The reasons given by the Tribunal in its order are that the prosecution has failed to prove the case beyond reasonable doubt about the demand and acceptance of the bribe and the criminal court has acquitted the respondent and it was open for the authorities to proceed against the respondent departmentally, but no such departmental proceedings were initiated to prove the misconduct of the respondent. The approach of the Tribunal, in our considered opinion, was not correct. Sub-rule (3) of F.R. 54-B does not state that in

                                                           Reportable


              IN THE SUPREME COURT OF INDIA



                CIVIL APPELLATE JURISDICTION


              CIVIL APPEAL No.  6014 OF 2011

         (Arising out of S.L.P. (C) No. 22723 of 2010)


                                     

The Greater Hyderabad Municipal Corporation   ...  Appellant



                                Versus



M. Prabhakar Rao                                          ...... Respondent





                               J U D G M E N T


A. K. PATNAIK, J.



      Delay condoned.



2.    Leave granted.



3.    This   is   an   appeal   against   the   order   dated   18.02.2010



of   the   Division   Bench   of   the   Andhra   Pradesh   High   Court



dismissing   Writ   Petition   No.1564   of   2010   of   the   appellant



against   the   order   dated  18.08.2009  of  the  Andhra   Pradesh



Administrative   Tribunal,   Hyderabad,   in   O.A.   No.7377   of



2008.


                                   2




4.      The facts briefly are that the respondent was working



as   a   Bill   Collector   in   the   Municipal   Corporation   of



Hyderabad.         On   19.05.2007,   he   was   placed   under



suspension   by   the   Commissioner   &   Special   Officer,



Municipal   Corporation   of   Hyderabad   (for   short   `the



competent   authority),   as   it   was   reported   by   the   Deputy



Director,   Anti-Corruption   Bureau,   C.I.U.   and   City   Range



Hyderabad,   that   he   had   demanded   Rs.2,000/-   from   the



complainant,   M.R.   Srinivas,   for   assessment   of   his   house



and had accepted the bribe.  On 28.06.2001, the competent



authority   revoked   the   suspension   of   the   respondent   and



reinstated   him   in   service   without   prejudice   to   the



prosecution pending against him and posted him in a non-



focal   post.     The   respondent   was  thereafter   prosecuted,   but



acquitted by the trial court.  The acquittal of the respondent



was   challenged   by   the   State   in   the   Andhra   Pradesh   High



Court   in   Criminal   Appeal   No.   2548   of   2004,   but   by



judgment   dated   06.12.2004,   the   High   Court   dismissed   the



appeal.



5.      The   respondent   then   made   a   representation   seeking



back-wages   for   the   suspension   period   and   other


                                      3




consequential benefits, but the same was rejected by Memo



dated   01.07.2005.     The   respondent   filed   O.A.   No.3627   of



2005   before   the   Andhra   Pradesh   Administrative   Tribunal,



Hyderabad (for short `the Tribunal') against such rejection of



back-wages   for   the   suspension   period   and   by   order   dated



13.11.2006,   the   Tribunal   set   aside   the   Memo   dated



01.07.2005 and remitted the matter to the authorities with



a direction to re-examine  the  entire  issue  with  reference to



the   rules   and   pass   appropriate   orders   duly   giving   an



opportunity to the respondent.   The competent authority in



his order dated 17.11.2008 re-examined the issue and took



the   view   that   the   suspension   of   the   respondent   cannot   be



regarded   as   wholly   unjustified   and   hence   the   back-wages



and consequential benefits for the suspension period cannot



be paid to the respondent.   Aggrieved,  the respondent  filed



O.A.   No.7377   of   2008   before   the   Tribunal   and   by   order



dated   18.08.2009,   the   Tribunal   allowed   the   O.A.   and   set



aside the order dated 17.11.2008 of the competent authority



and   declared   that   the   respondent   was   entitled   for   treating



the   period   of   suspension   as   on   duty   and   for   release   of   all



consequential benefits.   The appellant challenged the order


                                     4




of   the   Tribunal   before   the   High   Court   in   Writ   Petition   No.



1564   of   2010   but   by   the   impugned   order,   the   High   Court



dismissed the Writ Petition.



6.      Mrs.   D.   Bharathi   Reddy,   learned   counsel   for   the



appellant, submitted that under the F.R. 54-B of the Andhra



Pradesh Fundamental Rules (for short `F.R. 54-B'), which is



applicable   to   employees   of   the   Municipal   Corporation   of



Hyderabad,   the   competent   authority   has   been   vested   with



the   power   to   pass   an   order   as   to   how   the   period   of



suspension would be treated.   She submitted that sub-rule



(3) of F.R. 54-B provides that where the competent authority



is of the opinion that the suspension was wholly unjustified,



an employee would be paid full pay and allowances to which



he   would   have   been   entitled,   had   he   not   been   suspended.



She   submitted   that   in   the   facts   of   the   present   case,   the



respondent had been placed under suspension for accepting



a bribe from  the complainant  and  a  charge  sheet  was  filed



in the court against him, but he was acquitted by the trial



court and the High Court has sustained the acquittal of the



respondent   only   because   the   prosecution   witnesses   had



turned hostile and did not support the prosecution version


                                    5




that   the   respondent   was   paid   Rs.2,000/-   towards   illegal



gratification   and   on   these   facts,   the   competent   authority



had   rightly   taken   the   view   that   the   suspension   cannot   be



regarded   as   wholly   unjustified.     She   submitted   that   the



orders   passed   by   the   Tribunal   and   the   High   Court,



therefore, should be set aside.



7.         Mr.   Naveen   R.   Nath,   learned   counsel   for   the



respondent,   on   the   other   hand,   submitted   that   the   High



Court,   after   going   through   the   evidence   adduced   by   the



prosecution and the finding of the Tribunal, did not find any



compelling reason to interfere with the judgment of the trial



court   acquitting   the   respondent.     He   submitted   that  it   will



be clear from the judgments of the trial court and the High



Court   that   the   suspension   of   the   respondent   was   wholly



unjustified   and   yet   the   competent   authority   took   the



erroneous   view   in   the   order   dated   17.11.2008   that   the



suspension   of   the   respondent   cannot   be   regarded   as



unjustified.  He submitted that the Tribunal has rightly held



that the suspension of the appellant was unjustified and the



High Court has held in the impugned order that the order of



the Tribunal needs no interference.


                                      6




8.     Sub-rule (3) of F.R. 54-B is extracted hereinbelow:



         "(3)   Where   the   authority   competent   to

         order   reinstatement   is   of   the   opinion   that

         the suspension was wholly unjustified, the

         Government   servant   shall   subject   to   the

         provisions   of   sub-rule   (8),   be   paid   the   full

         pay   and   allowances   to   which   he   would

         have   been   entitled,   had   he   not   been

         suspended:




         Provided   that   where   such   authority   is   of

         the   opinion   that   the   termination   of   the

         proceedings            instituted         against         the

         Government servant had been delayed due

         to   reasons   directly   attributable   to   the

         Government   servant,   it   may   after   giving

         him   an   opportunity   to   make   his

         representation   [within   sixty   days   from   the

         date   on   which   communication   to   this

         regard   is   served   on   him]   and   after

         considering   the   representation,   if   any

         submitted by him, direct for reasons to be

         recorded   in   writing,   that   the   Government

         servant shall be paid for the period of such

         delay   [only   such   amount   (not   being   the

         whole)   of   such   pay   and   allowances   as   it

         may determine]."




Sub-rule (3) of F.R. 54-B extracted above, thus, vests power



on   the   authority   competent   to   order   reinstatement   to   form



an   opinion   whether   suspension   of   a   Government   servant



was wholly unjustified and if, in his opinion, the suspension



of   such   Government   servant   is   wholly   unjustified,   such



Government servant will be paid full pay and allowances to


                                    7




which   he   would   have   been   entitled,   had   he   not   been



suspended.     The   proviso   to   sub-rule   (3)   of   F.R.   54-B,



however, states that where such authority is of the opinion



that   the   termination   of   the   proceedings   instituted   against



the   Government   servant   had   been   delayed   due   to   reasons



directly   attributable   to   the   Government   servant   then   the



Government   servant   shall   be   paid   for   the   period   of   such



delay   only   such   amount   (not   being   the   whole)   of   such   pay



and allowances as  it may  determine.    In other words, even



where   the   competent   authority   is   of   the   opinion   that   the



suspension was wholly unjustified, the Government servant



may   still   not   be   entitled   to   be   paid   the   whole   pay   and



allowances,   but   may   be   paid   such   pay   and   allowances   as



may be determined by the competent authority.



9.    The   rationale,   on   which   sub-rule   (3)   of   F.R.   54-B   is



based, is that during the period of suspension an employee



does not  work and, therefore, he is not  entitled to any  pay



unless after the termination of the disciplinary proceedings



or   the   criminal   proceedings   the   competent   authority   is   of



the opinion that the suspension of the employee was wholly



unjustified.   This rationale has been explained in clear and


                                           8




lucid   language   by   a   three-Judge   Bench   of   this   Court   in



Union   of   India   &   Ors.   v.  K.V.   Jankiraman   &   Ors.   [(1991)   4



SCC   109].   At   page   121   in   Para   26   P.B.   Sawant,   J,   writing



the   judgment   for   the   Court   in   the   aforesaid   case   further



observed:



          "26. .......  However, there  may  be cases  where

          the   proceedings,   whether   disciplinary   or

          criminal,   are,   for   example,   delayed   at   the

          instance   of   the   employee   or   the   clearance   in

          the disciplinary proceedings or acquittal in the

          criminal proceedings is with benefit of doubt or

          on account  of  non-availability   of evidence  due

          to the acts attributable to the employee etc.  In

          such circumstances, the concerned authorities

          must   be   vested   with   the   power   to   decide

          whether   the   employee   at   all   deserves   any

          salary   for   the   intervening   period   and   if   he

          does,   the   extent to   which  he  deserves   it.     Life

          being   complex,   it   is   not   possible   to   anticipate

          and          enumerate           exhaustively         all         the

          circumstances               under           which            such

          consideration   may   become   necessary.     To

          ignore,   however,   such   circumstances   when

          they exist and lay down an inflexible rule that

          in every case when an employee is exonerated

          in disciplinary/criminal proceedings he should

          be   entitled   to   all   salary   for   the   intervening

          period   is   to   undermine   discipline   in   the

          administration and jeopardize public interests.

          ...."    




It   will   be   clear   from   what   this   Court   has   held   in  Union   of



India & Ors. v. K.V. Jankiraman  & Ors. (supra) that even in



cases   where   acquittal   in   the   criminal   proceedings   is   on


                                     9




account   of   non-availability   of   evidence,   the   concerned



authorities must be vested with the power to decide whether



the   employee  at   all   deserves   any   salary   for   the   intervening



period,   and  if   he   does,   the   extent  to  which  deserves  it.     In



the aforesaid case, this Court has also held that this power



is   vested  in  the   competent   authority  with  a  view  to   ensure



that   discipline   in   administration   is   not   undermined   and



public interest is not jeopardized and it is not possible to lay



down   an   inflexible   rule   that   in   every   case   where   an



employee   is   exonerated   in   the   disciplinary/criminal



proceedings   he   should   be   entitled   to   all   salary   during   the



period   of   suspension   and   the   decision   has   to   be   taken   by



the competent authority  on the  facts  and circumstances of



each case.



10.       In the facts of the present case, the Deputy Director,



Anti-Corruption Bureau, C.I.U. and City Range Hyderabad,



had   reported   that   the   respondent   had   taken   Rs.2,000/-



from the complainant, M.R. Srinivas, for assessment of his



house and had accepted Rs.2000/- from him on 14.05.1997



at his house and that the bribe amount was recovered from



the possession of the  respondent and  that the  test  of right


                                    10




hand   fingers   and   shirt   pocket   of   respondent   was   positive



and that he was arrested and released on bail and on such



report,   the   respondent   was   placed   under   suspension   with



immediate effect by order dated 19.05.1997.  The trial court,



however, acquitted the respondent of the charges and in the



criminal   appeal   of   the   State,   the   High   Court   sustained   the



acquittal   of   the   respondent   and   dismissed   the   criminal



appeal.     The   reasons   for   sustaining   the   acquittal   of   the



respondent   given   by   the   High   Court   in   its   judgment   dated



06.12.2004 in the criminal appeal are quoted hereinbelow:





         "The   story   of   the   prosecution   is   that   the

         amount that was recovered from the pocket

         of   A.1   was   paid   by   PW.1   on   demand   made

         by   A.1   and   A.2   as   illegal   gratification   and

         was   accepted   by   A.1.     The   prosecution   in

         order   to   prove   the   guilt   of   the   respondents

         examined  PWs  1  to   8  and   marked  Exs.   P.1

         to P.13 and M.Os. 1 to 11.   The lower court

         after considering the evidence acquitted the

         respondents by holding that the prosecution

         failed   to   prove   that   the   amount   recovered

         from   A.1   was   taken   by   him   as   illegal

         gratification.  PWs1 and 2 made a complaint

         to   ACB   officials   complaining   that   A.1   and

         A.2   demanded   illegal   gratification   for

         reducing   the   property   tax   and   it   was

         accepted   by   them   when   tainted   notes   were

         given.     But   unfortunately,   PWs   1   and   2

         turned   hostile   and   did   not   support   the

         prosecution   version   that   they   paid   amount

         of   Rs.2,000/-   to   A.1   towards   illegal


                                     11




          gratification.     Though   the   recovery   of   the

          amount was proved by the prosecution, the

          purpose   for   which   the   amount   was   paid

          could   not   be   proved,   therefore,   the   lower

          court   rightly   came   to   a   conclusion   that

          there   is   a   doubt   whether   the   amount   that

          was   paid   to   A.1   was   towards   illegal

          gratification.     After   carefully   going   through

          the   evidence   adduced   by   the   prosecution

          and the findings of the lower court, I do not

          find any compelling reasons to interfere with

          the   judgment   of   the   lower   court   regarding

          the   acquittal   of   both   the   respondents.

          There   are   no   grounds   to   interfere   with   the

          judgment of the lower court."




Thus,   the   High   Court   found   that   PW-1,     who   made   the



complaint   that   the   respondent   had   demanded   illegal



gratification   for   reducing   the   property   tax,   turned   hostile



and   did   not   support   the   prosecution   version   that   he   had



paid   Rs.2,000/-   to   the   respondent   towards   illegal



gratification.   The High Court also held that the recovery of



the amount was proved by the prosecution, but the purpose



for   which   the   amount   was   paid   could   not   be   proved   and



therefore the trial court rightly came to the conclusion that



there   is   a   doubt   whether   the   amount   that   was  paid   to   the



respondent   was   towards   illegal   gratification.     On   these



materials,   the   competent   authority   has   formed   the   opinion



in   his   order   dated   17.11.2008   that   the   suspension   of   the


                                     12




respondent   cannot   be   regarded   as   wholly   unjustified   and



has   declined   to   grant   any   salary   and   allowance   to   the



respondent during the period of suspension.  This opinion of



the   competent   authority   was   a   possible   view   on   the



materials  which the competent  authority  could form  in the



facts and circumstances of the case while passing an order



in   exercise   of   his   powers   under   sub-rule   (3)   of   F.R.   54-B,



declining   to   allow   the   salary   and   allowances   of   the



respondent for the period of suspension.



11.      Yet, the Tribunal has found fault with the order dated



17.11.2008   of   the   competent   authority   and   has   held   that



the   suspension   of   the   respondent   was   unjustified.     The



reasons   given   by   the   Tribunal   in   its   order   are   that   the



prosecution has failed to prove the case beyond reasonable



doubt   about   the   demand   and   acceptance   of   the   bribe   and



the criminal court has acquitted the respondent and it was



open   for   the   authorities   to   proceed   against   the   respondent



departmentally, but no such departmental proceedings were



initiated   to   prove   the   misconduct   of   the   respondent.     The



approach   of   the   Tribunal,   in   our   considered   opinion,   was



not correct.  Sub-rule (3) of F.R. 54-B does not state that in


                                     13




case   of  acquittal   in  a  criminal   proceedings   the   employee  is



entitled   to   his   salary   and   allowances   for   the   period   of



suspension.     Sub-rule   (3)   of   F.R.   54-B   also   does   not   state



that   in   such   case   of   acquittal   the   employee   would   be



entitled   to   his   salary   and   allowances   for   the   period   of



suspension unless the charge of misconduct against him is



proved in the disciplinary proceedings.   Sub-rule (3) of F.R.



54-B   vests   power   in   the   competent   authority   to   order   that



the employee will be paid the full pay and allowances for the



period   of   suspension   if   he   is   of   the   opinion   that   the



suspension of the employee was wholly unjustified.   Hence,



even where the employee is acquitted of the charges in the



criminal trial for lack  of evidence  or otherwise, it  is  for  the



competent   authority   to   form   its   opinion   whether   the



suspension   of   the   employee   was   wholly   unjustified   and   so



long   as   such   opinion   of   the   competent   authority   was   a



possible view in the facts and circumstances of the case and



on the materials before him, such opinion of the competent



authority   would   not   be   interfered   by   the   Tribunal   or   the



Court.


                                         14




12.       In the result, we allow this appeal and set-aside the



order   of   the   Tribunal   and   the   impugned   order   of   the   High



Court   and   dismiss   the   original   application   filed   by   the



respondent before the Tribunal.   There shall be no order as



to costs.





                                                         ..........................J.

                                                               (R.V. Raveendran)





                                                         ..........................J.

                                                               (A. K. Patnaik)

New Delhi,

July 28, 2011.  

"Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand that right to get pension can be taken only if an order is passed under Regulations 3 or 16." 13. The aforesaid authorities would show that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory

                                                                 Reportable


                IN THE SUPREME COURT OF INDIA


                 CIVIL APPELLATE JURISDICTION


             CIVIL APPEAL NO. 6013 OF 2011        

           (Arising out S.L.P. (C) NO. 3777 OF 2007)


                                       

Sheelkumar Jain                                              ...... Appellant


                                   Versus



The New India Assurance Co. Ltd. & Ors.      ...... Respondents





                                 J U D G M E N T


A. K. PATNAIK, J.



      Leave granted.



2.    This   is   an   appeal   by   way   of   special   leave   against   the



order   dated   10.11.2006   of   the   Division   Bench   of   the   Madhya



Pradesh High Court, Indore Bench, in W.A. No.244 of 2006.



3.    The   brief   facts   of   this   case   are   that   on   01.07.1969   the



appellant was appointed as an Inspector in Liberty Insurance


                                       2



Company   Limited.     Under   the   General   Insurance   Business



(Nationalised) Act, 1972 (for short `the Act'), Liberty Insurance



Company   was   nationalized   and   merged   in   the   respondent



no.1-Company.     The services of the appellant were absorbed



in respondent No.1-Company and in September, 1984, he was



promoted as Assistant Administrative Officer and posted at the



Guna   Branch   as   Assistant   Branch   Manager.       In   the   year



1989,   he   was   transferred   to   Indore   and   posted   as   Assistant



Administrative Officer and thereafter as Divisional Accountant



and   in   1991   he   was   promoted   to   the   post   of   Administrative



Officer.  The appellant then served a letter dated 16.09.1991 to



the   General   Manager   of   respondent   No.1-   Company   at   the



Head  Office   of  the   company   at  Bombay   saying   that  he   would



like   to   resign   from   his   post   and   requesting   him   to   treat   the



letter   as   three   months'   notice   and   to   relieve   him   from   his



services.    The Assistant  Administrative  Officer,  Indore,  by   his



letter   dated   28.10.1991   informed   the   appellant   that   his



resignation has been accepted by the competent authority with



effect   from   16.12.1991,   i.e.   after   completion   of   three   months



notice.   Accordingly,   the   appellant   was   relieved   from   his


                                      3



services   on   16.12.1991.     Thereafter,   the   General   Insurance



(Employees')   Pension   Scheme,   1995   (for   short   `the   Pension



Scheme,   1995')   was   made   by   the   Central   Government   in



exercise   of   its   powers   under   Section   17-A   of   the   Act.     The



Pension Scheme, 1995 applied also to employees who were in



the   service   of   respondent   No.1-Company   on   or   after   first



January,   1986   but   had   retired   before   the   first   day   of



November, 1993 and exercised an option in writing within 120



days   from   the   notified   date   provided   he   refunded   within   the



specified   period   the   entire   amount   of   the   company's



contribution   to the provident fund including interest thereon



as well as the entire amount of non-refundable withdrawal, if



any,   made   from   the   company's   contribution   to   the   provident



fund   amount   and   interest   thereon.     On   20.10.1995,   the



appellant   submitted   an   application   to   the   respondent   No.1-



Company   opting   for   the   Pension   Scheme,   1995   and   gave   an



undertaking to refund to respondent No.1-Company the entire



amount   of   company's   contribution   to   his   provident   fund



account together with interest as well as the entire amount of



non-refundable   withdrawal,   if   any,   made   by   him   from


                                       4



company's   contribution   to   his   provident   fund   account   and



interest   thereon.     The   respondent   No.1-Company,   however,



intimated   the   appellant   by   letter   dated   25.10.1995   that   the



Pension  Scheme,   1995   was  not  applicable   to   those   who  have



resigned   from   the   respondent   No.1-Company   and   since   the



appellant has resigned, he will not be entitled for the Pensions



Scheme, 1995.



4.        The   appellant   then   filed   Writ   Petition   No.692   of   1996



before  the  Madhya  Pradesh  High  Court,  Indore  Bench,  which



was   dismissed   by   the   learned   Single   Judge   by   order   dated



15.02.2000.     Aggrieved,   the   appellant   initially   filed   Special



Leave   Petition   before   this   Court,   but   thereafter   withdrew   the



same   and   challenged   the   order   of   the   learned   Single   Judge



before the Division Bench of the Madhya Pradesh High Court



in   Writ   Appeal   No.224   of   2006.     The   Division   Bench   of   the



Madhya Pradesh High Court held in the impugned order that



under   Clause   22   of   the   Pension   Scheme,   1995,   resignation



entails forfeiture of the past services and as the appellant has



resigned   from   service,   even   if   he   had   worked   for   20   years   in



respondent   No.1-Company,   he   cannot   be   equated   with   an


                                      5



employee   who   had   taken   voluntary   retirement   from   service



under   Clause   30   of   the   Pension   Scheme,   1995   and   the



Pension   Scheme,   1995   did   not   apply   to   the   appellant   and



dismissed the Writ Appeal.



5.           Mr.   Sushil   Kumar   Jain,   learned   counsel   for   the



appellant,   submitted   that   the   High   Court   was   not   right   in



coming to the conclusion that the appellant had resigned from



service.     He   submitted   that   though   in   the   letter   dated



16.09.1991   to   the   General   Manager   of   the   respondent   no.1-



Company the appellant used the word `resigned', the letter was



actually   a   three   months'   notice   for   voluntary   retirement.     He



submitted   that   the   appellant   had   rendered   20   years   service



and   20   years   service   was   the   qualifying   service   for   voluntary



retirement under Clause 30 of the Pension Scheme, 1995.  He



submitted that since the appellant had rendered more than 20



years of service under the respondent  no.1-Company, he was



entitled to the pension and such pension should not be denied



to   him   by   saying   that   he   had   resigned   from   service   and   had



not   taken   voluntary   retirement.     He   further   submitted   that



Clause   22   of   the   Pension   Scheme,   1995   providing   that


                                       6



resignation  from  the  service of the respondent  no.1-Company



shall   entail   forfeiture   of   his   entire   past   service   and



consequently shall not qualify for pensionary benefits, was not



in   existence   when   the   appellant   submitted   his   letter   dated



16.09.1991   and   the   only   provision   that   was   in   force   was



Clause   5   of   the   General   Insurance   (Termination,



Superannuation   and   Retirement   of   Officers   and   Development



Staff)   Scheme,   1976,   (for   short   `the   Scheme   1976')   which



provided   that  an  officer  or  a  person  of  the   Development  Staff



shall not leave or discontinue his service without first giving a



three   months   notice   in   writing   to   the   appointing   authority   of



his intention to leave or discontinue the service.  He submitted



that   had   there   been   a   provision   similar   to   Clause   22   of   the



Pension   Scheme,   1995   in   the   Scheme,   1976,   he   would   not



have   used   the   word  `resigned'  in  his   letter   dated   19.06.1991.



He cited the decisions of this Court in  Sudhir Chandra Sarkar



v. Tata Iron and Steel Co. Ltd. & Ors. [AIR 1984 SC 1064], J.K.



Cotton   Spinning   and   Weaving   Mills   Company   Ltd.   v.  State   of



U. P. & Ors. [(1990) 4 SCC 27], Union of India & Ors. v. Lt. Col.



P.S.   Bhargava  [(1997)   2   SCC   28]   and  Sansar   Chand   Atri  v.


                                      7



State  of Punjab & Anr. [(2002) 4 SCC 154] to contend that the



resignation   of   the   appellant   actually   amounted   to   voluntary



retirement   in   the   facts   and   circumstances   of   the   case.     He



vehemently argued that it has been held in D.S. Nakara & Ors.



v.  Union   of   India  [(1983)   1   SCC   305]   and  Chairman,   Railway



Board   &   Ors.   v.  C.   R.   Rangadhamaiah   &   Ors.  [AIR   1997   SC



3828]  that  pension  is  neither   a  bounty   nor  a  matter   of  grace



but   is   a   payment   for   the   past   services   rendered   by   an



employee.     He   relied   on   the   decisions   of   this   Court   in  S.



Appukuttan  v.  Thundiyil   Janaki   Amma   &   Anr.   [(1988)   2   SCC



372], Vatan Mal v. Kailash Nath [(1989) 3 SCC 79], Employees'



State   Insurance   Corporation  v.  R.K.   Swamy   &   Ors.   [(1994)   1



SCC 445] and  Union of India & Anr. v.  Pradeep Kumari & Ors.



[(1995) 2 SCC 736] for the proposition that while interpreting a



statute   the   Court   must   have   regard   to   the   legislative   intent



and   should   not   take   a   narrow   or   restricted   view   which   will



defeat the beneficial purpose of the statute.



6.          Mr.   Balaji   Subramanian,   learned   counsel   for   the



respondents,   on   the   other   hand,   submitted   that   the   letter



dated  16.09.1991   of  the   appellant   to  the   General  Manager   of


                                       8



the   respondent   no.1-Company   used   the   word   `resigned'   and,



therefore, the appellant actually resigned from service and did



not   take   voluntary   retirement.     He   cited   a   decision   of   this



Court  in  UCO Bank  & Ors., etc. v.  Sanwar  Mal,  etc. [(2004) 4



SCC 412] in which this Court, while construing the UCO Bank



(Employees')   Pension   Regulations,   1995   which   had   similar



provisions,   held   that   the   words   `resignation'   and   `voluntary



retirement'   carry   different   meanings   and   an   employee,   who



has resigned from the service, was not entitled to pension.  He



also   relied   on   the   decision   of   this   Court   in  Reserve   Bank   of



India & Anr. v. Cecil Dennis Solomon & Anr. [(2004) 9 SCC 461]



in   which   this   Court,   while   construing   the   provisions   of   the



Reserve   Bank   of   India   Pension   Regulations,   1990,   has   held



that   in   service   jurisprudence,   the   expressions   "resignation"



and   "voluntary   retirement''   convey   different   connotations   and



a person who has resigned is not entitled to pension.  



7.        We   have   perused   the   decisions   of   this   Court   cited   by



learned counsel for the respondents.  In Reserve Bank of India



& Anr. v. Cecil Dennis Solomon & Anr. (supra) employees of the



Reserve Bank of India had tendered their resignations in 1988


                                      9



and were getting superannuation benefits under the provident



fund   contributory   provisions   and   gratuity   schemes.



Subsequently, the Reserve Bank of India Pension Regulations,



1990   were   framed.     The   employees   who   had   tendered



resignations   in   1988   claimed   that   they   were   entitled   to



pension under these new Pension Regulations and moved the



Bombay High Court for relief and the High Court held that the



Reserve   Bank   of   India   was   legally   bound   to   grant   pension   to



such   employees.     The   Reserve   Bank   of   India   challenged   the



decision of the Bombay High Court before this Court and this



Court   held   that   as   the   employees   had   tendered   resignation



which   was   different   from   voluntary   retirement,   they   were   not



entitled to pension under the Pension Regulations.   Similarly,



in  UCO Bank  &  Ors., etc.  v.  Sanwar  Mal, etc.  (supra)   Sanwar



Mal,   who   was   initially   appointed   in   the   UCO   Bank   on



29.12.1959   and   was   thereafter   promoted   to   Class   III   post   in



1980, resigned from the service of the UCO Bank after giving



one month's notice on 25.02.1988.  Thereafter, the UCO Bank



(Employees')   Pension   Regulations,   1995   were   framed   and



Sanwar   Mal   opted   for   the   pension   scheme   under   these


                                       10



regulations.     The   UCO   Bank   declined   to   accept   his   option   to



admit him  into the  pension  scheme.   Sanwar Mal  filed a suit



for   a   declaration   that   he   was   entitled   to   pension   under   the



Pension Regulations and for a mandatory injunction directing



the UCO Bank to make payment of arrears of pensions along



with   interest.     The   suit   was   decreed   and   the   decree   was



affirmed   in   first   appeal   and   thereafter   by   the   High   Court   in



second appeal.  The UCO Bank carried an appeal to this Court



and   this   Court   differentiated   "resignation"   from   "voluntary



retirement" and allowed the appeal and set aside the judgment



of the High Court.  In these two decisions, the Courts were not



called   upon   to   decide   whether   the   termination   of   services   of



the   employee   was   by   way   of   resignation   or   voluntary



retirement.       In   this   case,   on   the   other   hand,   we   are   called



upon   to   decide   the   issue   whether   the   termination   of   the



services   of   the   appellant   in   1991   amounted   to   resignation   or



voluntary retirement.



8.       For deciding this issue, we have to look at the Clause 5



of the Scheme, 1976 made under Section 10 of the Act under



which   the   services   of   the   appellant   were   terminated   after   he


                                       11



submitted his letter dated 16.09.1991 to the General Manager



of   respondent   No.1-   Company   saying   that   he   would   like   to



resign from his post and requesting him to treat the letter as



three   months'   notice   and   to   relieve   him   from   his   services.



Clause 5 of the Scheme, 1976 is quoted hereinbelow:




         "5. Determination of Service:



         (1) An officer or a person of the Development

         Staff, other than one on probation shall not

         leave or discontinue his service without first

         giving in writing to the appointing authority

         of   his   intention   to   leave   or   discontinue   the

         service   and   the  period  of   notice   required  to

         be given shall be three months;



         Provided that such notice may be waived in

         part or in full by appointing authority at its

         discretion.



         Explanation I - In this Scheme, month shall

         be   reckoned   according   to   the   English

         Calendar and shall commence from the day

         following   that   on   which   the   notice   is

         received   by   the   Corporation   or   the

         Company, as the case may be.



         Explanation II - A notice given by an officer

         or a person of the Development Staff under

         this paragraph shall be deemed to be proper

         only if he remains on duty during the period

         of   notice   and   such   officer   or   person   shall

         not   be   entitled   to   set   off   any   leave   earned

         against the period of such notice.


                                      12





         (2)   In   case   of   breach   by   an   officer   or   a

         person   of   the   Development   Staff   of   the

         provisions of sub-paragraph (1), he shall be

         liable   to   pay   to   the   Corporation   or   the

         Company concerned, as the case may be, as

         compensation a sum equal to his salary for

         the   period   of   notice   required   of   him   which

         sum may be deducted from any monies due

         to him."




It will be clear from the language of sub-clause (1) of Clause 5



of   the   Scheme,   1976   that   an   officer   or   a   person   of   the



Development Staff could leave or discontinue his services after



giving in writing to the appointing authority of his intention to



leave   or   discontinue   of   the   services   and   the   period   of   such



notice   required   to   be   given   was   three   months.     It   is   in



accordance   with   this   statutory   provision   that   the   appellant



submitted his letter dated 16.09.1991 to the General Manager



of   respondent   No.1-Company   saying   that   he   would   like   to



resign from his post and requesting him to treat the letter as



three months' notice and to relieve him from his services and



it   is   in   accordance   with   this   statutory   provision   that   the



competent authority accepted his resignation with effect from



16.12.1991, i.e. after completion of three months' notice.  Sub-


                                        13



clause   (1)   of   Clause   5   does   not   state   that   the   termination   of



service pursuant to the notice given by an officer or a person



of   the   Development   Staff   to   leave   or   discontinue   his   service



amounts   to   "resignation"   nor   does   it   state   that   such



termination   of   service   of   an   officer   or   a   person   of   the



Development Staff on his serving notice  in writing  to leave or



discontinue   in   service   amounts   to   "voluntary   retirement".



Sub-clause   (1)   of   Clause   5   does   not   also   make   a   distinction



between   "resignation"   and   "voluntary   retirement"   and   it   only



provides  that an employee  who wants to  leave or discontinue



his   service   has   to   serve   a   notice   of   three   months   to   the



appointing   authority.     We   also   notice   that   sub-clause   (1)   of



Clause 5 does not require that the appointing authority must



accept the request of an officer or a person of the Development



Staff to leave or discontinue his service but in the facts of the



present case, the request of the appellant to relieve him from



his   service   after   three   months'   notice   was   accepted   by   the



competent   authority   and   such   acceptance   was   conveyed   by



the   letter   dated   28.10.1991   of   the   Assistant   Administrative



Officer, Indore.


                                     14



9.       We may now look at Clauses 22 and 30 of the Pension



Scheme, 1995 which are quoted hereinbelow:




       "22.      Forfeiture   of   Service:   Resignation   or

       dismissal   or   removal   or   termination   or

       compulsory   retirement   or   an   employee   from   the

       service   of   the   Corporation   or   a   Company   shall

       entail   forfeiture   of   his   entire   past   service   and

       consequently   shall   not   qualify   for   pensionary

       benefits.




       30.  Pension   on   Voluntary   Retirement:   (1)   At

       any time after an employee has completed twenty

       years   of   qualifying   service,   he   may,   by   giving

       notice of not less than ninety  days, in writing to

       the appointing authority, retire from service:



       Provided that this sub-paragraph shall not apply

       to an employee who is on deputation unless after

       having   been   transferred   or   having   returned   to

       India he has resumed charge of the post in India

       and has served for a period of not less than one

       year:



       Provided   further   that   this   sub-paragraph   shall

       not   apply   to   an   employee   who   seeks   retirement

       from   service   for   being   absorbed   permanently   in

       an   autonomous   body   or   a   public   sector

       undertaking  to  which he is  on deputation at the

       time of seeking voluntary retirement.



       (2) The notice of voluntary retirement given under

       sub-paragraph (1) shall require acceptance by the

       appointing authority:


                              15



Provided   that   where   the   appointing   authority

does   not   refuse   to   grant   the   permission   for

retirement   before   the   expiry   of   the   period

specified   in   the   said   notice,   the   retirement   shall

become   effective   from   the   date   of   expiry   of   the

said period.



(3)(a)   An   employee   referred   to   in   sub-paragraph

(1)   may   make   a   request   in   writing   to   the

appointing authority to accept notice of voluntary

retirement of less than ninety days giving reasons

therefor;



(b)   on   receipt   of   request   under   clause   (a),   the

appointing   authority   may,   subject   to   the

provisions   of   sub-paragraph   (2),   consider   such

request for the curtailment of the period of notice

of ninety days on merits and if it is satisfied that

the   curtailment   of   the   period   of   notice   will   not

cause   any   administrative   inconvenience,   the

appointing   authority   may   relax   the   requirement

of notice of ninety days on the condition that the

employee   shall   not   apply   for   commutation   of   a

part of his pension before the expiry of the notice

of ninety days.



(4)   An   employee   who   has   elected   to   retire   under

this paragraph and has given necessary notice to

that   effect   to   the   appointing   authority   shall   be

precluded   from   withdrawing   his   notice   except

with the specific approval of such authority:



Provided   that   the   request   for   such   withdrawal

shall   be   made   before   the   intended   date   of   his

retirement.



(5) The qualifying service of an employee retiring

voluntarily   under   this   paragraph   shall   be

increased   by   a   period   not   exceeding   five   years,


                                       16



        subject   to   the   condition   that   the   total   qualifying

        service   rendered   by   such   employee   shall   not   in

        any case exceed thirty three years and it does not

        take him beyond the date of retirement.



        (6) The pension of an employee retiring under this

        paragraph   shall   be   based   on   the   average

        emoluments   as   defined   under   clause   (d)   of

        paragraph 2 of this scheme and the increase, not

        exceeding   five   years   in   his   qualifying   service,

        shall   not  entitled   him  to   any  notional   fixation   of

        pay for the purpose of calculating his pension;


        Explanation: For the purpose of this paragraph,

        the   appointing   authority   shall   be   the   appointing

        authority specified in Appendix-I to this scheme."




10.        The   Pension   Scheme,   1995   was   framed   and   notified



only   in   1995   and   yet   the   Pension   Scheme,   1995   was   made



applicable   also   to   employees   who   had   left   the   services   of   the



respondent No.1-Company before 1995.  Clauses 22 and 30 of



the Pension Scheme, 1995 quoted above were not in existence



when   the   appellant   submitted   his   letter   dated   16.09.1991   to



the   General   Manager   of   respondent   No.1-Company.     Hence,



when   the   appellant   served  his   letter   dated   16.09.1991   to   the



General   Manager   of   respondent   No.1-   Company,   he   had   no



knowledge of the difference between `resignation' under Clause



22 and `voluntary retirement' under Clause 30 of the Pension


                                      17



Scheme,   1995.     Similarly,   the   respondent   No.1-Company



employer   had   no   knowledge   of   the   difference   between



`resignation' and `voluntary retirement' under Clauses 22 and



33   of   the   Pension   Scheme,   1995   respectively.     Both   the



appellant   and   the   respondent   No.1   have   acted   in   accordance



with   the   provisions   of   sub-clause   (1)   of   Clause   5   of   the



Scheme,   1976   at   the   time   of   determination   of   service   of   the



appellant   in  the   year   1991.     It  is   in  this  background   that we



have now to decide whether the determination of service of the



appellant     under   sub-clause   (1)   of   Clause   5   of   the   Scheme,



1976   amounts   to   resignation   in   terms   of   Clause   22   of   the



Pension Scheme, 1995 or amounts to voluntary retirement in



terms of Clause 30 of the Pension Scheme, 1995.  Clause 22 of



the   Pension   Scheme,   1995   states   that   resignation   of   an



employee   from   the   service   of   the   Corporation   or   a   Company



shall   entail   forfeiture   of   his   entire   past   service   and



consequently   shall   not   qualify   for   pensionary   benefits,   but



does not define the term "resignation".  Under sub-clause (1) of



Clause 30 of the Pension Scheme, 1995, an employee, who has



completed 20 years of qualifying service, may by giving notice


                                        18



of not less than 90 days in writing to the appointing authority



retire   from   service   and   under   sub-clause   (2)   of   Clause   30   of



the Pension Scheme, 1995, the notice of voluntary retirement



shall   require   acceptance   by   the   appointing   authority.     Since



`voluntary   retirement'   unlike   `resignation'   does   not   entail



forfeiture of past services and instead qualifies for pension, an



employee   to   whom   Clause   30   of   the   Pension   Scheme,   1995



applies cannot be said to have `resigned' from service.   In the



facts   of   the   present   case,   we   find   that   the   appellant   had



completed 20 years qualifying service and had given notice of



not less than 90 days in writing to the appointing authority of



his intention to leave service and the appointing authority had



accepted notice of the appellant and relieved him from service.



Hence, Clause 30 of the Pension Scheme, 1995 applied to the



appellant   even   though   in   his   letter   dated   16.09.1991   to   the



General   Manager   of   respondent   no.1-Company   he   had   used



the word `resign'.



11.          We   may   now   cite   the   authorities   in   support   of   our



aforesaid   conclusion.     In  Sudhir   Chandra   Sarkar  v.  Tata   Iron



and   Steel   Co.   Ltd.   &   Ors.   (supra),     the   plaintiff   had   rendered


                                      19



continuous service under the respondent from 31.12.1929 till



31.08.1959,   i.e.   for   20  years   and  8  months.    He  submitted   a



letter of resignation dated 27.07.1959 and his resignation was



accepted by the respondent by letter dated 26.08.1959 and he



was released from his service with effect from 01.09.1959.  On



these facts, a three-Judge Bench of this Court held:





       "The termination of service was thus on account of

       resignation   of   the   plaintiff   being   accepted   by   the

       respondent.   The plaintiff has, within the meaning

       of  the  expression,  thus  retired  from   service  of  the

       respondent   and   he   is   qualified   for   payment   of

       gratuity in terms of Rule 6."




12.      In Union of India & Ors. v. Lt. Col. P.S. Bhargava (supra),



respondent   joined   the   Army   Dental   Corps   in   1960   and



thereafter   he   served   in   various   capacities   as   a   specialist   and



on   02.01.1984   he   wrote   a   letter   requesting   for   permission   to



resign   from   service   with   effect   from   30.04.1984   or   from   an



early date.  His resignation was accepted by a communication



dated   24.07.1984   and   he   was   released   from   service   and   he



was   also   informed   that   he   shall   not   be   entitled   to   gratuity,



pension, leave pending resignation and travel concession.   On


                                     20



receipt of this letter, he wrote another letter dated 18.08.1984



stating that he was not interested in leaving the service.   This



was followed by another letter dated 22.08.1984 praying to the



authority   to   cancel   the   permission   to   resign.     These   letters



were   written   by   the   respondent   because   he   realized   that   he



would   be   deprived   of   his   pension,   gratuity,   etc.   as   a



consequence   of   his   resignation.     These   subsequent   letters



dated 18.08.1984 and  22.08.1984 were  not accepted  and the



respondent   was   struck   off   from   the   rolls   of   the   Army   on



24.08.1984.  On these facts, the Court held:




         "Once   an   officer   has   to   his   credit   the

         minimum   period   of   qualifying   service,   he

         earns   a   right   to   get   pension   and   as   the

         Regulations   stand   that   right   to   get   pension

         can be taken only if an order is passed under

         Regulations 3 or 16."



         

13.           The  aforesaid  authorities  would  show  that  the  Court



will have to construe the statutory provisions in each case to



find out whether the termination of service of an employee was



a termination by way of resignation or a termination by way of



voluntary   retirement   and   while   construing   the   statutory


                                         21



provisions, the Court will have to keep in mind the purposes of



the statutory provisions.    The general purpose of the Pension



Scheme, 1995, read as a whole, is to grant pensionary benefits



to   employees,   who   had   rendered   service   in   the   Insurance



Companies   and   had   retired   after   putting   in   the   qualifying



service in the Insurance Companies.  Clauses 22 and 30 of the



Pension Scheme, 1995 cannot be so construed as to deprive of



an employee of an Insurance Company, such as the appellant,



who had put in the qualifying service for pension and who had



voluntarily given up his service after serving 90 days notice in



accordance   with   sub-clause   (1)   of   Clause   5   of   the   Scheme,



1976   and   after   his   notice   was   accepted   by   the   appointing



authority.



14.        In   the   result,   we   set   aside   the   orders   of   the   Division



Bench   of   the   High   Court   in   the   Writ   Appeal   as   well   as   the



learned Single Judge and allow this appeal as well as the Writ



Petition   filed   by   the   appellant   and   direct   the   respondents   to



consider the claim of the appellant for pension in accordance



with   the   Pension   Scheme,   1995   and   intimate   the   decision   to


                                           22



the appellant within three months from today.   There shall be



no order as to costs.                                





                                                             ..........................J.

                                                                  (R. V. Raveendran)





                                                             ..........................J.

                                                                  (A. K. Patnaik)

New Delhi,

July 28, 2011.  

except in exceptional cases having sufficient evidence, no court should order go beyond the scope of the case =It is not in dispute that the only question before the learned single Judge was related to the demand notice issued by the Board. No doubt, the petitioner therein has made certain statements against the officials of the Board, however, there is no specific complaint either by the writ petitioner or anyone pointing mismanagement in the affairs of the Board. If there is any specific complaint giving all the details, undoubtedly, the Court can forward it to the forum concerned for investigation and further action pursuant to the outcome of the same. Merely on the basis of certain observations in the orders of the High Court in other matters which were either set aside or modified or not applicable to the case on hand, the learned single Judge was not justified in issuing directions for Vigilance inquiry. The direction also proceeds as if that the officials of the Board benefited with the huge amount without basing reliable and acceptable materials. Normally, the 11

                                                            REPORTABLE


                IN THE SUPREME COURT OF INDIA


                 CIVIL APPELLATE JURISDICTION


                CIVIL APPEAL NO. 5779  OF 2008




Bihar State Housing Board & Ors.                           .... Appellant (s)



             Versus



Asha Lata Verma                                         .... Respondent(s)





                            J U D G M E N T




P. Sathasivam, J.


1)    This   appeal   is   directed   against   the   final   judgment   and



order   dated   02.07.2008   passed   by   the   High   Court   of



Judicature   at   Patna   in   L.P.A.   No.   211   of   2008   whereby   the



Division Bench of the High Court declined to interfere with the



order dated 07.02.2008 passed by the learned single Judge of



the   High   Court   in   CWJC   No.   11753   of   2007   and   disposed   of



the appeal filed by the appellants herein.





2)    Brief facts:




                                                                            1


(a)    In   1972,   the   Bihar   State   Housing   Board   (hereinafter



referred to as "the Board") floated a Scheme for construction of



Flats   for   Middle   Income   Group   (in   short   "MIG")   at   Hanuman



Nagar, Patna.       Ram Chandra Prasad   Verma (since expired)



-the   husband   of   the   respondent   submitted   his   application.



Subsequently,   on   demand   being   made,   on   28.09.1978,   he



deposited   a   sum   of   Rs.6500/-   for   allotment   of   a   MIG



flat/house.  The allotment fructified in his favour and MIG Flat



No.   171,   Hanuman   Nagar,   Patna   was   allotted   to   him   vide



Board's Order No. 7273 dated 23.09.1981.   After execution of



hire-purchase   agreement,  the   possession   was   handed   over   to



him   on   28.11.1981.     At   that   time,   the   total   cost   of   the   flat



determined by the Board was Rs.66,382/-.  The entire amount



was paid to the Board within the time prescribed.



(b)     On 25.03.1991, the husband of the respondent died and



in   the   year   1992,   she   sought   for   transfer   of   the   Flat   in   her



name.  The flat was transferred in the name of the respondent



after   furnishing   the   details   of   payment   and   other   required



documents   to   the   Board   vide   letter   No.   1459   dated



05.05.1998.




                                                                                 2


(c)    Later   on,   the   respondent   decided   to   transfer   the   flat   in



favour   of   her   daughter-in-law,   Ms.   Meera   Verma   and   sought



transfer of the same.  At this time, the Board raised a demand



of Rs. 3,64,419/- towards outstanding dues against the flat in



question   vide   Letter   No.   2169   dated   29.06.2006,   asking   the



respondent to deposit the same by 31.07.2006.



(d)    Against the said demand notice, the respondent filed writ



petition   bearing   CWJC   No.   11753   of   2007   before   the   High



Court of Patna for quashing the same on the ground that the



payment   of   the   flat   had   already   been   made   in   144   equal



instalments and that the Board is not justified in raising such



demand and not entitled to re-determination/re-fixation of the



price after delivery of possession.  The learned single Judge, by



order dated 07.02.2008, allowed the writ petition and quashed



the demand notice and directed the Board to grant permission



for transfer of the flat in favour of Ms. Meera Verma, daughter-



in-law of the respondent herein.  The learned single Judge also



directed  the  Additional   Director  General  of  Vigilance,   State  of



Bihar to institute a case against the Board and to enquire into



the activities of the officials involved in the process of decision




                                                                              3


making   and   also   to   initiate   enquiry   into   the   assets   and



properties of such officials of the Board.



(e)    Against   the   said   order   of   the   learned   single   Judge,   the



Board   filed   appeal   being   L.P.A.   No.   211   of   2008   before   the



Division   Bench   of   the   High   Court.     The   Division   Bench,   by



impugned   order   dated   02.07.2008,   declined   to   interfere   with



the  order  passed  by  the  learned single  Judge  disposed   of  the



appeal filed by the appellants herein.   Aggrieved by the same,



the Board preferred this appeal by way of special leave petition



before this Court.




3)     Heard   Mr.   S.   Chandra   Shekhar,   learned   counsel   for   the



appellants-Board and Mr. Praneet Ranjan, learned counsel for



the respondent.



 4)    Since   the   learned   single   Judge   of   the   High   Court   while



allowing the writ petition filed by the respondent expressed his



anguish over the manner in which the Board and its officials



are   conducting   its   affairs,   issued   certain   directions   for



Vigilance   inquiry,   the   Board   being   aggrieved   by   the   said



directions   filed   an   appeal   before   the   Division   Bench.   The





                                                                             4


Division   Bench,   by   impugned   order   dated   02.07.2008,   after



observing   that   since   the   Vigilance   Department   has   already



started preliminary inquiry, declined to interfere with the order



passed by the learned single Judge.   The Board is very much



aggrieved   by   the   directions   of   the   learned   single   Judge



directing   Additional   Director   General   of   Vigilance,   State   of



Bihar to institute a case against the Board and to enquire into



the   activities   of   all   persons   who   are   involved   in   the   decision



making   process   as   well   as   who   have   been   responsible   in



creating   false   accounts   and   raising   false   demands   in   relation



to the writ petitioner, namely, Asha Lata Verma.   In the same



order,   the   learned   single   Judge   also   directed   that   an   inquiry



into the assets and properties of such officials of the Board be



carried out to see whether they have been benefited at the cost



of innocent citizens.



5)    Before   considering   the   directions   of   the   learned   single



Judge   asking   the   Additional   Director   General   of   Vigilance,



State of Bihar to enquire into the conduct of the officials of the



Board,   we   have   to   see   the   grievance   of   the   respondent.     The





                                                                               5


grievance of the respondent is that even though entire money



for MIG flat bought by her husband in the year 1981 was paid



yet the officials of the Board acting in most arbitrary manner



have   raised   huge   demand.     By   various   orders   of   the   High



Court,   ultimately   the   Board   transferred   the   ownership   of   the



flat in question in favour of daughter-in-law of the respondent.



Though   the   counsel   appearing   for   the   Board   has   stated   that



the Board was justified in demanding an additional amount, in



the   absence   of   such   details   and   in   view   of   the   fact   that   now



the Board has transferred the title of the flat in favour of the



daughter-in-law   of   the   respondent,   as   requested,   we   are   not



inclined to go into the claim of the Board.



6)     Let   us   consider   the   directions   issued   by   the   learned



single   Judge   in   the   foregoing   paragraphs.   The   learned   single



Judge having noticed that the cost of the flat as determined by



the   Board   was   paid   by   the   allotee,   after   the   death   of   the



original   allottee,   his   wife   -   respondent   herein   applied   for



transferring   the   flat   in   her   name,   at   this   stage,   the   Board



officials   required   her   to   furnish   proof   of   payments   and   other



documents   which   were   duly   furnished   by   her,   thereafter



                                                                                 6


permission   was   granted   for   transfer   of   the   flat   in   her   name,



ultimately,   on   a   request   being   made   by   the   respondent   for



transferring  the  said  flat  in the  name of  her   daughter-in-law,



the officials of the Board calculated  huge amount showing as



outstanding   and   with   this   background,   the   learned   single



Judge   examined   the   claim   of   the   writ   petitioner   and



considered the   stand  of  the   Board.     It is   the   grievance  of  the



Board   that   whether   in   a   writ   proceeding   where   the   writ



petitioner challenged the demand notice issued by the Board,



the writ Court could have gone beyond the relief sought by the



petitioner and ordered an inquiry by the Vigilance Department



after registering FIR?  It is also the grievance of the Board that



whether   in   a  writ   proceeding,   the   learned   single   Judge   could



have   ordered   registration   of   FIR   without   there   being   an



allegation of any offence committed by anyone and whether in



the absence of any specific allegation, the learned single Judge



is justified in ordering a roving inquiry?





                                                                             7


7)     The learned single Judge took note of many findings and



observations of the  High Court  in several similar  cases.   It is



important to mention here that the learned single Judge while



passing   the   order   dated   07.02.2008   placed   reliance   on   the



following   judgments,   viz.,  Smt.   Meera   Mishra  vs.  State   of


Bihar  2001   (3)   PLJR   809,  Sanjeev   Kumar   Singh  vs.


Managing   Director  2003   (2)   PLJR   513   and  Sita   Devi  vs.


Bihar   State   Housing   Board  2007   (1)   PLJR   246.     It   was


pointed   out   that   these   matters   were   either   set   aside   or



modified   or   not   applicable   to   the   case   on   hand.    In   those



observations,   the   High   Court   has   indicted   the   Board   for   its



mismanaged   affairs   and   the   manner   in   which   it   was



conducting   its   functioning.                 Heavily   relying   on   those



observations and findings, the learned  single Judge held that



the   demand   notice   was   totally   unjustified   and,   therefore,   it



was quashed and the Board was directed to issue permission



to   the   writ   petitioner   for   transfer   of   the   flat   in   favour   of   her



daughter-in-law.  Having noticed the conduct of the Board, the



learned   single   Judge   felt   that   its   functionaries   should   be



subjected   to   an   investigation   by   the   State   Vigilance   and




                                                                                     8


accordingly   a   direction   was   issued   to   the   Additional   Director



General of Vigilance, State of Bihar to institute a case against



the   Board   and   inquire   into   the   activities   of   all   persons   who



were   involved   in   the   decision   making   process   as   well   as   who



have   been   responsible   in   creating   false   accounts   and   raising



false   demands.     The   learned   single   Judge   also   directed   to



enquire  into  the   assets  and properties   of  such  officials   of  the



Board.



8)     It   is   seen   from   the   additional   documents   filed   by   the



Board that based on the direction of the learned single Judge,



Additional Director General Vigilance had sought opinion from



the   Advocate   General.     By   letter   dated   19.07.2008,   after



verifying   the   relief   sought   for   by   the   writ   petitioner   and   after



analyzing   the   directions   of   the   learned   single   Judge   and   the



materials   placed   by   the   investigation   team,   the   Advocate



General has opined that the materials, which are collected so



far   during   preliminary   inquiry   and   placed   on   record   do   not



constitute any prima facie criminal offence against the officials



of   the   Board   so   as   to   warrant   institution   of   a   regular   case.



The said report was placed before the learned single Judge by



                                                                                 9


the Superintendent of Police, Vigilance, on 03.05.2010.   After



going through the report of the Vigilance Department and the



opinion   of   the   Advocate   General,   the   learned   single   Judge



directed the Vigilance Department to spend more time on the



investigation   and   file   a   report   on   the   issue   since   the   earlier



report was not up to the expectation of the Court.



9)    It is not in dispute that even as early as on 07.02.2008,



the   learned   single   Judge   disposed   of   the   writ   petition   by



allowing   the   same   and   granted   relief   to   the   respondent   and



ordered   for   Vigilance   inquiry   against   the   Board   and   its



officials.  Thereafter, even though the L.P.A. filed by the Board



against   the   order   of   the   learned   single   Judge   was   also



disposed   of   by   the   Division   Bench,   it   is   not   clear   and



understandable   how   the   matter   was   heard   by   the   learned



single Judge then and there. Even after perusing the report of



the Vigilance Department based on the opinion of the Advocate



General,   the   learned   single   Judge   passed   further   order   on



03.05.2010   and   again   directed   the   Vigilance   Department   to



submit   further   report.     It   is   the   grievance   of   the   Board   that



inasmuch   as   the   writ   petitioner   has   secured   an   appropriate



                                                                               10


relief   and   in   the   absence   of   any   specific   claim/complaint



furnished  with required  details, the learned  single Judge was



not   justified   in   directing   the   Vigilance   Department   for   roving



inquiry into the affairs of the Board.



10)    It   is   not   in   dispute   that   the   only   question   before   the



learned single Judge was related to the demand notice issued



by   the   Board.     No   doubt,   the   petitioner   therein   has   made



certain statements against the officials of the Board, however,



there   is   no   specific   complaint   either   by   the   writ   petitioner   or



anyone pointing mismanagement in the affairs of the Board.  If



there   is   any   specific   complaint   giving   all   the   details,



undoubtedly, the Court can forward it to the forum concerned



for investigation and further action pursuant to the outcome of



the same.   Merely  on the basis  of  certain  observations  in the



orders   of   the   High   Court   in   other   matters   which   were   either



set aside or modified or not applicable to the case on hand, the



learned single Judge was not justified in issuing directions for



Vigilance   inquiry.     The   direction   also   proceeds   as   if   that   the



officials of the Board benefited with the huge amount without



basing   reliable   and   acceptable   materials.     Normally,   the




                                                                                11


function of the Court is to sort out the dispute raised and only



in   exceptional   cases   that   too   when   adequate   materials   are



there such inquiry can be ordered but not on the basis of the



general information, assumption or presumption.   Apart from



this,   after   disposal   of   the   writ   petition   as   early   as   on



07.02.2008,   how   the   learned   single   Judge   assumed



jurisdiction and issued several directions in the matter.




11)  In the  light  of  the   above  discussion,  we  are  satisfied  that



the   direction   relating   to   inquiry   by   the   Vigilance   Department



and   subsequent   orders   and   directions   by   the   learned   single



Judge cannot be sustained.  While confirming the order of the



learned   single   Judge   relating   to   the   relief   granted   to   the



respondent,   all   other   directions   relating   to   the   Board   and   its



officials are set aside.  However, it is made clear that if there is



any   specific   complaint   with   facts   and   figures   against   any   of



the officer of the Board, it is for the person concerned to move



the appropriate prosecuting agency and if any such complaint



is made, the agency is free to proceed in accordance with law.





                                                                             12


12)  The civil appeal is allowed to the extent mentioned above.



There shall be no order as to costs.





                                 ..........................................J.

                                      (P. SATHASIVAM)




                                ..........................................J.

                                   (H.L. GOKHALE)


NEW DELHI;

JULY 28, 2011.  

 





                                                             13