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2008 DIGILAW 383 (PAT)

B. S. Food & Civil Supplies v. Prem Nath Thakur

2008-02-22

BARIN GHOSH, RAJESH BALIA

body2008
Judgment 1. Having heard learned counsel for the parties, we do not find any merit in this appeal. 2. It is a case in which respondent has been compulsorily retired in terms of the power under R. 29(B) of the Conduct and Disciplinary Rules of the Corporation. According to the Rules the petitioner-respondent could have been compulsorily retired from service either by serving three months notice or three months pay alongwith the notice, apart from following other necessary conditions. 3. The petitioner-respondent was compulsorily retired on 14.9.2002. Admittedly, no notice in terms of R. 29(B) of the Conduct and Disciplinary Rules for a period of three months was given nor three months pay in lieu of the notice was given though in the order of compulsory retirement it was stated that the salary in lieu of three months notice has been made. 4. This led to the filing of the C.W.J.C. No. 4800 of 2005 challenging the order of the compulsory retirement. 5. It is also not in dispute that until filing of C.W.J.C. No. 4800 of 2005 no payment has been offered to the respondent-petitioner. In these circumstances, condition precedent for compulsory retirement of a person had not been fulfilled. In that view of the matter, the order of the compulsory retirement has been quashed. Reliance has been placed on the Bench decision of this Court reported in the case of Rana Abhai Singh V/s. Hon ble High Court of Judicature at Patna & Ors., 2006 3 PLJR 400. 6. It is not in dispute that the Rule requires three months notice prior to the date of retirement or salary in lieu of three months notice to be paid to the incumbent. The question would be whether three months salary is to be paid as a condition precedent before the order of compulsory retirement comes into effect or it can be paid later and if it can be paid later when it is to be paid. 7. It is not in dispute that three months salary in lieu of notice had not been paid until filing of the writ petition in the year 2005 that is to say until three years. Therefore, it is a clear case of non-payment of salary in lieu of notice at all. Obviously three months notice had to be given clearly three months before the intended effective date of retirement. Therefore, it is a clear case of non-payment of salary in lieu of notice at all. Obviously three months notice had to be given clearly three months before the intended effective date of retirement. Ordinarily the payment in lieu of three months notice must also precede the effective date of compulsory retirement. Assuming distinct from notice period payment of salary in lieu of notice period, where compulsory retirement is to be effective immediately, is not a condition precedent, it cannot be assumed to be an illusory condition subsequent. In such event the salary in lieu of notice must follow within a reasonable period. The case before the Division Bench was that no payment was made. 8. Reliance has been placed by the learned counsel for the petitioner-appellant on the case of State of Uttar Pradesh and Another V/s. Raj Kishore Bhargava, 1992 Supp2 SCC 92. This was a case in which three months salary in lieu of notice was sent by cheque within three months from the date of compulsory retirement and the Supreme Court sustained the order of compulsory retirement. 9. However, in the present case, no payment was made until three years after filing of writ petition. It is only after filing of the writ in the year 2006 during the pendency of this application, a cheque was issued. Thus, it cannot be said to be the compliance of the Rule in any sense. 10. In view of the above discussions, we do not find any merit in this appeal. Accordingly, the appeal is dismissed.