2011 Supreme(SC) 790

2011 (8) Supreme 494
SUPREME COURT OF INDIA
R. V. Raveendran and A. K. Patnaik, JJ.
State of U.P. & Ors. — Appellants
versus
Luxmi Kant Shukla — Respondent
Civil Appeal No.7105 of 2011
(Arising out of S.L.P. (C) No. 33672 OF 2010)
Decided on : 19-8-2011

Headnote:Service Law- U.P. Fundamental Rules, 1942 - Rule 56 -Initiation of disciplinary proceedings against respondent a member of Provincial Civil Services for authoring a book titled ‘Jati Raj’ as the book contained some remarks against national leaders-Application by respondent for grant of- voluntary retirement from service-Rejected by State government-However dismissal order passed by State Government- Whether the respondent stood voluntary retired from service before the order of dismissal was passed by the State Government- - High Court had taken the view in impugned judgment that it was incumbent upon appointing authority to inform the respondent before expiry of the notice period of three months that his request for voluntary retirement had not been accepted -This was not a case of “a contemplated disciplinary proceeding”, but a case of disciplinary proceeding which was already pending when respondent made the request for voluntary retirement - Finding of High Court that respondent was required to be informed before the expiry of his notice of voluntary retirement that it had not been accepted held erroneous- In this case, under the relevant proviso to Clauses (c) and (d) of FR 56, the right of a Government servant against whom a 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 respondent continued in service even after the period of notice of three months expired in August 2009 and his services were terminated only with dismissal passed- Impugned judgment set aside and the writ petition challenging the rejection of respondent’s request for voluntary retirement dismissed- Appeal allowed (Paras 13 to 18)

       Facts of the Case :

        Disciplinary proceedings were initiated against respondent a member of Provincial Civil Services herein in the instant case for authoring a book titled ‘Jati Raj’ as the book contained some remarks against national leaders.Application by respondent for grant of voluntary retirement from service was Rejected by State government. However dismissal order was passed against respondent by State Government.

        B. Issue in consideration whether the respondent stood voluntary retired from service before the order of dismissal was passed by the State Government.

       Findings of the Court :

        A A reading of clause (c) of FR 56 showed that when a government servant attains the age of 45 years, appointing authority as well as 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 of such notice shall be three months. Notice given by government servant against whom a disciplinary proceeding is pending or contemplated, shall be “effective only if it is accepted by the appointing authority.”

        B. High Court had taken the view in impugned judgment that it was incumbent upon appointing authority to inform the respondent before expiry of the notice period of three months that his request for voluntary retirement had not been accepted .This was not a case of “a contemplated disciplinary proceeding”, but a case of disciplinary proceeding which was already pending when respondent made the request for voluntary retirement . Finding of High Court that respondent was required to be informed before the expiry of his notice of voluntary retirement that it had not been accepted held erroneous.

        C. In this case, under the relevant proviso to Clauses (c) and (d) of FR 56, the right of a Government servant against whom a 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 respondent continued in service even after the period of notice of three months expired in August 2009 and his services were terminated only with dismissal passed. Impugned judgment was set aside and the writ petition challenging the rejection of respondent’s request for voluntary retirement was dismissed. Appeal was allowed