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2014 DIGILAW 2819 (ALL)

MUNNI PRASAD MISHRA v. STATE OF U. P.

2014-09-11

MAHESH CHANDRA TRIPATHI

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JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard Shri H.P. Shahi, who appears for the petitioner and Mr. Pankaj Rai, learned Additional Chief Standing Counsel for the respondents. By means of the present writ petition the petitioner has prayed for quashing of the impugned termination order dated 9.3.2004(Annexure No. 1 to the writ petition) passed by Senior Superintendent of Police, Kanpur Nagar as well as order dated 10.12.2007 (Annexure No. 2 to the writ petition) passed by the State Government. 2. The brief facts giving rise to the present writ petition are as follows. : The petitioner was initially appointed as Constable in the year 1978 and, thereafter, he was promoted to the post of Head Constable. Due to absence from the duty since 28.9.2002 he had been served upon charge-sheet on 3.3.2003. Subsequently, the petitioner moved an application seeking for voluntary retirement on 29.8.2003. Immediately on 19.9.2003 the Superintendent of Police had issued notices calling upon the petitioner to explain as to why he is seeking voluntary retirement. The notice dated 19.9.2003 is being brought on record as Annexure - 6 to the writ petition. In response to the notice dated 19.9.2003 the petitioner made application giving reasons for voluntary retirement on 24.9.2003. Thereafter, the impugned termination order dated 9.3.2004 had been passed. The reasons mentioned in the impugned termination order was only unauthorized absence of 181 days. 3. Aggrieved by the said termination order, the petitioner has filed an appeal under Rule 25 of Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. Thereafter, the State Government had rejected the claim of the petitioner and affirmed the termination order. Aggrieved by the said rejection order dated 10.12.07 the present writ petition is being filed. 4. The law relating to voluntary retirement has now been settled by the Apex Court as well as by this Court. Some of the Judgments are referred herein. : The Hon’ble Apex Court, while considering the voluntary retirement in B.J. Shelat v. State of Gujarat and others, (1978)2 SCC 202 , especially considered the intention to withhold and also considered the duty of the State Government to communicate such intention to withhold. Relevant portion of the judgement are reproduced as hereunder. : “Mr. : The Hon’ble Apex Court, while considering the voluntary retirement in B.J. Shelat v. State of Gujarat and others, (1978)2 SCC 202 , especially considered the intention to withhold and also considered the duty of the State Government to communicate such intention to withhold. Relevant portion of the judgement are reproduced as hereunder. : “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 (1) [1970] 2 S.CR. 657. (2) A.T.R: 1966 S.C. 1313. 559 have been withheld if it is not communicated. We are not able to read the meaning of the word “withhold” as indicating that in the absence of a communication is must be understood as the permission having been withheld. It will be useful to refer to the analogous provision in the Fundamental 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 last day of the month in which lie attains the age of fifty-eight years. Fundamental Rule 56 (j) is similar to Rule 161 (aa) (1) of the Bombay Civil Services Rules conferring an absolute right on the appropriate authority to retire a Government servant by giving not less than three months notice. Under Fundamental Rule 56(k) the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to sub-rule 56(k) states that it is open to the appropriate authority to withhold permission to a 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 subject to the proviso wherever the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of Rule 161(2) (ii) and the proviso we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the ground specified in the proviso.” 5. On a consideration of Rule 161(2) (ii) and the proviso we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the ground specified in the proviso.” 5. The Hon’ble Apex Court in the case of Dinesh Chandra Sangma v. State of Assam and others, AIR 1978 SC 17 , has also considered the same issue. The relevant paragraphs are reproduced hereunder. : “7. Before we proceed further we may read F. R. 56 as amended “F.R.56(a) The date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years. He may be retained in service after this age with sanction of the State Government on public grounds which must be recorded in writing, and proposals for the retention of a Government servant in service after this age should not be made except in very special circumstances. (b) Notwithstanding anything contained in these rules the appropriate authority may, if he ‘is of the opinion that it is in the public interest to do so, retire Government servant by giving him notice of not less than three months in writing or three months’ pay and allowances in lieu of such notice, after he has attained fifty years of age or has completed 25 years of service, whichever is earlier. (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 of fifty years or has completed 25 years of service, whichever is earlier”. It is clear from the above that under F. R. 56(b) the Government may retire a Government servant in the public interest by giving him three months: notice in writing or three months pay and allowance,; in lieu thereof after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier. 8. As is well known Government servants hold office during the pleasure of the President or the Governor, as the case may be, under Article 310 of. the Constitution. However, the pleasure doctrine under Article 3 1 0 is limited by Article 311 (2). 8. As is well known Government servants hold office during the pleasure of the President or the Governor, as the case may be, under Article 310 of. the Constitution. However, the pleasure doctrine under Article 3 1 0 is limited by Article 311 (2). It is- clear that the services of a permanent Government servant cannot be terminated except in accordance with the rules made under Article 309 subject to Article 311(2) of the Constitution and the Fundamental Rights. it is also well-settled that even a temporary Government servant or a probationer cannot be dismissed or removed or reduced in rank except in accordance with Article 311(2). The above doctrine of pleasure is invoked by the Government in the public interest after a Government servant attains the age of 50 years or has completed 25 years of service. This is constitutionally permissible as compulsory termination of service under F.R. 56(b) does not amount to removal or dismissal. by way of punishment. While the Government reserves its right to compulsorily retire a Government servant, even against his wish, there is a corresponding right of the Government servant under F. R. 56(c) 611 to voluntarily retire from service by giving the Government three months’ notice in writing. There is no question of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right ‘under F. R. 56(c). Mr. Niren De is therefore right in conceding this position. 9. We have, therefore, next to turn to Rule 119 of the DISI Rules which is the sheet-anchor of the respondents. Rule 119, so far as material, reads as follows : “(3) Any person engaged in any employment or class of employment to which this rule applies, who- (a) x xx (b) Without reasonable excuse abandons any such employment or absents himself from work, or (c) x x x shall be deemed to have contravened this rule “. “Explanation 2. A person abandons his employment within the meaning of cl. “Explanation 2. A person abandons his employment within the meaning of cl. (b), who, notwithstanding that it is an express or implied term of this contract of employment that he may terminate his employment on giving notice to his employer of his intention to do so, so terminates his employment without the previous consent of his employer Clause (5) of Rule 1 19 may be read “If any person contravenes any provisions of this rule or of any order made under this rule, he shall be punishable, without prejudice to any action which may be taken against him under any other law for the time being in force, with imprisonment for a term which may extend to one year, or with fine or with both”. 13. F.R. 56 is one of the statutory rules which binds the Government as well as the Government servant. The condition of service which is envisaged in Rule 56(c) giving an option in absolute terms to a Government servant to voluntarily retire with three months’ previous notice after he reaches 50 years of age or has completed 25 years of service cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119. 14.The field occupied by F. R. 56 is left untrammelled by Explanation to Rule 1 19. The words “his contract of employment” in Explanation are clinching on the point. 15. It is a cardinal rule of construction that no words should be considered redundant or surplus in interpreting the provisions of a statute or a rule. Explanation 2 does not say an express or implied term of employment, but refers to “an express or implied term of his contract of, employment”. If the language in Explanation 2 were different, namely, an express or implied term of employment, instead of “con tract of employment”, the position would have been different, Explanation 2 in Rule 119, albeit, a penal rule, takes care to use the words “contract of employment” and necessarily excludes the two categories (1) [1968] (1) S.C.R. 185. (2) Salmond and Williams of Contracts, 2nd edition p. 12. 614 of employment, namely, the one under the Central Government and the other under the State Government. (2) Salmond and Williams of Contracts, 2nd edition p. 12. 614 of employment, namely, the one under the Central Government and the other under the State Government. Explanation 2 only takes in its sweep the third category of employment where the relationship between the employer and the employee is one governed by a contract of employment Since F. R. 56 is a statutory condition of service, which operates in law, without reference to a contract of employment, there is nothing inconsistent between Rule 119 and F.R. 56. 16. The appellant has voluntarily retired by three months’ notice, not in accordance with an express or implied term of his contract of employment, but in pursuance of a statutory rule. Explanation 2 to Rule 119 makes no mention of retirement under a statutory rule and hence the same is clearly out of the way. The submission that Rule 119 is super-imposed on F.R. 56 has no force in this case. 17.The High Court committed an error on law in holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F.R. 56 (c). Since the conditions of F.R. 56(c) are fulfilled in the instant case, the appellant must be hold to have lawfully retired as notified by him with effect from 2nd August, 1976. 18. In this view of the matter the permission accorded by the Government to retire and its subsequent order of July 28, 1976, revoking the permission, are ineffectual in law and are therefore null and void. Since the appellant voluntarily retired in accordance with F.R. 56(c), the High Court’s order of July 31, 1976, on the administrative side, transferring him to Dhubri is invalid and is hereby quashed. In the result the judgment and order of the High Court of March 4, 1977, are set aside and the Writ Petition is allowed. The appeal is allowed with costs in this Court as well as in the High Court. S.R. Appeal allowed.’’ 6. In the result the judgment and order of the High Court of March 4, 1977, are set aside and the Writ Petition is allowed. The appeal is allowed with costs in this Court as well as in the High Court. S.R. Appeal allowed.’’ 6. The Hon’ble High Court in the case of Surendra Kumar Agarwal v. Engineer-in-Chief, U.P. P.W.D. Lucknow and another, 2004(1) ESC 244 (All), has also considered the U.P. Fundamental Rules-Rule 56 c&d in which the Court has held if the petitioner moves voluntary retirement on the said date when vigilance enquiry was pending against him, as per provisions of second proviso to Rule 56d the Government Servant is to be informed before 90 days that his notice has not been accepted. 7. In the present matter, learned counsel for the petitioner has placed reliance to the U.P. Fundamental Rules 56 c & d by which he has submitted that the authority concerned was duty bound to decide the application of the petitioner for voluntary retirement within a stipulated time i.e., within three months’ time. The said rule had been flouted and his application for voluntary retirement had never been considered and finally the impugned termination order had been passed. 8. The Hon’ble High Court, while considering premature retirement in Surendra Narain Singh v. D.I.G. of Police, Gorakhpur, 1995(1) LBESR 871, has held that on expiry of a period of three months notice, the pre-mature retirement of the employee stood accepted, subsequent suspension and dismissal from service on ground of absence from leave is totally unacceptable and void. For ready reference the relevant paragraphs 7, 8 &9 are reproduced here under. : “7. In string of judicial precedents it has been held that request for premature retirement does not require a specific order accepting it by the concerned authority before an employee can be deemed to have retired from service. In other words, unless a particular Rule says otherwise, on the expiry of the period of the notice for premature retirement, the employee seeking it shall be deemed to have retired, unless, in the meanwhile, a specific order has been passed, to the contrary, whether on account of contemplated disciplinary proceedings or otherwise. 8. In other words, unless a particular Rule says otherwise, on the expiry of the period of the notice for premature retirement, the employee seeking it shall be deemed to have retired, unless, in the meanwhile, a specific order has been passed, to the contrary, whether on account of contemplated disciplinary proceedings or otherwise. 8. In a recent judement, the Supreme Court in Union of India v. Sayeed Muzaffar Mir, (1995) I UPLBEC 146, held, while interpreting 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. A similar view was expressed in two earlier judgments of the Supreme Court in Dinesh Chandra Sangama v. State of Assam, AIR 1978 SC 17 and B.J. Shelat v. State of Gujarat, (1978) 2 SCC 202 . 9. Applying the rationals as enunciated by the Supreme Court in the judicial precedents referred to, it cannot but follow that the request of the appellant for premature retirement must be deemed to have stood accepted on the expiry of the three months’ period of notice from the date thereof, that is, February, 1989. This being so, the subsequent orders of suspension and of dismissal passed against the appellant have inevitably to be held to be void.” 9. For ready reference Fundamental Rules 56 c&d are read as follows. : “4. Fundamental Rule 56 (c) and (d) read as follows: “(c) Notwithstanding anything contained in clause (a) or clause (b) the appointing authority may, at any time by notice to any Government Servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty-five years or after he has completed qualifying service of twenty years. (d) The period of such notice shall be three months: Provided: (i) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement. (ii) It shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice: Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted.” 5. A perusal of the impugned order shows that the petitioner’s application had been rejected on the ground that a vigilance enquiry is pending. 6. The submission of the learned counsel is that no order has been passed with reference to the second proviso to clause (d) of Fundamental Rule 56, within 90 days of the submission of the said application and hence in view of the second proviso to clause (d) the petitioner will be deemed to have voluntarily retired. 7. No doubt, it has not been specifically mentioned in the second proviso to clause (d) of Fundamental Rule 56 that if the prayer of the employee seeking voluntary retirement is not accepted within three months it will be deemed to have been accepted. However, in our opinion, since second proviso puts a time limit for intimating the applicant about the refusal of his prayer, this by implication means that if no such intimation is given within three months the prayer will be deemed to have been accepted. 8. However, in our opinion, since second proviso puts a time limit for intimating the applicant about the refusal of his prayer, this by implication means that if no such intimation is given within three months the prayer will be deemed to have been accepted. 8. In this connection we may refer to the series of decisions of the Supreme Court which have laid down that while ordinarily a probationer will be deemed to have continued on probation even after the period of probation has expired, if the maximum period of probation has been fixed in the service rules, then there will be deemed to have been implied confirmation on the expiry of that maximum period, vide Wasim Beg v. State of U.P.,1998 (2)AWC 1342 (SC) 1998(3) SCC 321 (vide para 15) State of Punjab v. Dharam Singh, AIR 1968 SC 1210 ; State of Gujarat v. Akhilesh Bhargava, (1987) 4 SCC 482 , O.P. Maurya v. U.P. Cooperative Sugar Factories Federation, 1986 (Supp) SCC 95 and M.K. Agarwal v. Gurgaon Gramin Bank, 1987 (Supp) SCC 643, etc. 9.The analogy of these decisions applies in this case too. Here the maximum period within which the intimation of rejection of the application seeking voluntary retirement is fixed by the rules. Hence on the expiry of that period, if no intimation is sent by them, the application will be deemed to have been allowed. 10. No doubt, it has been stated in Annexure-22 to the writ petition that petitioner’s application dated 4.12.2000 has not been received by the Chief Engineer and the Government. However, this statement does not appear to be correct because it has been positively asserted in paragraphs 16,19 and 27 of the writ petition that petitioner served a notice dated 2.12.2000 on respondent No. 2. It has been stated in paragraph 27 of the writ petition that the said application seeking voluntary retirement was received in the office of the Engineer-in-Chief and for this a receipt has also been received by the office (vide Annexure-15 to the writ petition). Since there is no counter-affidavit these allegations are unrebutted and have to be accepted. 11. It has been stated in paragraph 27 of the writ petition that the said application seeking voluntary retirement was received in the office of the Engineer-in-Chief and for this a receipt has also been received by the office (vide Annexure-15 to the writ petition). Since there is no counter-affidavit these allegations are unrebutted and have to be accepted. 11. Since the petitioner was not informed before the expiry of the notice period (three months) that his application has not been accepted, it will be deemed to have been accepted and the petitioner would have also be deemed to have voluntarily retired on the expiry of three months. 12. For the reasons given above, the petition is allowed. The impugned orders are quashed. Respondents are directed to treat the petitioner as having voluntarily retired with effect from the expiry of 90 days from 4.12.2000.” 10. Learned counsel for the petitioner has criticized the impugned order on two folds. Firstly the charge against the petition was only unauthorized absence for 181 days in different spells which he had adequately explained, but inspite of the categorical stand the same was not taken care of, and the impugned termination order was clearly disproportionate to the charges leveled against him. Secondly, once the petitioner had moved the application for voluntary retirement, the authority was duty bound to decide the said application as per Fundamental Rule 56 c&d and the Government Servant is to be informed before 90 days that his notice has not been accepted. He further submits that the said rule had been flouted and his application for voluntary retirement had never been considered, even though which was duly acknowledged by the authority. 11. However, Mr. Pankaj Rai, learned Additional Chief Standing Counsel has refuted the claim on the ground that the petitioner was habitual absconder from the duty without any proper leave. Due to absence from duty the departmental proceeding was initiated against him and in preliminary enquiry the petitioner was prima facie found guilty. Thereafter, departmental proceeding under Rule 14(1) of the U.P. Police Officer of Subordinate Rank (Punishment & Appeal) Rules, 1991 was initiated against the petitioner and after conducting detailed enquiry vide order dated 9.3.2004 the services of the petitioner were terminated by the respondent No. 2. Thereafter, departmental proceeding under Rule 14(1) of the U.P. Police Officer of Subordinate Rank (Punishment & Appeal) Rules, 1991 was initiated against the petitioner and after conducting detailed enquiry vide order dated 9.3.2004 the services of the petitioner were terminated by the respondent No. 2. Against the said termination order dated 9.3.2004 the petitioner filed an appeal before the State Government, which was rejected by the State Government vide order No. 5409(1)/6-Po-1-2007 dated 10.12.2007. 12. Heard rival submission and perused the record. A perusal of the impugned order shows that the petitioner’s application for voluntary retirement was never been rejected in the matter and further the submission of the learned counsel for the petitioner is that no order has been passed, the same is apparant from the records. In the present matter, admittedly, the petitioner has moved an application seeking voluntary retirement on 29.8.2003. Immediately thereafter, the notices had been sent by the Superintendent of Police calling upon the petitioner as to explain why he is seeking voluntary retirement. This clearly shows that the application was served upon the competent authority, the same is also reflected from paragraph 6 of the counter-affidavit filed by State, the same is reproduced herein. : “6. That the contents of paragraph No. 10 of the writ petition as stated are incorrect and as such are denied. In reply thereto it is stated that although the petitioner has moved an application on 1.1.2004 seeking voluntary retirement, but since departmental proceeding was pending against the petitioner he was not allowed pension.” 13. It is admitted situation that inspite of the said acknowledgment, the same was never acted upon and his application for voluntarily retirement was never decided, and, it is apparent that the said application, had never been processed by the competent authority as per the U.P. Fundamental Rules. 14. Since the petitioner had never been informed before the expiry of the notice period (three months) since his application dated 19.9.03, it would will deemed to be accepted by the department and the petitioner would deemed to be voluntarily retired on the expiry of three months. For the reasons given above, the impugned termination order dated 9.3.2004 and appellate order dated 10.12.2007 are unsustainable and, accordingly, quashed. The respondents are directed to treat the petitioner as having voluntarily retired with effect from the expiry of 90 days since 29.8.2003. For the reasons given above, the impugned termination order dated 9.3.2004 and appellate order dated 10.12.2007 are unsustainable and, accordingly, quashed. The respondents are directed to treat the petitioner as having voluntarily retired with effect from the expiry of 90 days since 29.8.2003. With the aforesaid orders, this writ petition is allowed. —————