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2005 DIGILAW 1618 (RAJ)

Kan Mal Bohra v. State of Rajasthan

2005-06-01

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment 1. Heard learned Counsel for the appellant as well as learned Additional Government Advocate. 2. The appeal is directed against the order of learned Single Judge dt. 010.1997 dismissing the writ petition filed by the appellant. 3. The facts of the case are that the petitioner was given a notice calling upon his explanation about certain misconduct by order dated 04.06.1986. He submitted his reply on 11.06.1986. Thereafter, the petitioner moved an application seeking voluntary retirement in terms of Rule 244 (1) of the Rajasthan Service Rules, 1951 w.e.f. 30.09.1986. On the basis of decision taken in the meeting held on 07.06.1986, the Disciplinary Authority vide order dated 12.06.1986 suspended the petitioner under Rule 5 of Rajasthan Panchayat Samitis and Zila Parishad Services (Punishment and Appeal) Rules, 1961 in complementation of inquiry and in furtherance of the aforesaid, show cause notice was issued on 12.06.1986 and the charge-sheet was issued on the same day. Considering these facts, vide Annexure-9 in its meeting held on 08.07.1986 the Administrative Committee of the Department resolved that it is not possible to grant permission for voluntary retirement to the petitioner and looking to the conduct of the petitioner, one more charge was framed against him. 4. After receiving the report of the Inquiry Officer, the aforesaid Committee again considered the case of the petitioner in its meeting dt. 23.09.1986. After considering the finding of the Inquiry Officer which disclosed misconduct of the petitioner, it also considered that the Inquiry Officer has recommended the minimum punishment of recorded warning and stoppage of one grade increment. It opined that since the petitioner has sought voluntary retirement with effect from 30.09.1986, looking to the facts and circumstances of the case it did not seem expedient to impose punishment of stoppage of one grade increment. Consequently it decided to accept the request for voluntary retirement w.e.f. 30.09.1986. However, it further ordered that period during which petitioner remained under suspension, he may not be treated in service. 5. In furtherance of this, the petitioner retired w.e.f. 30.09.1986. He became entitled to retiral benefit w.e.f. 01.07.1986. 6. Aggrieved of this order, the petitioner appealed before the appellate Authority. However, it further ordered that period during which petitioner remained under suspension, he may not be treated in service. 5. In furtherance of this, the petitioner retired w.e.f. 30.09.1986. He became entitled to retiral benefit w.e.f. 01.07.1986. 6. Aggrieved of this order, the petitioner appealed before the appellate Authority. By order dated 13.07.1987, the appellate authority held that suspension period from 13.06.1986 to 30.09.1986 may be included in the service period of the petitioner inasmuch as until 08.07.1986 no inquiry report has been submitted; the earlier decision was taken in terms of Rule 244 (1) for withholding the permission to voluntary retirement as the inquiry was pending and incumbent was suspended, but the same has been accepted after receiving the report of the Inquiry Officer. 7. The petitioner against the order passed by the appellate authority filed appeal before the Director, Jaipur and when no response was received, he moved representation dated 01.09.1987 stating if once the notice for voluntary retirement had been refused by the competent authority, it could not be accepted later on as it becomes inoperative in the eye of law. Thereafter, the petitioner preferred the writ petition in 1989. 8. The principal contentions raised by the petitioner were firstly; that since the application for voluntary retirement was once rejected on 08.07.1986, the order could not have been reviewed and secondly the order Annexure-12 was an acceptance of voluntary retirement application by way of punishment as it was stigmatic and that once the order having been passed withholding the application, after receiving the report from the Inquiry Officer, the same cannot be reviewed and accepted. 9. Both the contentions did not find favour with the learned Single Judges who after referring to provisions of Rule 244 (1) of the Rules of 1951 and after perusal of Annexure. 9, came to the conclusion that order dated 08.07.1986 (Annexure-9) was only an order withholding the permission for voluntary retirement. The petitioners request for voluntary retirement under the provision of Rule 244(1) when he was under suspension and inquiry was pending in which major punishment could have imposed, therefore, in contemplation of enquiry, the application could not have been considered on its merit. It appears that the petitioner has not raised any contention about incorrectness of the order before the learned Single Judge. 10. It appears that the petitioner has not raised any contention about incorrectness of the order before the learned Single Judge. 10. Be that as it may, having heard learned Counsel for the parties, we are satisfied that no interference is called for in this appeal. The provisions of Rule 244(1) do not envisage giving unfettered right to the applicant for voluntary retirement. In fact, there are two conditions precedent before incumbent can exercise his right to voluntary retirement from service namely he should have 20 years qualifying service and at least give 3 months previous notice in writing to the Appointing Authority. 11. Sub-clause 2 of Clause (i) envisaged that a Government servant who has given notice for seeking retirement under Clause (a) of this sub-rule, may presume acceptance of the notice of retirement and the retirement shall be effective in terms of the notice automatically unless an order in writing to the contrary has been issued by the Competent Authority and served upon the Government servant before the expiry of the period of the notice. 12. The contrary order to the acceptance of the voluntary retirement application has been envisaged under proviso to Sub-rule 1 as under:-Provided that it shall be open to the Appointing Authority to with-hold permission to retire a Government Servant:- (i) who is under suspension: (ii) in whose case disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service: (iii) in whose case prosecution is contemplated or may have been launched in a Court of law: 13. It is apparent from perusal of aforesaid rule which provides that if the charge of miscounduct is proved in duly conducted inquiry or offence is proved and have been admitted by the incumbent which could result in removal or dismissal from the service, the person cannot be allowed to voluntarily retire from service until pending enquiry. It is apparent from perusal of aforesaid rule which provides that if the charge of miscounduct is proved in duly conducted inquiry or offence is proved and have been admitted by the incumbent which could result in removal or dismissal from the service, the person cannot be allowed to voluntarily retire from service until pending enquiry. It needs notice that under Cause (ii) of proviso to Sub-rule (1) it is contemplated that the permission to voluntary retirement can be withheld where the disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service. In any other case, the rejection of voluntarily retirement application is ordinarily not contemplated. 14. In the light of the aforesaid, if we consider the order Annexure-12 it is apparent that the reason given for withholding the application for voluntary retirement was such that the report of the Inquiry Officer was to be considered and if punishment of removal or dismissal was likely to be imposed, the appellate authority was within its jurisdiction not to accept the request for voluntary retirement until the inquiry has been completed. Decision to withhold such permission was also conveyed to the petitioner. 15. The order of the authority for forfeiture of the service during suspension obviously could not have been done while accepting application for voluntary retirement. However, the order was appealed against and the appellate authority finding that order to the extent of forfeiture of the service during the suspension period was not justified, when the voluntary retirement application was accepted w.e.f. 30.09.1986 unconditionally without imposing any penalty, directed to count the said period of service. 16. As a matter of fact, merely because the decision on application for voluntary retirement has been kept in abeyance as at that time an enquiry into the charges which could lead to imposition of major penalty was contemplated, subsequent acceptance of such request after receipt of enquiry report without taking any action in pursuance thereof without anything more cannot be held as stigmatic. 17. In this view of matter, we are of the opinion that no interference can be made in the order passed by the learned Single Judge in dismissing the petition filed by the petitioner. 17. In this view of matter, we are of the opinion that no interference can be made in the order passed by the learned Single Judge in dismissing the petition filed by the petitioner. Accordingly, the appeal fails and is hereby dismissed. No order as costs.