JUDGMENT

Nanavati, J.-Himachal Pradesh Horticulatural Produce Marketing & Processing Corporation Ltd. (for short HPMC) has filed this appeal against the order passed by the Himachal Pradesh Administrative Tribunal in O.A. No. 74 of 1993.

2. The respondent was an employee of HPMC. On 1.5.1990 he applied for long leave but was allowed to remain on leave till 30.11.1990 only. On 26.11.1990 he applied for voluntary retirement effective from 30.11.1990 and also requested for waiver of notice period of three months. Without ascertaining what happened to his request he did not report for duty on 1.12.1990 and continued to remain absent thereafter. Earlier on 12.12.1989 a chargesheet was issued against him for certain acts of misconduct. On 26.12.1989 he filed a reply to the said chargesheet. Again on 27.8.1992 and 18.9.1992 he was served with two more chargesheets. While the chargesheet dated 27.8.1992 was in respect to his unauthorised absence from 1.12.1990 the other was in respect of his acts of misconduct. Thereupon, on 30.9.1992 he approached the Tribunal challenging the two memos dated 27.8.1992 and 18.9.1992 whereby departmental enquiries were proposed to be conducted against him and also the order dated 28.6.1991 whereby Rs. 28,214/- were sought to be recovered from him.

3. The contention of the respondent before the Tribunal was that as no action was taken by the HPMC on his request for retirement he stood retired with effect from 26.2.1991, on expiry of three months from the date of the notice and, therefore, no enquiry could be held against him thereafter. The Tribunal, while interpreting clause 3.8 of the Himachal Pradesh Horticultural Produce Marketing and Processing Corporation Ltd. - Employees Service Bye-laws, which provides for superannuation and retirement, held that the decisions in Dinesh Chandra Sangma v. State of Assam and others1 and Union of India v. Harendralal Bhattacharya2, Ramchandra v. The State of A.P.3 wherein it has been held that the Government servant has a right to voluntarily retire from service by giving three months notice in writing and that there is no question of acceptance of such request by the Government and that the Government has no power to withhold permission to retire were applicable. It further held that under the rule the HPMC has a privilege to exercise its option to accept or not the request of the employee for pre-mature retirement but that option has to be exercised within the prescribed limit of three months. It also held that as the HPMC did not take amy decision on the application of the respondent within three months he stood retired with effect from 26.2.1991. The Tribunal, therefore, quashed the two memos dated 27.8.1992 and 18.9.1992 and directed HPMC that it cannot hold any enquiry against the respondent. The order dated 28.6.1991 passed for recovery of Rs. 28,214/- was also quashed. It also directed HPMC to give all the retiral benefits due and admissible to the respondent within a period of three months. Aggrieved by this order of the Tribunal HPMC has approached this Court.

4. What is contended by the learned counsel for the appellant is that the Tribunal has not correctly interpreted para (5) of Bye-law 3.8 and committed an error in holding that HPMC has to exercise its option of accepting or rejecting the request of the employee within three months from the date of the notice for premature retirement.

5. On reading the judgment of the Tribunal we find that it first referred to the said three decisions and then observed : "The ratio of the aforementioned judgments is applicable to the present case." That would mean that the Tribunal has, though not in specific terms, held that the employee of HPMC has a right to retire from service by giving three months notice in writing and there is no question of acceptance of such request by HPMC. In our opinion, the view taken by the Tribunal is not correct.

6. In Dinesh Chandra Sangma s case (supra) this Court, interpreting FR 56 (c