Important Point
Where as per Government Rules on notice for voluntary retirement, concerned authority is required to pass positive order either granting or refusing permission but no such order is passed, on the expiry of notice period voluntary retirement would become automatic.

Headnote:Service Law-Voluntary retirement-Punjab Civil Service Rules (Vol. II) Rule 5.32B(2)-Respondent having put in 20 years of service gave three months notice, as required by rules, intending to retire voluntarily-No response from concerned authorities till expiry of three months notice period -Whether retirement automatic on expiration of three months-Held, yes by virtue of proviso to sub-clause (2) to Rule 5.32B.
       Held : Under Rule 5.32 B, a government employee who has completed 20 years of qualifying service may, by giving notice of not less than 3 months in writing to the appointing authority, retire from service. There is provision for requesting for relaxation of the notice period of 3 months and for consideration thereof. As to what the appointing authority is to do is governed squarely by sub-clause (2). That sub-clause states that the notice of voluntary retirement given under sub-clause (1) “shall” require acceptance by the appointing authority subject to Rule 2.2 of the Punjab Civil Service Regulation (Vol. II). Acceptance of the request is subject to Rule 2.2 of the Rules. But the proviso to sub-clause (2) of Rule 5.32B states that if the permission to retire is not refused within the period specified in sub-clause (1), the retirement shall become effective from the date of expiry of the period. Therefore, it is clear that if a person has completed 20 years qualifying service and has given a notice under rule 5.32B of 3 months (or if his request for relaxation of 3 months is accepted), then the request “shall” be accepted subject to invoking the provision of Rule 2.2 of the Punjab Civil Service Regulation (Vol. II). Under Rule 2.2, the “future good conduct” of an employee is an implied condition of every grant of pension. In other words, what all it means is that even if the acceptance of the voluntary retirement is mandatory, there is an obligation cast on the retired employee to maintain good conduct after such retirement. The words “future good conduct” mean good conduct after retirement. If the employee does not continue to maintain good conduct after retirement, then the government can withhold or withdraw the pension or a part of it in case he is convicted of serious crime or in case he be guilty of grave misconduct. Such decision to withhold or withdraw the whole or part of pension would be final and conclusive, that is to say, so far as the governmental hierarchy is concerned. It will be noticed that Rule 2.2 does not obstruct the voluntary retirement to come into force automatically on expiry of 3 months and it only enables withdrawal or withholding of pension subject to certain conditions, to a retired employee. (Para 8)
       The employment of government servants is governed by rules. These rules provide a particular age as the age of superannuation. Nonetheless, the rules confer a right on the Government to compulsorily retire an employee before the age of superannuation provided the employee has reached a particular age or has completed a particular number of years of qualifying service in case it is found that his service has not been found to be satisfactory. The rules also provide that an employee who has completed the said number of years in his age or who has completed the prescribed number of years of qualifying service could give notice of (say) three months that he would voluntarily retire on the expiry of the said period of three months. Some Rules are couched in language which results in an automatic retirement of the employee upon expiry of the period specified in the employee’s notice. On the other hand, certain Rules in some other departments are couched in language which makes it clear that even upon expiry of the period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be communicated. The relationship of master and servant in the latter type of rules continues after the period specified in the notice till such acceptance is communicated; refusal of permission could also be communicated after 3 months and the employee continues to be in service. (Para 9)
       If the right to voluntarily retirement is conferred in absolute terms as in Dinesh Chandra Sangma v. State of Assam & Ors., 1977(4) SCC 441 by the relevant rules and there is no provision in Rules to withhold permission in certain contingencies the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. If, however, as in B.J. Shelat v. State of Gujarat & Ors., 1978(2) SCC 202 and as in Sayed Muzaffar Mir’s case, 1995 Supp. (1) SCC 76 the concerned authority is empowered to withhold permission to retire if certain conditions exist, viz. in case the employee is under suspension or in case a departmental inquiry is pending or is contemplated, the mere pendency of the suspension or departmental inquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on expiry of the period specified. What is further needed is that the concerned authority must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in B.J. Shelat’s case and in Sayed Muzaffar Mir’s case-before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non-communication of acceptance should be treated as amounting to withholding of permission. (Para 13)
       In the case before us sub-clause (1) of Rule 5.32B contemplates a ‘notice to retire’ and not a request seeking permission to retire. The further “request” contemplated by the sub-section is only for seeking exemption from the 3 months period. The proviso to sub-clause (2) makes a positive provision that “where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in sub-rule (1), the retirement shall become effective from the date of expiry of the said period. The case before us stands on a stronger footing than Dinesh Chandra Sangma’s case so far as the employee is concerned. As already stated Rule 2.2 of Punjab Civil Service Rules Vol. II only deals with a situation of withholding or withdrawing pension to a person who has already retired. (Para 16)

Judgment

M. Jagannadha Rao, J.-Leave granted.

2. The appellant, State of Haryana, has filed this appeal against the Judgment of the High Court of Punjab and Haryana in C.W.P. No. 675 of 1996 dated 12.9.1997. By that Judgment, the High Court allowed the writ petition filed by the respondent and quashed the order dated 13.12.95 of the Civil Surgeon. The Civil Surgeon in his order stated that the respondent-writ petitioner could not be deemed to have retired voluntarily w.e.f. 16.11.95 pursuant to his notice dated 16.8.1995. The respondent had claimed that by virtue of the proviso to sub-clause (2) of Rule 5.32B of the Punjab Civil Service Rules (Vol. II), he must be deemed to have retired on the expiry of three months of notice issued after completion of 20 years’ qualifying service.

3. The facts of the case are as follows. The respondent joined service on 4.6.1975. While he was working as Medical Officer, Civil Hospital Kaithal, the respondent was transferred on 8.8.1995 as Medical Officer, Primary Health Centre, Kharak Ramji, District Jind. The respondent joined at Jind on 16.8.1995 and on the same date (i.e. 16.8.1995), he issued a notice seeking voluntary retirement, and the letter was addressed to the Commissioner and Secretary, Health Department, Haryana, Chandigarh. He sent an advance copy to the Commissioner Secretary and presented the application to his departmental head, Civil Surgeon, Jind. There was no response from the concerned authorities till 16.11.1995. Government stated in its counter filed in the High Court that the respondent was not allowed to retire w.e.f. 16.11.95 “as he was absent from duty and he did not perform his duties during the period of 3 months notice”. Long after the expiry of 3 months on 16.11.1995, a telegram was sent on 5.12.95 asking the respondent to join duty. It was the case of the respondent that his retirement was automatic on expiry of 3 months and that in any event, there was no truth in the allegation that he did not perform his duties in those 3 months. He pointed out that he wrote in the movement register on 1.9.95 at 11 a.m. that he was going to meet the Senior Medical Officer (SMO) incharge of Primary Health Centre, Kharak Ramji, Dr. Khazan Singh and had placed a copy of the station leave in the Movement Register, that he took the second copy with himself to seek permission, but at Jind, Dr. Khazan Singh was not available because on that day, the Government had declared 1st and 2nd September, 1995 as holidays on account of the assassination of the Chief Minister, Sri Beant Singh. On 4.9.95, the respondent had to give evidence in the Kaithal Court. (He had started from Kaithal on 1.9.95 itself). Thereafter, he had to give evidence in another Court on 6.9.95 and he could not go to Kharak Ramji to meet the SMO. Unfortunately, on 5.10.95, there were floods and the roads reaching to Jind were blocked. He sent a letter dated 7.9.95 to the Civil Surgeon, Jind from Kaithal informing him that due to floods he was unable to report at his head quarters and that he would be able to do so only after the floods reached and transport services were restored. The respondent obtained certificates from the Courts regarding his attendance at those Courts. He met the SMO and requested that his salary bill could be forwarded. The SMO said that the respondent could not join without permission of the Director and without explaining his absence to the Civil Surgeon. These facts were put on record in a separate letter dated 6.10.95 from Kaithal to the Director seeking permission to join duty at PHC, Kharak Ramji. He had to stay at Kaithal from 7 to 10th due to floods, then he attended Court at Kaithal from 11 to 14th September 1995, continued to stay at Kaithal due to floods from 15 to 17th Sep. 1995, attended Court there from 18 to 22nd September 1995. Then 23rd to 25th were Gazetted holidays (24th was Sunday). The floods continued and there was no transport. He attended Court again from 27th to 29th

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1999 Supreme(SC) 513

Important PointWhere as per Government Rules on notice for voluntary retirement, concerned authority is required to pass positive order either granting or refusing permission but no such order is passed, on the expiry of notice period voluntary retirement would become automatic.

Cases Referred (6)

Important Point
Where as per Government Rules on notice for voluntary retirement, concerned authority is required to pass positive order either granting or refusing permission but no such order is passed, on the expiry of notice period voluntary retirement would become automatic.