B. J. SHELAT versus STATE OF GUJARAT & ANR.

B. J. SHELAT

STATE OF GUJARAT & ANR. March 28, 1978

[R. S. SARKARIA, N. L. UNTWALIA AND P. S. KA!LASAM, JJ.]

Bombay Civil Service Rules-r. 161(2) (ii) proviso--Scope of-Government liad power to withhold permission for voluntary retirement if departmentat proceedings are under contemplation-Government servant gave due notice of intention to retire-Order of suspension not comniunicated to Government ser-vant before retirement-Communication if incumbent-Government if com-petent to take disciplinary action after retirenient.

proviso--Scope of-Government retirement if departmentat

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 Government servant who is under suspension, or against "°·horn 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 &J)pellant who was Judicial Officer the accused in those cases filed affidavits aUeging corruption on the part of the appellant. In the mean-time on July 17, 1973 the appellant gave 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 'vhich were under contemplation, the High Court sbspended him from service.

The appellant's v..Tit petition challenging the Governments nction in taking disciplinary action against him after retirement was dismissed by the High Court. The Special Leave Petition filed by him in this Coun was allowed to be with~ drawn reserving to him the right to agitate the question whether disciplinary action could be taken against him after retiremiynt. Eventually, hovvever, he was dismissed.

On the question whether it was incumbent on the Government to communi-cate to the Government servant its decision to \1.'ithhold permission to retire on one of the grounds specified in the proviso :

IIELD : 1. For the proviso to become operative it is necessary that the Government should not only take decision but communicate it to the Govern-ment servant. It is not necessary that the communication should reach the Governn1ent Set>:ant. [558 E]

2. But for the proviso the right of the Government servant to retire V.'Ould have been absolute. The proviso has restricted the right conferred on the Goven1ment sen·ant under it. It is open to the Appointing A.uthority to with-hold permission to retire when the Government servant is under suspension or departnten:al proceedings are pending or are cont~1nplated against him. [557 C-EJ

3. The proviso contempl~tes positive action by the Appointing Authority. The \Vords "it shall be Open to the Appointing Authority to withhold pern1ission" ii:t r. 161 proyis_o indicate that the Appointing Authority has got an option- to wtthhold pern11ss1on and that could be exercised by communic:ating its intention to withhold permission to the Government servant. The Appointing Authority may have con~idc:ed the question and may not have taken decision either way or after considering the facts of the case may have come to the conc1usion that it is better to aUow the Government servant to retire than take any action against him. [558 C-E]

Dinesh Char;dra Sangma v. State of Assam ""d ()rr [1978]1 S.C.R. 607, distinguished. · .,

L.ewi' & Allenby (1909) Ltd. v. Pegge; [1914] l Ch. D. 782; held in-apphcabJe.

State of Punjab v. Khemi Ram; [1970] 2 S.C.R. 657; Suue 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. Ad-mittedly 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]

CIVIL APPEI.LATE JURISDICTION : Civil Appeal No. 923/77.

(Appeai by Special Leave from the Judgment and Order dated 13-8-1976 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 l3ih August, 1976 dismissing 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 Magistrate on 5th January, 1950 in the pre-reorganiz-ed State of Bombay. On the bifurcation of the State of Bombay on 1st May, 1960 he was allotted to the State of Gujarat a; Chi! Judge and Judicial Magistrate, First Class. On 4th November, 1961 the appellant was appointed by the Governor of Gujarat as Magis-trate for the city of Ahmedabad. On 9th November, 1970 the appellant gave 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 Servcies Rules permitted him to do so. The Registrar of the High Court replied to this notice on I Ith January, 1972 informing the appellant that he may send fresh application on the lines of his application dated 9th November, 1970.

The appellant had delivered several judgments under the Preven-tion of Food Adulteration Act during the period 24th January, 1972 to i 7th August, 1972. These judgments were taken on appeal to the High Court and in the High Court during the per;od 19th June, 1973 to 10th August, 1973 the accused in the variolls cases relating to food adulteration filed affidavits alleging that they had paid some moneys to 'the appellant. When these appeals were pending berore the High Court on 17th July, 1973 the appellant gave second notice under Rule 161 intimating his intel}tion to retire on reaching the age

.of 55 years i.e. on 3rd December, 1973. But before 3_rd D_eccmb~r, 1973, the date on which the appellant was due to. retrre, tne Chief City Magistrate, Ahmedabad, informed the peUtmner on 23rd November 1973 under the directions of the Chief Justice and Judges of the HigJ1 Court of Gujarat calling upon him to submit his explana-tion as regards allegation made in the affidavits. The appellant sub-mitted his explanation on 26th November, 1973.. On 11th J:?ecember, 1973 the High Court issued an order of suspens10n as the High Co.urt was of the view that it was desirable to suspend the appellant pendmg .i]nalisation of departmental proceedings against him which were under contemplation.The appellant filed writ petition challenging the jurisdiction. of the Government to take disciplinary action against him after retire-ment. This petition was dismissed and Letters Patent Appeal filed by the appellant was also dismissed on 24th December, 1973. The .appellallt filed special leave petition in this Court against the order Df dismissal of his writ petition by the High Court and this Court on 25th April, 1975 allowed the appellant to withdraw hi~ petition reserv-ing his right to agitate the questio_n as to whether disciplinary action can ':Jc taken against him after retirement when final orders were vassed in the disciplinary inquiry against him. In the meantime chargesheet was issued to the appellant by the High Court on l'Sth 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 lnquiry Offlcer and directed the appellant to show cause why different view from that of the lnquily Ofiicer 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, 197 6. 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 reasonable inference of guilt could be drawn and therefore it could not interfere with the order of dismissal. Hence, the present appeal.

Mr. V. !"l. Tarkunde, the learned counsel for the appellant, raised ~wo content10ns before: us, He submitted. that after the passing of the unpugned order of dismissal by the Governinent 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,_ !Juestion which was speci~cally reserved for the appel-lant by this Court. Secondly, he submitted that on the merits there is no evidence on which court can come to the conclusio11 that the ·<:harges that were framed against tlie appellant had been rstablished. We will proceed to consider the question of the jurisdiction of the au!hority to take disciplinary action against the appellant after his ·retirement. . It m_ay be recalled that the appellant gave notice inti-_!llatmg !us mte.nhon to retire on 17th July, 1973 statin,g that he mtended to retire on reachmg the age of 55 years on 3rd December }9_73. 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

High Court only on 11th December, 1973. But befor<> 3rd December, 1973 it is admitted that show-cause notice was issued on 23rd November, 1973 by the Chief City Magistrate on\ the directions of tl1e 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 retiremer.t of Government servants before attaining the age c:t snperannuation. Rule 161 (!) (aa) provides-

"Notwithstanding anything contained in clause (a)

(l) 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 ser>ant 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 o[ 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 writ-ing 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 Rnle applicable is Rule 161(2) (ii) and the appellant is entitled to retire by giving notice of not les's ban 3 months after he has attained the age of 55 years. Under Rnle 161 (1) (aa) (1) the appointing authority has an absolute right to retire any Governm(•nt 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 Govern-ment servant has no such absolute right. right is con~erred on the Government 'ervant under Rule 161 (2) (ii) to retire by giving not less than three months notice on his attaining the prescribed. age. Such 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 autho-rity to withhold permission to retire to Government ser-vant 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 Gov_ernment servant wonld be at liberty tO" retire by givmg not less than three months notice in writing to the appointing authority on attaining the prescribed 1ge. 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] 1 C.R. 607.

-0n 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 oE ilfty years or has completed 25 years of service, which-ever is earlier."

·On construction of the Rule this Court held that the ~ondition of service which i' envisaged in Rule 56(c) giving an option in absolute terms to 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 contract of employment as envisaged in Explanation 2 to Rq]e 119 of the Defence of India Rules and that Rule 56 is statutory condition which oper.1ted in law with-out reference to contract of employment and when once the condi-tions of Fundamental Rule 56(c) are fulfilled the Government ser-vant 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 Government servant when ( 1) he is nnder snspension, or (2) against whom departmental proc.,edings are pend-ing or contemplated. Tuns the permission to retire can be withheld by the appointing authority either when the Government servant is under suspension or against whom departmental proce·,ding;; are pending or contemplated. It was submitted on behalf of the appellant that admittedly he was not under suspension on the date when nc attained the age of 55 years and that no departmental proceedings were pending or contemplated against him as requir~d under the pro-viso. No departmental proceeding was pending but on the facts on~ cannot say that proceeding was not under contemplation.

Mr. T:irknnde, the learned counsel for the appellant, further sub-mitted that in any event the appointing authority had not .:hosen to withhold permission to retire before the date of superannuation. It wa,; subnntted on behalf of the respondent, the State of Gujarat that reading of Rule 161(2) (ii) woul.d show that Government s~rvant c!lnnot !etire_ wit~out t~ specific .P<:rmission of the appointing autho-rity ana as m this case no pernnss1on was granted it should he held that the appointing antbority withheld permission to the Government s~rvant to retire according to the proviso. In support of this conten-tion Mr_. _Pate_!, the l<:amed counsel for the State of Gujarat, relied on the decJSJon ~n .Lewis & Allenby. (1909), !-imi:ed v. Pegge.(I) In that case !Jm;ted company demised residential fiat for term of y~ars and the lessee covenanted not to assign or underlet the premises ~v1thout the consent of the company, such consent not to be withheld m the case cf respectable or responsible person. On 3rd April, 1913 the less~e applied to the Secretary of the company for leave to sub-let to Higham respectable and responsible person and asked

to know by April 14 as Higham wanted possession on that elate. The· Secretary torgot to communicate with his directors. On 14th April the lessee not having received 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 respectable and responsible pers•Jn, if the lessee applies for such consent and within reasonable time that con-B sent 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 circums-tances of the case the_ Court was of the view that the period between 3rd April and 14th April was 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 fail to understand how this decision advances the contenEcn o! Mr. Patel. As no communication was received the Court held that the granting of the permission was mere formality and that ii had to be taken that the con~ent 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 are of the VieW that the pIOViSO COUtemplates positive acti<IJI by the appoint· ing authority. The words "It sball be open to the appointinp, autho-rity to withhold permission" would indicate that the arpointing authority has got an option to withhold permission and that could be exercised by communicating its intention to withhold perrrission to the Government servant. The appointing authority ;nay have con-sidered the question and might not have taken decisio11 cit11er way or after con;idering the facts of the case might have wme to the con-clusion 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 decision but communicate it to the Government servant. It is not necessary that the communication should reach the Government servant. As held by thh 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 deci-sions, th~ CotJrt held that the actual knowledge by the Government servant of an order of dismi"ssal may perhaps become necessary be-cause of the consequences which the decision in the State of Punjah v. Amar Singh l!arika(') 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 actuallv received it. The question as to when the order •hould be deemed to have been communicated is not relevant in this case as admittedlv the order o' suspension was not communicated before the date of s~per-annuation. .

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

(!) [1970] 2 S.CR. 657. (2) A.!.R. 1966 S.C. !3!3.

have been withheld jj' it is not co=unicated. We are not able to read the meaning of the word "withhold" as indicating that ~ !he absence of communication is must be understood as the pernuss1on having been withheld.

It will be useful to refer to the analogons pro<ision in the Funda-mental 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 !a.st day of the month in which he attains the age of fifty-eight years. Fundamental Rule 56 (j) is similar to Rule 161 (aa) (1) of the Bombay Civil Services Rules conkrring an absolute right on the appropriate authority to retire Government servant by giving not less than three months notice. Under Fundamer.tal Rule 56(k) the Government servant is entitled to retire from service after he ha.s attained the age of fifty-five years by giving notice of not less than three months in writing to the appro-priate authority on attaining the age specified. But proviso (b) to sub-rule 56(k) states that it is open to the appropriate anthority to withhold permission to 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 sub~ect to the proviso whereunder the appropriate authority may withhold permission to Government smvant under suspension. On consideratioa of Rule 161 (2) <ii) and the proviso we are satisfied that it is incumbent on the Government to cn=unicate to the Government servant its deci-sion to withhold permission to retire on one of the ground spccificcl in the proviso .

In the view we have taken that the appointing authority has no jurisdiction to take disciplinary proceedings against Government ser-vant who had effectively retired, the question as to whether the High Court was right in holding that the <,lisciplinary authoritv had sufficient gmunds for dismissing the appellant does not ans0. · 111e Inquiry Officer held that the charges had not been established as the witnesses who made al!egJtions against the 11ppellant in their affidavits failed to appear before it. The High Court or the adJninislracive side came to different conclusion on examining the record relating to three cri-minai 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 hut 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 Jone, 1972 and the judgment was pronounced on 17th August, 1972. The High Court observed : . "While exercising our jurisdiction under Article 226 we are not con-cerned with the adequacy of evidence. All that w~ have to see is whether there is evidence on which reasonable inference could be drawn." Jn the circumstances of the case, the High Court was of the

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 f~om 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 nnd the judgment of the High Court are set aside. There will be no order as to costs.

Appeal allowed.

,., ' ~ ~-· / :f 1