Patna High Court - Orders
Dr. Irbhay Kumar Jain vs The State Of Bihar & Ors on 30 June, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20235 of 2012
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Dr. Nirbhay Kumar Jain S/o Late Rajaram Jain, resident of Rajendra
Sarovar, P.S.-Chapra Town, District Saran at Chapra.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. Principal Secretary, Health & Family Welfare Department, Government
of Bihar, Patna.
3. Deputy Secretary, Health & Family Welfare Department, Government of
Bihar, Patna.
4. Civil Surgeon cum Chief Medical Officer, Siwan.
5. Accountant General (A&E), Bihar, Birchand Patel Path, Patna - 800001.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Abhay Shanker Singh, Adv.
For the State Mr. S.Raza Ahmad, Sr. Adv., AAG IX
Mr. Vishwambhar Prasad, AC to AAG IX
For the A.G., Bihar : Mr. Dhanendra Choubey, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
C.A.V.
8 30.06.2014Heard learned counsel for the petitioner and learned counsel for the State.
In this case, the petitioner is seeking relief of voluntary retirement with effect from 29th February 2011 in the light of the Rule 74(b) (i) of the Bihar Service Code (hereinafter referred to as the „Code‟) and payment of consequential benefit.
The petitioner was appointed as a Medical Officer in Primary Health Centre, Garu in the district of Palamu, now in the State of Jharkhand. During his service period, he was transferred from one place to another place and lastly the petitioner was posted as District Tuberculosis Officer, Siwan in the year 2010 Patna High Court CWJC No.20235 of 2012 2/35 where he has received salary upto January 2007. As has been submitted, the petitioner is suffering from Hyper tension, Non- Critical Coronary Artery Disease, Benign Prosthetic Hypertrophy. This apart, he is suffering from Chronic Backache due to old prolapsed inter vertebral disc with recurrent severe exacerbations and is undergoing treatment at Max Heart Hospital and Escort Heart Institute & Research Centre, New Delhi.
As the petitioner was not in a position to discharge his official duty, he filed an application dated 29th November 2010 stating therein that on account of his physical ailment he is not in a position to discharge his official duty and requested for granting him voluntary retirement with effect from 1st December 2010. Again a letter dated 13th January 2011 was sent to the Principal Secretary, Health Department, Bihar, Patna giving the details of ailment under which the petitioner is suffering and requested for granting him voluntary retirement.
The petitioner with regard to his ailment attached certificates along with letter dated 13th January 2011 showing his inability to perform the official duty on account of his illness. Another letter dated 2nd December 2012 and 5th January 2012 were also addressed to the Principal Secretary, Health Department, Government of Bihar. When the Government did not give any Patna High Court CWJC No.20235 of 2012 3/35 response, the present writ petition has been filed.
The counsel for the petitioner submits that in terms of Rule 74(b)(i) of the Bihar Service Code any government servant, having thirty one years of qualifying service or attains fifty years of age or any date thereafter to be specified in the notice, can apply for the voluntary retirement, subject to the condition that the employee may not be under suspension or any departmental enquiry is pending. He has further submitted that during the pendency of this writ petition, a charge sheet has been framed and the same has been issued on 31st October 2013 which he has not received, save and except, through this supplementary counter affidavit and the pendency of departmental proceedings or order of suspension will be considered in the context of day the petitioner had applied for the voluntary retirement, suspension or departmental proceeding thereafter, cannot be basis for refusal of granting voluntary retirement. He has further submitted while his case for voluntary retirement has been pending consideration before this Court and in hurry they have taken decision for initiation of departmental proceeding without giving even any reply to the letter making request for the voluntary retirement and kept big silence for about three years, shows this action has been taken with oblique motive to cause harm. The action of Patna High Court CWJC No.20235 of 2012 4/35 Respondent in initiating departmental proceeding is arbitrary and colourable exercise of power.
The counsel for the petitioner in support of his argument, has relied on judgment passed by this Court in CWJC No. 11873 of 2007, Dr. Prem Dutta Sharma Vs. the State of Bihar (Annexure-4) and CWJC No. 4826 of 2005, Krishna Kumar Mallick Vs. State of Bihar (Annexure-5). He also relied on judgment passed by the Hon‟ble Supreme Court in Civil Appeal No. 923 of 1977 (B.J.Shelat Versus State of Gujarat) 1978 SC 1109 and another judgment passed in Civil Appeal No. 1199 of 1977 (Dinesh Chandra Sangma Versus State of Assam) 1978 SC 17 and he also relied on order of the Hon‟ble Supreme Court passed in Civil Appeal No. 2620 of 1994 (Union of India Versus Sayed Muzaffar Mir).
The counsel for the State submits that the petitioner had never desired to go for voluntary retirement, as the letters which were received by the department, show that the prayer was made for grant of leave on medical ground and in support of his submission, he has relied on letter dated 25th August 2011 (Annexure-A) as well as order dated 8th October 2012 (Annexure- B) and has submitted that in terms of the Rule 76 of the Bihar Service Code, the State of Bihar being an employer, has every Patna High Court CWJC No.20235 of 2012 5/35 right to take action against employee who has remained absent for more than five years without any reasonable ground. The counsel for the State has also drawn attention to this Court of letter dated 17/1/2013 written by Joint Secretary, Health Department, Government of Bihar (Annexure-C) by which he informed the petitioner that on account of remaining absent illegally, the Government is contemplating for initiation of departmental proceeding in the light of Rule-76 of Bihar Service Code and the Circular dated 24th July 2009 (Annexure-D to this counter affidavit). He has further submitted that in fact, the petitioner was not ill rather he was/is running his private clinic as has been found in the enquiry as per Annexure-F which is one of the items of the charge sheet.
The counsel for the State is not a position to give any reply about the letters addressed to the State showing inability of the petitioner to discharge his official duty and asking for voluntary retirement. He is also not in a position to show that when an application was filed for granting him leave annexing copy of his medical report, the authority concerned who was required to respond, kept big silence but, when the matter has been pending before this Court, Respondents have initiated departmental proceeding.
Patna High Court CWJC No.20235 of 2012 6/35 The counsel for the State in reply to the judgments cited by the petitioner, has submitted that Dr. Prem Dutta Sharma‟s case and Dr. Krishna Kumar Mallick‟s case are not applicable to the fact of the present case, as in Dr. Prem Dutta Sharma‟s case, notice of voluntary retirement was given by the petitioner was accepted and in Dr. Krishna Kumar Mallick‟s case though the notice of voluntary retirement was given but no proceeding was initiated against Dr. Krishna Kumar Mallick on the date of passing of the order and as such, the fact of those cases are quite different to the present case.
This Court has to see whether the action of the department in keeping silence on the letter of petitioner asking voluntary retirement, instead of giving response, during pendency of writ petition, decided to initiate departmental enquiry, will it be fair and proper act or it will be an act of arbitrariness. This Court would consider the propriety and justifiability of State action in initiating departmental proceeding and this Court would consider the issue of granting voluntary retirement as the petitioner by filing application specifically requested for granting voluntary retirement.
It will be relevant to examine the contour of Rule 74
(b) (i) and Rule 76 of the Code, are as follows:-
Patna High Court CWJC No.20235 of 2012 7/35 Rule 74 (b) (i) Notwithstanding anything contained in the preceding sub-rule, a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice:
Provided that no Government servant under suspension shall retire from service except with the specific approval of the state Government. Rule 76 Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a Government servant, after the five years continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave ceases to be in Government employ." Rule 74(b)(i) of the Bihar Service Code as state above provides that the government servant may go for voluntary retirement after giving at least three months of previous notice in writing to the appropriate authority concerned to retire from service on the date government servant completes thirty one years Patna High Court CWJC No.20235 of 2012 8/35 of qualifying service or attains fifty years of age or any date thereafter to be specified in the notice.
From the reading of the Rule 74 (b) (i) of the Code it postulates that if a government employee having completed fifty years of qualifying service after giving three months notice in writing, can go for a voluntary retirement except when the departmental proceeding is under contemplation or he has been put under suspension.
In the present case, there is no dispute, notices were given to the State for granting voluntary retirement to the petitioner but this Court would examine as to whether the notice of Voluntary Retirement conform to the condition laid down in Rule 74 (b) (1) of Bihar Service Code.
The Hon‟ble Supreme Court and this Court time without number said that the Rule 74(b)(i) of the Code does not contemplate the voluntary retirement is dependent upon the acceptance or requiring any formal order from the Government but only required that the condition should be fulfilled and the moment period of notice expires, it will be deemed to have been voluntary retired It will be relevant to quote from the judgment of Dr. Krishna Kumar Mallick (supra) (Annexure-5) which is as Patna High Court CWJC No.20235 of 2012 9/35 follows:-
"A bare perusal of Rule 74(b)(i) of the Bihar Service Code would show that the right of an employee to seek voluntary retirement is not dependent upon its acceptance or requiring any formal order from the government. The only condition that is imposed is that he must have completed 20 years of service and gives three months notice. It may be mentioned here that originally the rule provided for 30 years of service, which in 1999 has been reduced to 20 years of service. The other thing to be noted is that a government servant under suspension cannot seek voluntary retirement without specific approval of the State Government."
In the case of Dr. Krishna Kumar Mallick, the Government was contemplating to initiate the departmental proceeding but after the notice for voluntary retirement by Dr. Krishna Kumar Mallick and the Court has arrived to a conclusion that after three months of notice the relationship of master and servant having come to an end and after severance of relationship the question of departmental proceeding would be too late to resort the provision of the Rule 76 of the Code. Patna High Court CWJC No.20235 of 2012 10/35 The Hon‟ble Supreme Court in the case of Dinesh Chandra Sangama (supra) was considering the scope and parameter of voluntary retirement. In that case Dinesh Chandra Sangama was District & Sessions Judge at Dibrugarh in the State of Assam. After serving for about twenty years on account of certain domestic troubles, he did not want to continue in service after attainment of 50 years of age. He served a notice on the Government for voluntary retirement and proposed to make with effect from 2nd August 1976 (afternoon). The Governor of Assam issued a notification was pleased to allow Sri D.C. Sangama to retire with effect from 2nd August 1976 (afternoon). The High Court allowed him to go on one month‟s leave prepatory to retirement with effect from 2nd July 1976 i.e. the date he relinquished the charge of office.
In the mean time, quick development took place. The Government sought to retreat its steps and passed order on 28 th July 1976 countermanding its earlier order of 1st July 1976 not allowing him to retire from service with effect from 2nd August 1976. Accordingly, on 31st July 1976, the High Court also squaring with the Government‟s order of 28th July 1976 transferred Mr. Sangama from Dibrugarh to Dhubri and asked him to join there immediately after the expiry of his leave. Patna High Court CWJC No.20235 of 2012 11/35 Sri Sangama did not join as he claimed to have retired from service on 2nd August 1976 i.e. the date he relinquished the charge of office.
He made several representation to the High Court and the Government but without success. The Government refused to recall the order of revocation and the High Court directed to join the new place of posting or to face the departmental proceeding. Rule 56(b) of the Fundamental Rules which is pari-materia of Rule 74(b)(1) of the Code, which deals with the compulsory retirement and voluntary retirement came for consideration before the Hon‟ble Supreme Court in the case of Dinesh Chandra Sangama (supra) where the Court said that the Government servant holds the Office during the pleasure of the President or the Governor, as the case may be but the same is controlled in terms of Articles 310 and 311(2) of the Constitution of India. The Court has discussed further that the Government servant cannot terminate, except in accordance with Rules made under Article 309 , subject to Article 311(2) of the Constitution of India and the Fundamental rights. It has been said that the compulsory retirement does not amount to removal or dismissal by way of punishment and the Government reserve its right to compulsorily retire a Government servant even against his wish and there is Patna High Court CWJC No.20235 of 2012 12/35 corresponding right to the Government servant to voluntarily retire from serviced by giving three months‟ notice in writing. There is not question of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under Fundamental Rule 56©. It will be relevant to quote Para-8 of the judgment which is as follows:
"Para:8. As is well known Government servants hold office during the pleasure of the President or the Governor, as the case may be, under Article 310 of the Constitution. However, the pleasure doctrine under Article 310 is limited by Article 311(2).It is clear that the services of a permanent Government servant cannot be terminated except in accordance with the rules made under Article 309 subject to Article 311(2) of the Constitution and the Fundamental Rights. It is also well settled that even temporary Government servant or a probationer cannot be dismissed or removed or reduced in rank except in accordance with Article 311(2). The above doctrine of pleasure is invoked by the Government in the public interest after a Government servant attains the age of 50 years or has Patna High Court CWJC No.20235 of 2012 13/35 completed 25 years of service. This is constitutionally permissible as compulsory termination of service under F.R.56(b) does not amount to removal or dismissal by way of punishment. While the Government reserves its right to compulsorily retire a Government servant, even against his wish, there is a corresponding right of the Government servant under F.R.56(c) to voluntarily retire from service by giving the Government three month‟s notice in writing. There is not question of acceptance of the request for voluntary retirement by the Government when the Government servant exe5rcises his right under F.R.56(c). Mr. Niren De is therefore right in conceding this position."
The matter again came up before the Hon‟ble Supreme Court in the case of B.J.Shelat v. State of Gujarat, (1978)2 SCC 202: AIR 1978 SC 1109. There also Mr. Shelat was a Judicial Magistrate and sought his voluntary retirement. Earlier an application was filed and later on the Registrar of the High Court directed him to file a fresh application. In terms of the direction, he filed an application as provided under Bombay Civil Services Rules. Before the date of retirement, a Patna High Court CWJC No.20235 of 2012 14/35 show cause notice was served upon him making several allegations, he submitted his explanation, in turn, the High Court issued suspension order, pending the departmental proceeding against him which was under consideration. The same was challenged. There the Court has considered the scope of Rule 161 of Bombay Civil Service Rule which deals with the voluntary retirement and the Court has held that disciplinary action cannot be started after the date of retirement and held that the appointing authority has no jurisdiction to take disciplinary action against him. Para-10 of the judgment is relevant which is as follows:
"Para-10. It will be useful to refer to the analogous provision in the Fundamental Rules issued by the Government of India applicable to the Central Government servants. Fundamental Rule 56 (a) provides that except as otherwise provided in this Rule, every Government servant shall retire from service on the after noon of the last day of the month in which he attains the age of fifty-eight years. Fundamental Rule 56(j) is similar to R.161 (aa) (1) of the Bombay Civil Services Rules conferring an absolute right on the appropriate authority to retire a Government servant by giving not less than three Patna High Court CWJC No.20235 of 2012 15/35 months‟ notice. Under Fundamental Rule 56(k) the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to sub-r 56(k) states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. Thus under the Fundamental Rules issued by the Government of India also the right of the Government servant to retire is jot an absolute right but is subject to the proviso whereunder the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of Rule 161 (2)(ii) and the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the grounds specified in the proviso."
In another judgment in the case of Union of India v. Sayed Muzaffar Mir, AIR 1995 SC 176 the Court held that where Patna High Court CWJC No.20235 of 2012 16/35 the Government servant opts his premature retirement, the same does not require any acceptance and the Court held as follows:
"There is no question of acceptance of request for voluntary retirement by the government servant when the government servant exercises his right in respect therein. Thus, with effect from 1st April 2000 the petitioner would be deemed to have retired voluntarily. The consequence would be that he would accordingly be entitled to all benefits in this regard and another important consequence would be that upon voluntary retirement having matured, the master and servant relationship having come to an end."
In State of Haryana v. S.K.Singhal, reported in (1999)4 SCC 293 the Hon‟ble Supreme Court was considering voluntary retirement where it has said that the Rule provides a particular age as the age of superannuation. Nonetheless the Rule confers 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 tenure was satisfactory. The Rules also provide that an employee who Patna High Court CWJC No.20235 of 2012 17/35 has attained particular age or has completed prescribed number of years of his qualifying service to be given notice (say three months) that he will voluntarily retire on the expiry of said period of three months and some rules are couched in language which results in an automatic retirement of the employee upon the 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 three months and the employee continues to be in service.
The Court further held that in the case of State of Haryana, the provision of voluntary retirement under sub-rule(1) of Re 5.32(B) was under consideration. There in the Rule, the word was „notice to retire‟ and a Singhal request seeking permission to retire. The Court held that after expiry of notice period the retirement shall become effective on the day of expiry Patna High Court CWJC No.20235 of 2012 18/35 of such period. It is relevant to quote Para-18 of the judgment which is as follows:
Para-18. In the case before us, sub-
rule(1) of Rule 5.32(B) contemplates a „notice to retire‟ and not a request seeking permission to retire. The further „request‟ contemplated by the subs-rule is only for seeking exemption from the 3 months‟ period. The proviso to sub-rule(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 Sangama case so far as the employee is concerned.
As already stated Rule 2.2 of the Punjab Civil Services Rules, vol. II only deals with a situation of withholding or withdrawing pension to a person who has already retired."
There the Court has considered the earlier judgments of the Hon‟ble Supreme Court in the cases of Dinesh Chandra Sangma (supra), B.J.Shelat (supra), Union of India vs. Sayed Patna High Court CWJC No.20235 of 2012 19/35 Muzaffar Mir 1995 Supp. (1) SCC 76, Baljit Singh vs. State of Haryana, 1997 (1) SCC 754.
In the case of Tek Chand v. Dilellram reported in (2001)3 SCC 290 the Hon‟ble Supreme Court was also considering different nature of view dealing with voluntary retirement. There the Court has held that in the first category, voluntary retirement automatically comes in force on the expiry of notice e period. In the 2nd category voluntary retirement comes into force unless an order is passed during the notice period withholding permission to retire and the 3rd category of voluntary retirement does not come in into force unless permission to this effect is granted by the competent authority. It will be relevant to quote para-34 and 35 of the judgment which is as follows:
"Para-34: This Court in a recent judgment in the case of State of Haryana v. S.K.Singhal after referring to few earlier decisions of this Court touching the very point in controversy in para-13 of the judgment has held thus :
'13. Thus, from the aforesaid three decisions it is clear that if the right to voluntarily retire is conferred in absolute terms as in Dinesh Chandra Sangama case by the relevant rules and there is no Patna High Court CWJC No.20235 of 2012 20/35 provision in the 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 case and as in Sayed Muzaffar Mir case the authority concerned is empowered to withhold permission to retire if certain conditions exist, viz. In case the employee is under suspension or in case a departmental enquiry is pending or is contemplated, the mere pendency of the suspension or departmental enquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on the expiry of the period specified. What is further needed is t hat the authority concerned must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in B.J.Shelat case and in Sayed Muzaffar Mir 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 Patna High Court CWJC No.20235 of 2012 21/35 withholding of permission‟.
Para-35: In our view, this judgment fully supports the contention urged on behalf of the appellant in this regard. In this judgment, it is observed that there are three categories of rules relating to seeking of voluntary retirement after notice. In the first category, voluntary retirement automatically comes into force on expiry of notice period. In the second category also, retirement comes into force unless an order is passed during notice period withholding permission to retire and in the third category voluntary retirement does not come into force unless permission to this effect is granted by the competent authority. In such a case, refusal of permission can be communicated even after the expiry of the notice period. It all depends upon the relevant rules. In the case decided, the relevant Rule required acceptance of notice by appointing authority and the proviso to the Rule further laid down that retirement shall come into force automatically if the appointing authority did not refuse permission during the notice period. Refusal was not communicated to the respondent Patna High Court CWJC No.20235 of 2012 22/35 during the notice period. Refusal was not that voluntary retirement came into force on expiry of the notice period and subsequent order conveyed to him that he could not be deemed to have voluntary retired had no effect. The present case is almost identical to the one decided by this Court in the aforesaid decision."
The matter again came for consideration before the Hon‟ble Supreme Court in the case of Padubidri Damodar Shenoy v. Indian Airlines Ltd. Reported in (2009)10 SCC 514. In that case notice of voluntary retirement from service was given under Regulation 12 of the Service Regulation. He did not receive any reply in spite of reminder. A letter dated 8th June 2006 was again sent by him informing the respondent Management that he would cease to be an employee of the respondent no.1 after close of the working hours on 30th June 2006. Shenoy was informed that his application for voluntary retirement has been forwarded to the headquarters for a decision in the matter and he was advised to report for duty immediately, failing which he was informed that disciplinary action would be taken against him.
That was challenged and during the pendency of the writ, he was communication that his request for voluntary Patna High Court CWJC No.20235 of 2012 23/35 retirement was rejected. There a prayer was made for approval of voluntary retirement and to pay all dues. The Court has considered earlier judgment and also different kind of Rules dealing with voluntary retirement.
In the first category, after expiry of notice period, the voluntary retirement automatically becomes effective in its absolute term by operation of the relevant Rules and there is no provision in the rule to withhold permission in certain contingencies, the voluntary retirement comes into effect automatically on expiry of the period of notice. If, however, the rule provides, empowering authority to withhold permission to retire in certain condition i.e. in case the employee is under suspension or in case of departmental proceeding being pending or is contemplated, the mere pendency of the suspension or departmental enquiry or its contemplation does not result in notice for voluntary retirement not coming into effect on the expiry of period of specified notice. What is further required, the authority concerned must pass a positive order withholding permission to retire and must also communicate the same to the employee before expiry of notice period. Consequently, there is no requirement of an order of acceptance of notice to be communicated to the employee nor can it be said that non-communication of Patna High Court CWJC No.20235 of 2012 24/35 acceptance should be treated as amounting to withholding of permission. Secondly the rule provides the authority concerned must pass positive order of acceptance of notice of voluntary retirement and communication thereof, till then jural relationship of master and servant continues. The Court was interpreting Regulation 12 of the Service Regulation which is as follows:
"12. An employee shall retire from the service of the Company on attaining the age of 58 years provided that the competent authority may ask an employee to retire after he attains the age of 55 years on giving three months‟ notice without assigning any reasons. An employee:
a) On attaining the age of 55 years; or
b) On the completion of 20 years of continuous service may by giving three months‟ notice voluntarily retire from the service:
Provided that the voluntary retirement under clause (b) shall be subject to approval of competent authority.
Provisions of Rule 12(b)(1) provide that the employee is required to give three months‟ prior notice giving his intention for voluntary retirement, provided he has completed 20 years of service or has attained the age of 55 years but subject to approval of competent authority. Notice of three Patna High Court CWJC No.20235 of 2012 25/35 months for voluntary retirement remain valid even if no communication is received within the notice period but would become effective only on its approval by the competent authority.
While interpreting the Rule, the Court has held that there is nothing to indicate in Regulation 12 that if the employer decides to withhold approval of voluntary retirement, such refusal of approval must be communicated to the petitioner during the period of notice. Notice of three months of voluntary retirement is given by an employee under Clause-(b) remains valid even if no communication is received within the notice period but it becomes effective only on its approval by the competent authority. There the Court did not accept the submission of the employee that he stood voluntarily retired and the Court granted opportunity to the parties to resolve the dispute but failed.
Let us examine the present case. Whether the petitioner would be treated to be voluntarily retired after expiry of 3 months‟ notice, as has been contemplated in the letter. From the Letter dated 29th November 2010 which is the first letter that the petitioner has addressed to the Principal Secretary, Health Department stating therein that his date of birth is 3rd January 1951 and he has already completed 31 years of service and his physical Patna High Court CWJC No.20235 of 2012 26/35 condition is not such that he can discharge his duty and sought voluntary retirement with effect from 1st December 2010. There also the petitioner has mentioned about suffering from different diseases and said that he is not in a position to discharge his official duty. Attaching the record from different Hospitals to substantiate his physical condition, he again sent two reminders dated 2nd December 2011 and 5th January 2012. There also same ground has been reiterated.
On perusal of notice, one grave lacuna appears that in terms of Rule 74(b)(1) the employer or employee is required to give 3 months‟ clear cut notice, either from the employer for compulsory retirement or from the employee for voluntary retirement, which is missing in each and every notice of the petitioner.
In the counter affidavit, some of the letters addressed by the petitioner to the Principal Secretary, Health Department, Government of Bihar, representations dated 25th August 2011 and 8th December 2012 where it shows that he had made a request for extension of his medical leave. The mandate of law is that the employee was/is required to give three months‟ clear cut notice and unless three months‟ notice is there, it cannot be said to be an application for voluntary retirement. This Court is of the view that Patna High Court CWJC No.20235 of 2012 27/35 when the law provides, the particular act has to be done in particular manner, that act has to be done in that manner alone and not otherwise.
Relevant Citation: 2010 (1) PLJR 627 Pramod Kumar Singh v. State of Bihar. Para-9 "Be it place on record, guidelines that have been issued by the State Election Commission stipulates that where the cross mark(X) has been put either in the name of the candidate or adjoining to his name the ballot paper should be accepted as valid and should not be treated as invalid. On scanning of the anatomy of the aforequoted provisions, it is vivid that a member is required to put a cross (x) mark against the name of the candidate. There is a column of putting for cross (X) mark. It is appropriate to state that the same is in the compartment of procedure.
Rule 96 categorically provides under what circumstances a ballot paper is to be treated as invalid. On a perusal of the prescriptions under Clauses (a) to (e) of Rule 96, it is luculent that they relate to different realms altogether. They do not cover a situation of the present nature. Submission of Patna High Court CWJC No.20235 of 2012 28/35 Mr. Sharma is that when there is violation of Rule 95 the concerned competent authority had rightly declared the vote to be invalid and the learned Single Judge has fallen into grate error by dislodging the said order. There can be no shadow of doubt that Rules 94 to 96 have to be read conjointly and the mandate of Rule 96 have to be given its true meaning the same being categorical and absolutely unambiguous. When a ballot paper does not fall in any of the compartments of Clauses (a) to (e) it would not be correct to treat the ballot paper as invalid. The guidelines though, we may profitably observe, have been issued by the State Election Commission, after the order passed by the Sub- Divisional Officer, yet it can safely be concluded that it is in accord with Rule 96, rather, in fact, expresses the true conceptual meaning that should be placed on the language employed in Rule 96. The decision rendered in the case of Babu Ram (supra) which has been commended to us by Mr. Sharma rally does not assist him from any spectrum. As is evident Rule 95 requires a voter to put cross (X) mark against the Patna High Court CWJC No.20235 of 2012 29/35 name of the candidate. True it is, there is Form-26 and there is a column in it but it is the Rule 96 which provides the consequence. In the absence of any provision in Rule 96 to the effect that if a vote is not put in the column prescribed for a candidate, it would be invalid, it would be difficult nay impossible, to place the said construction on the provision. The submission of Mr. Sharma is primarily based on Rule 95 and on that foundation it is propounded that if the vote is not cast in the manner it is provided it should be treated as invalid. It is well settled in law that when Statute gives certain power to the authority to be exercised in a particular manner that power has to be exercised only in that manner. The exercise by a manner contrary to what has been prescribed makes the order ultra vires. In this context, we may fruitfully to a three-Judges Bench decision of the Apex Court in Ramchandra vs. Govind, AIR 1975 SC 915, wherein it has been held as follows:-
A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426 Jessel M. R. adopted the rule that where a power is given to do a Patna High Court CWJC No.20235 of 2012 30/35 certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time.
It was applied by the Privy Council, in Nazir Ahmed v. Emperor, 63 Ind App 372 = (AIR 1936 PC 253 (2)) and later by this Court in several cases, Shiv Bahadur Singh v. State of V. P., (1954) SCR 1098 = (AIR 1954 SC 322 = 1954 Cri LJ 910)'; Deep Chand v. State of Rajasthan. (l962) SCR 662 = (AIR 1961 SC 1527 = 1961 (2) Cri LJ 705) to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation of Statutes, 11th Edn.pp.362-
363."The rule will be attracted with full force in the present case, because non-verification of Patna High Court CWJC No.20235 of 2012 31/35 the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed is implied in these provisions. Failure to comply with these mandatory provisions, therefore had vitiated the surrender and rendered it non est for the purpose of S. 5 (3) (b).
The Hon‟ble Supreme Court in the case of B. Pemanand v. Mohan Koikal reported in (2011) 4 SCC 266 has observed that if there is a conflict between equity and law, it is the law which must prevail, equity can only supplement the law when there is a gap in it, but it cannot supplant the law.
In this view of the matter, this Court is of the view that the application filed by the petitioner cannot be treated as an application for voluntary retirement but this is not end of the matter. Petitioner is repeatedly showing his inability in discharging official duties on account of physical condition.
While the matter was pending before this Court in stead of responding to the letter of the petitioner giving sympathetic consideration as there is no case of any misconduct of Patna High Court CWJC No.20235 of 2012 32/35 serious nature but he remained absent on account of his physical condition where large number of papers from the Hospitals relating to his treatment were attached to show his physical condition but it is very surprising the Government decided to proceed against the petitioner vide resolution dated 31st October 2013 annexing the charge-sheet where it has been stated that his leave was not approved and he remained absent unauthorisedly. The question is whet her this act of the Government can be said to be proper exercise of administrative power or it is completely illegal, arbitrary and colorable exercise of power.
When an action of the administrative authority can be said to be arbitrary exercise of power has been well discussed in the case of East Coast Railway and another Vs. Mahadev Appa Rao and others, (2010) 7 SCC 678, it will be relevant to quote paras 23 and 30 of the said judgment, are as follows:-
Para- 23 Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the Patna High Court CWJC No.20235 of 2012 33/35 record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclose is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.
Para 30 We may hasten to add that while application of mind to the material available to the competent authority is an essential prerequisite for the making of a valid order, that requirement should not be confused with the sufficiency of such material to support any such order. Whether or not the material placed before the competent authority was in the instant case sufficient to justify the decision taken by it, is not in issue before us. That aspect may have assumed importance only if the competent authority was shown to have applied its mind to whatever material was available to it before cancelling the examination. Since application of mind as a threshold Patna High Court CWJC No.20235 of 2012 34/35 requirement for a valid order is conspicuous by its absence, the question whether the decision was reasonable having regard to the material before the authority is rendered academic. Sufficiency or otherwise of the material and so also its admissibility to support a decision the validity whereof is being judicially reviewed may even otherwise depend upon the facts and circumstances of each case. No hard- and-fast rule can be formulated in the regard nor do we propose to do so in this case.
In the case of E.P.Royappa v. State of Tamil Nadu reported in AIR 1974 SC 555 the Hon‟ble Court held that Articles 14 and 16 of the Constitution strike at arbitrariness in the State action and ensures fairness and equality of treatment. They require that State action must be based on valid, relevant principle applicable alike to all similarly situated persons and it must not be guided by any extraneous or irrelevant consideration.
In the present case, there is no doubt that the petitioner has been consistently making a request to see his physical condition as he is not able to discharge his duty kept mum in stead of responding to the letter, the respondents slapped him by serving charge-sheet vide letter dated 31/10/2013 Patna High Court CWJC No.20235 of 2012 35/35 (Annexure-F) through supplementary affidavit though the petitioner has been filing representation since 29/11/2010 (Annexure-1) did not respond. This Court is of the view that this action of the Government is completely arbitrary.
In the result, this Court is not treating the notice by the petitioner as a notice of voluntary retirement but this Court is of the view that the charge-sheet which has been served upon the petitioner is not sustainable, accordingly same is quashed. However, petitioner will not be entitled to salary during the period of his absence from duty. If any application is filed with respect to adjustment of period of his absence, the respondent will pass order in accordance with law.
With this observation and direction, this petition is disposed of.
Mahesh/- (Shivaji Pandey, J)