR 56.   He submitted that the <\/p>\n
High   Court   has   rightly   held   in   the   impugned   judgment   that <\/p>\n
once the State Government as the appointing authority took a <\/p>\n
decision   and   treated   the   reminder   of   the   respondent   as   a <\/p>\n
request   for   accepting   his   voluntary   retirement,   the   State <\/p>\n
Government cannot now be permitted to take a stand that the <\/p>\n
                                      1<\/span><\/p>\n
request   made   by   the   respondent   in   the   endorsement   dated <\/p>\n
28.05.2009   was   not   a   notice   of   voluntary   retirement.     He <\/p>\n
further   submitted   that   Clause   (d)   of   FR   56   clearly   provides <\/p>\n
that   the   period   of   notice   would   be   three  months.     He   argued <\/p>\n
that   on   the   expiry   of   the   three   months   period   from <\/p>\n
28.05.2009,   the   respondent   stood   compulsory   retired   from <\/p>\n
service.  He submitted that the State Government should have <\/p>\n
informed   him   about   its   decision   not   to   accept   his   voluntary <\/p>\n
retirement   before   the   expiry   of   the   period   of   three   months <\/p>\n
notice   served   by   the   respondent.   But   the   State   Government <\/p>\n
did not communicate the decision to the respondent within the <\/p>\n
notice   period   of   three   months   and   therefore   the   respondent <\/p>\n
stood   compulsory   retired   from   service   on   expiry   of   the   notice <\/p>\n
period and he was entitled to the pension and other retirement <\/p>\n
benefits in accordance with Clause (e) of FR 56.  In support of <\/p>\n
his submissions, he cited the decision of this Court in Union of  <\/p>\n
India   and   Others   v.   Sayed   Muzaffar   Mir<\/a>  [1995   Supp   (1)   SCC <\/p>\n
76].\n<\/p>\n
11.      The respondent next submitted that admittedly the Chief <\/p>\n
Minister   has   not   put   her   signature   on   the   proposal   not   to <\/p>\n
                                      1<\/span><\/p>\n
accept his notice of voluntary retirement and therefore there is <\/p>\n
no decision of the State Government not to accept his notice of <\/p>\n
voluntary   retirement.     He   vehemently   argued   that   Article <\/p>\n
166(3) of the Constitution of India provides that the Governor <\/p>\n
shall   make   rules   for   the   more   convenient   transaction   of   the <\/p>\n
business of the Government of the State and for the allocation <\/p>\n
among   Ministers   of   such   business,   and   it   does   not <\/p>\n
contemplate delegation of the powers of the Ministers in favour <\/p>\n
of any officer of the State.   He cited the decision of this Court <\/p>\n
in Samsher Singh v. State of Punjab and Another [(1974) 2 SCC <\/p>\n
831]   in   support   of   this   proposition.     He   also   relied   on <\/p>\n
Municipal   Corporation,   Ludhiana   v.   Inderjit   Singh  and   Another<\/a> <\/p>\n
[(2008) 13 SCC 506] in which it has been held that a statutory <\/p>\n
authority   cannot   pass   a   statutory   order   on   an   oral   prayer <\/p>\n
made by  the owner of a property regarding compounding fee.\n<\/p>\n
He   submitted   that   the   contention   of   the   appellants   that   the <\/p>\n
Chief   Minister   had  orally   approved  the   rejection   of   the   notice <\/p>\n
of   the   voluntary   retirement   of   the   respondent   should   not <\/p>\n
therefore be accepted by the Court.\n<\/p>\n
                                        1<\/span><\/p>\n
12.    In   our   considered   opinion,   the   answer   to   the   question <\/p>\n
whether   the   respondent   stood   voluntary   retired   from   service <\/p>\n
before   the   order   of   dismissal   was   passed   by   the   State <\/p>\n
Government   will   depend   mainly   on   the   precise   language   of <\/p>\n
Clauses   (c)   and   (d)   of   FR   56   and   the   provisos   thereto,   which <\/p>\n
are quoted hereinbelow:\n<\/p>\n
             “(c)   Notwithstanding   anything   contained   in <\/p>\n
             Clause   (a)   or   Clause   (b),   the   appointing <\/p>\n
             authority  may,  at any  time,   by  notice  to  any <\/p>\n
             Government   servant   (whether   permanent   or <\/p>\n
             temporary),   without   assigning   any   reason, <\/p>\n
             require  him  to  retire  after  he  attains  the   age <\/p>\n
             of   fifty   years   or   such   Government   servant <\/p>\n
             may   by   notice   to   the   appointing   authority <\/p>\n
             voluntarily   retire   at   any   time   after   attaining <\/p>\n
             the age of forty-five years.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
             (d)     The   period   of   such   notice   shall   be   three <\/p>\n
                 months:\n<\/p><\/blockquote>\n
\n
                 Provided that-\n<\/p><\/blockquote>\n
             (i) any   such   Government   servant   may   by <\/p>\n
                 order   of   the   appointing   authority,   without <\/p>\n
                 such   notice   or   by   a   shorter   notice,   be <\/p>\n
                 retired forthwith at any time after attaining <\/p>\n
                 the   age   of   fifty   years,   and   on   such <\/p>\n
                 retirement   the   Government   servant   shall <\/p>\n
                 be   entitled   to   claim   a   sum   equivalent   to <\/p>\n
                 the   amount   of   his   pay   plus   allowances,   if <\/p>\n
                 any, for the period of the notice, or as the <\/p>\n
                 case may be, for the period by which such <\/p>\n
                 notice   falls   short   of   three   months,   at   the <\/p>\n
                                           1<\/span><\/p>\n
                     same   rates   at   which   he   was   drawing <\/p>\n
                     immediately before his retirement;<\/p>\n<\/blockquote>\n
             (ii)    it shall be open to the appointing authority <\/p>\n
                     to   allow   a   Government   servant   to   retire <\/p>\n
                     without   any   notice   or   by   a   shorter   notice <\/p>\n
                     without   requiring   the   Government   servant <\/p>\n
                     to pay any penalty in lieu of notice:<\/p>\n
                     Provided further that such notice given by <\/p>\n
                     the   Government   servant   against   whom   a <\/p>\n
                     disciplinary   proceeding   is   pending   or <\/p>\n
                     contemplated, shall be effective only if it is <\/p>\n
                     accepted   by   the   appointing   authority, <\/p>\n
                     provided that in the case of a contemplated <\/p>\n
                     disciplinary   proceeding   the   Government <\/p>\n
                     servant shall be informed before the expiry <\/p>\n
                     of his notice that it has not been accepted:<\/p>\n
                     Provided also that the notice once given by <\/p>\n
                     a   Government   servant   under   Clause   (c) <\/p>\n
                     seeking   voluntary   retirement   shall   not   be <\/p>\n
                     withdrawn   by   him   except   with   the <\/p>\n
                     permission of the appointing authority”.<\/p>\n<\/blockquote>\n
                                                   (emphasis supplied) <\/p>\n<\/blockquote>\n
13.        A   reading   of   clause   (c)   of   FR   56   quoted   above   would <\/p>\n
show   that   when   a   government   servant   attains   the   age   of   45 <\/p>\n
years,   the   appointing   authority   as   well   as   the   government <\/p>\n
servant   have   the   option   to   initiate   voluntary   retirement   and <\/p>\n
when the government servant chooses to initiate his voluntary <\/p>\n
retirement,   he   has   to   serve   a   notice   to   the   appointing <\/p>\n
authority.  Clause (d) of FR 56 further provides that the period <\/p>\n
                                         1<\/span><\/p>\n
of such notice shall be three months.  There are, however, two <\/p>\n
provisos   to   Clause   (d):   proviso   (i)   and   proviso   (ii).     These   are <\/p>\n
not   relevant   for   deciding   this   case.     What   is   relevant   is   the <\/p>\n
proviso after proviso (i) and (ii) to Clause (d), which states that <\/p>\n
notice   given   by   the   government   servant   against   whom   a <\/p>\n
disciplinary   proceeding   is   pending   or   contemplated,   shall   be <\/p>\n
“effective only if it is accepted by the appointing authority.”  In <\/p>\n
this   proviso,   however,   it   is   clarified   that   in   the   case   of   a <\/p>\n
“contemplated   disciplinary   proceeding”   the   government <\/p>\n
servant shall be informed before the expiry of his notice period <\/p>\n
that it has not been accepted.\n<\/p>\n
14.          In   the   facts   of   the   present   case,   the   disciplinary <\/p>\n
proceeding   was   initiated   against   the   respondent   on <\/p>\n
19.02.2008, when the charge sheet containing 16 charges was <\/p>\n
issued   against   the   respondent   and   when   Shri   Vijay   Shanker <\/p>\n
Pandey,   the   Commissioner,   Lucknow   Division   was   appointed <\/p>\n
as  the Enquiry Officer to enquire  into the  charges.   It is only <\/p>\n
after   the   initiation   of   a   disciplinary   proceeding   that   the <\/p>\n
respondent   made   a   request   in   the   copy   of   his   reply   dated <\/p>\n
28.05.2009   to   the   appointing   authority   to   accept   his <\/p>\n
                                        1<\/span><\/p>\n
retirement  under   Clause  (c)  of  FR  56.     Thus,  even if  we  treat <\/p>\n
the   request   of   the   respondent   made   on   28.05.2009   as   the <\/p>\n
notice   of   voluntary   retirement,   we   find   that   on   28.05.2009   a <\/p>\n
disciplinary   proceeding   was   pending   against   the   respondent <\/p>\n
and   as   per   the   language   of   the   proviso,   such   notice   of <\/p>\n
voluntary   retirement   would   be   “effective   only   if   it   is   accepted <\/p>\n
by   the   appointing   authority”.     Therefore,   until   the   appointing <\/p>\n
authority accepted the request of the respondent for voluntary <\/p>\n
retirement,   the   very   notice   dated   28.05.2009   for   voluntary <\/p>\n
retirement would not be effective.\n<\/p>\n
15.            The   High   Court,   however,   has   taken   the   view   in   the <\/p>\n
impugned   judgment   that   it   was   incumbent   upon   the <\/p>\n
appointing   authority   to   inform   the   respondent   before   the <\/p>\n
expiry of the notice period of three months that his request for <\/p>\n
voluntary   retirement   has   not   been   accepted   and   the   High <\/p>\n
Court has therefore directed that a fresh decision be taken by <\/p>\n
the   State   Government   on   the   request   of   the   respondent   for <\/p>\n
voluntary retirement after it found that the Chief Minister had <\/p>\n
not put her signature in the order rejecting the request of the <\/p>\n
respondent   for   voluntary   retirement.     This   view   taken   by   the <\/p>\n
                                        1<\/span><\/p>\n
High Court, in our considered opinion, is contrary to the plain <\/p>\n
language   of   the   proviso   which   states   that   in   the   case   of   “a <\/p>\n
contemplated disciplinary proceeding” the government servant <\/p>\n
shall be informed before the expiry of his notice that it has not <\/p>\n
been accepted.  As we have already found, this is not a case of <\/p>\n
“a   contemplated   disciplinary   proceeding”,   but   a   case   of <\/p>\n
disciplinary   proceeding   which   was   already   pending   when   the <\/p>\n
respondent   made   the   request   for   voluntary   retirement   on <\/p>\n
28.05.2009   and   the   finding   of   the   High   Court   that   the <\/p>\n
respondent   was   required   to   be   informed   before   the   expiry   of <\/p>\n
his   notice   of   voluntary   retirement   that   it   had   not   been <\/p>\n
accepted   is   erroneous.     In   view   of   our   finding   that   in   a   case <\/p>\n
where   a   disciplinary   proceeding   was   pending,   the   relevant <\/p>\n
proviso to FR 56(c) and (d) does not require the decision of the <\/p>\n
appointing   authority   to   be   communicated   to   the   Government <\/p>\n
servant   before   the   expiry   of   the   period   of   notice   of   voluntary <\/p>\n
retirement,   it   is   not   necessary   for   us   to   examine   further <\/p>\n
whether   the   order   dated   16.12.2009   rejecting   the   request   of <\/p>\n
the respondent for voluntary retirement without the signature <\/p>\n
of the Chief Minister was valid or not.\n<\/p>\n
                                          1<\/span><\/p>\n
16.           The   decision   of   this   Court   in  Union   of   India   v.   Sayed  <\/p>\n
Muzaffar Mir<\/a> (supra) cited by the respondent does not apply to <\/p>\n
the facts of the present case.  In that case, Rule 1802 (b) of the <\/p>\n
Indian Railway Establishment Code  provided that the railway <\/p>\n
servant   could   retire   voluntarily   from   service   by   serving   three <\/p>\n
months   notice   and   a   railway   servant   by   his   letter   dated <\/p>\n
22.07.1985   gave   a   three   months   notice   to   the   Railways   to <\/p>\n
retire from service.   After the three months period expired on <\/p>\n
21.10.1985,   the   order   of   removal   of   the   railway   servant   was <\/p>\n
passed   on   04.11.1985.                 On   these   facts   the   Central <\/p>\n
Administrative Tribunal, New Mumbai Bench, held  that since <\/p>\n
the   period   of   notice   of   voluntary   retirement   had   expired   on <\/p>\n
21.10.1985, the order of removal was nonest in the eye of law <\/p>\n
and   this   Court   did   not   find   any   infirmity   in   the   order   of   the <\/p>\n
Tribunal.  In the present case, the relevant proviso to Clauses <\/p>\n
(c) and (d) of FR 56 was explicit that in case of a disciplinary <\/p>\n
proceeding   which   is   pending,   the   notice   of   voluntary <\/p>\n
retirement cannot be “effective” until the appointing authority <\/p>\n
accepted the notice for voluntary retirement.  We have already <\/p>\n
found   that   when   the   request   for   voluntary   retirement   was <\/p>\n
                                       1<\/span><\/p>\n
made   by   the   respondent   on   28.05.2009,   the   disciplinary <\/p>\n
proceeding was pending against him.   Therefore, the notice of <\/p>\n
voluntary retirement was not effective until a positive order of <\/p>\n
acceptance of the notice of voluntary retirement was passed by <\/p>\n
the State Government.\n<\/p>\n
17.       As has been held by this Court in  State  of  Haryana  v.\n<\/p>\n
S.K.Singhal  [(1999)   4   SCC   293]   cited   by   Mr.   Rao,   that   if   the <\/p>\n
right   to   voluntary   retirement  is   conferred   on  the   employee   in <\/p>\n
absolute terms by the relevant rules and there is no provision <\/p>\n
in   the   rules   to   withhold   permission   in   certain   contingencies, <\/p>\n
then   voluntary   retirement   will   come   into   effect   automatically <\/p>\n
on the expiry of the period specified in the notice, but if such <\/p>\n
right   to   voluntary   retirement   of   an   employee,   who   is   under <\/p>\n
suspension   or   who   is   facing   disciplinary   proceedings,   is   not <\/p>\n
conferred   in   absolute   terms   but   is   contingent   upon   the <\/p>\n
permission   by   the   appointing   authority,     the   notice   of <\/p>\n
voluntary retirement does not take effect until a positive order <\/p>\n
is   passed  by  the   appointing   authority.    In  this  case,   we  have <\/p>\n
found that under the relevant proviso to Clauses (c) and (d) of <\/p>\n
FR   56,   the   right   of   a   Government   servant   against   whom   a <\/p>\n
                                              2<\/span><\/p>\n
disciplinary   proceeding   is   pending   to   voluntary   retire   from <\/p>\n
service   is   contingent   upon   the   order   of   acceptance   being <\/p>\n
passed   by   the   appointing   authority.     Since,   no  such   order   of <\/p>\n
acceptance   was   passed   by   the   appointing   authority   in   the <\/p>\n
present   case,   the   respondent   continued   in   service   even   after <\/p>\n
the   period   of   notice   of   three   months   expired   in   August   2009 <\/p>\n
and   his   services   were   terminated   only   with   the   order   of <\/p>\n
dismissal passed on 07.09.2009.\n<\/p>\n
18.         In  the  result,  the   appeal   is   allowed   and   the   impugned <\/p>\n
judgment   is   set   aside   and   the   writ   petition   (C.M.W.P.   No.05 <\/p>\n
(S\/B)   of   2010)   challenging   the   rejection   of   respondent’s <\/p>\n
request for voluntary retirement is dismissed.   There shall be <\/p>\n
no order as to costs.\n<\/p>\n
                                                                      ……………………..J.\n<\/p>\n
                                                                                              (R.   V.\n<\/p>\n
Raveendran)<\/p>\n
                                                                      ……………………..J.\n<\/p>\n
                                                                                              (A.   K.\n<\/p>\n
Patnaik)<\/p>\n
New Delhi,<\/p>\n
August 19, 2011.\n<\/p>\n
2<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P.& Ors vs Luxmi Kant Shukla on 19 August, 2011 Author: A K Patnaik Bench: R.V. Raveendran Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.7105 OF 2011 (Arising out of S.L.P. (C) No. 33672 OF 2010) State of U.P. & Ors. …… Appellants Versus […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-10113","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P.& Ors vs Luxmi Kant Shukla on 19 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-vs-luxmi-kant-shukla-on-19-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P.& Ors vs Luxmi Kant Shukla on 19 August, 2011 - 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