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