Jharkhand High Court
The State Of Jharkhand vs Ravi Choudhary on 3 December, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.148 of 2021
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1. The State of Jharkhand, through its Chief Secretary, having
its office at Project Bhawan, H.E.C., Dhurwa, P.O. Dhurwa,
P.S. Jagarnathpur, District-Ranchi.
2. The Principal Secretary, Road Construction Department,
Government of Jharkhand, Project Bhawan, H.E.C. Dhurwa,
P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi
... ... Respondents/Appellants
Versus
1. Ravi Choudhary, aged about 57 years, S/o. Late
Kameshwar Prasad Singh, R/o. K.K. Kunj, Dahiya,
P.O., P.S. and District-Dhanbad.
... ... Petitioner/Respondent
2. The Accountant General, Jharkhand, P.O. P.S.
Doranda, District-Ranchi
... ... Respondents/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant : Mr. Ashutosh Anand, AAG-III
Mr. Sahbaj Akhtar, AC to AAG-III
For the Resp. No.1 : Mr. Sharon Kerketta, Advocate
For the Resp. No.2 : Mr. Amit Kr. Verma, Advocate
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C.A.V. on 29.10.2024 Pronounced on 03.12.2024
Per Sujit Narayan Prasad, J.
Prayer
1. The instant appeal preferred under Clause-10 of Letters Patent is directed against the order dated 30.06.2020 passed by the learned Single Judge of this Court in W.P.(S) No.516 of 2015, whereby and whereunder, the writ petition has been -1- LPA No.148/2021 allowed by quashing the order dated 24.01.2019 as contained in letter no.562(S), by which, the authority has rejected the prayer for separation from service on voluntary retirement. Facts
2. The brief facts of the case, as per the pleading made in the memo of appeal, required to be enumerated, are as hereunder:
3. It is the case of the writ petitioner that he was joined the service in the erstwhile State of Bihar vide notification No.2199 dated 16.6.1987 on the post of Assistant Engineer in Bihar Engineering Service in Road Construction Department and after bifurcation of the State of Bihar the petitioner opted for the State of Jharkhand.
4. The service of the petitioner was confirmed vide notification No. 4652 dated 03.07.2004 and the petitioner was given the benefit of first Assured Career Progression Scheme vide notification dated 16.5.2005 with effect from 09.08.1999 after completion of 12 years of continuous service. Further, case of the writ petitioner is that while, he was posted as Project Officer, MESO Project, Jamtara, he made an application in July, 2007 for getting voluntary retirement due to some family reasons but the said application remained pending till the date of filing of the writ application.
5. Although, there was no acceptance of his VRS application but a seniority list was published by the Department in the year 2009 where the name of the writ petitioner has been -2- LPA No.148/2021 omitted. As aforesaid, pursuant to the order of this Court an order of rejection of the VRS application was passed in the month of January, 2019 as contained in letter No.562 (S) dated 24.01.2019 issued under the signature of Under Secretary to the Government, Road Construction Department indicating that in the light of Paragraph 1 of the Circular of the Finance Department No. 6190 dated 27.4.1979, the claim of the writ petitioner for voluntary retirement is rejected and it was further directed in the said letter that the writ petitioner should first join at the Headquarter fixed during the period of suspension. It has also been pointed out in the said letter that the writ petitioner has not completed 20 years of service.
6. It is evident from the factual aspect that the writ petitioner has made an application for separation from service on voluntary retirement, in view of the provision of Rule 74(b) of the Bihar Service Code (herein after refer as Code) read with circular dated 27.04.1979 issued by the Government of Bihar but the said application has been rejected vide order dated 24.01.2019 rejecting the prayer for separation from service on the ground that the writ petitioner has not completed 20 years of service, as per the requirement of Rule 74 of the Code and the circular dated 27.04.1979.
7. The writ petitioner, being aggrieved with the same, has preferred writ petition being W.P.(S) No.516 of 2015. The said writ petition has been allowed by quashing and setting aside -3- LPA No.148/2021 the order dated 24.01.2019 with a direction upon the Respondent-State to calculate the retirement benefit of the writ petitioner and pay the same including settlement of pension in accordance with law and with a further direction that the entire exercise should be completed within a period of four months from the date of receipt of copy of the order.
8. The appellant-State, being aggrieved with the said order, is before this Court by filing the instant appeal. Arguments of the learned counsel for Appellant-State
9. Mr. Ashutosh Anand, learned AAG-III appearing for the appellant-State has taken the following grounds in assailing the impugned order:-
a. The learned Single Judge has not taken into consideration the fact that the writ petitioner has been suspended for his unauthorized absence from 10.01.2007 for his irresponsibility in duty as Assistant Engineer, MESO, Project, Jamtara.
b. The application was submitted by the writ petitioner for his voluntary retirement after unauthorized absence which also caused suspension of the writ petitioner.
c. To buttress his argument, learned State Counsel has relied upon the judgment rendered by the Hon'ble Apex Court in the case of State of Punjab Vrs. Dr. P.L. Singla, reported in (2008) 8 SCC 469.-4- LPA No.148/2021
d. On the aforesaid premise it has been submitted that the order impugned requires interference by this Court.
Arguments of the learned counsel for respondent no.1
10. Learned counsel for the respondent no.1 has defended the impugned order by taking the following grounds:-
a. As per circular dated 27.04.1979, a Government Servant whose qualifying service is not less than 20 years can take retirement by giving three months prior notice to the competent authority.
b. Further, it has been submitted that the case of the writ petitioner is squarely covered under the scheme as he has completed 20 years of service on the date of making application for voluntary retirement.
c. It has further been submitted that the competent authority has neither accepted the request of the writ petitioner for voluntary retirement nor refused the request and as such, the request of the petitioner for voluntarily retirement would be deemed to attain finality after expiry of the stipulated period of three month as specified in the said circular.
d. Further it has been submitted that since the learned Single Judge after taking into consideration Rule 74 (B) of the Code and circular dated 27.04.1979 has quashed the order dated 24.01.2019 by which the claim of voluntarily retirement of the petitioner has been rejected, hence the -5- LPA No.148/2021 order impugned requires no interference by this Hon'ble Court.
Analysis
11. This Court has appreciated the rival submissions made on behalf of the parties and on consideration of the same, it needs to refer herein the admitted factual aspect.
12. The writ petitioner/respondent herein was inducted in service on 16.06.1987 and as stated while in service, he was put under suspension on the ground of unauthorized absence. The writ petitioner, thereafter, has made an application in the Month of July, 2007 for separation from service on voluntary retirement by taking aid of the provision of Rule 74 of the Service Code read with Circular dated 27.04.1979 but the same having been rejected, therefore, the present appeal.
13. The issue which requires consideration as per the provision of Rule 74 of the Service Code which has been taken into consideration by the learned Single Judge that:-
a. What would be the meaning of 'qualifying service', as to whether, the 'qualifying service' means 20 years of service or the continuity in service of 20 years.
b. Whether only on the ground of un-authorized absence if the authority has taken note of punitive action by initiating a departmental proceeding, can the action of the State in considering the unauthorized absence to be punitive in nature in absence of any decision to that effect -6- LPA No.148/2021 by the competent authority will be said to be improper.
14. Both the issues since are interlinked, as such, the same are being taken together hereinafter.
15. This Court, in order to answer the aforesaid issues, needs to refer the provision of Rule 74 of the Service Code, which reads as under:-
"74. (a) The state Government may require any Government servant who has completed twenty one years of duty and twenty five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Whether any Government servant is so required to retire not claim to any special compensation shall be entertained.
(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:] [Provided further that in case of the officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi) under the rule making authority of the Chief Justice, no such officer and servant under suspension shall retire from service except with the specific approval of the Chief Justice. [(ii) The appointing authority concerned may after giving a Government -7- LPA No.148/2021 servant at least three month's pay and allowance in lieu of such notice, require him in public interest, to 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. [(iii) A Government servant who retires voluntarily is required to retire in public interest under this rule on attaining the age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death-cum-retirement gratuity."
16. It is evident from the aforesaid provision that the state Government may require any Government servant who has completed twenty-one years of duty and twenty-five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service.
17. Rule 74-b(i) provides that 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. Rule 74(iii) further provides that a Government servant who retires voluntarily or is required to retire in public interest under this rule on attaining the age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death-cum- retirement gratuity.
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18. The reference of the circular dated 27.04.1979 also needs to be made, which reads as under:-
"A Government Servant whose qualifying service is not less than 20 years can take retirement by giving three months' prior notice to the competent appointing authority.
This scheme is completely voluntary in which the Government servant has himself to initiate and the Government has no alternative to retire Government servants under this scheme.
Under this scheme Pension shall be payable to the retiring Government servants.
6. Voluntarily one can withdraw his notice for retirement with the consent of appointing authority provided the request of this withdrawal is made before the expiry of three months of furnishing notice.
7. After 20 years of qualifying service the approval of the competent appointing authority is essential in furnishing notice of voluntary retirement. If the date of retirement falls prior to the date of expiry of such notice on the date of the Government servant would have retired voluntarily in his regard according to the existing rules (i.e., rules 74 B of Bihar Service Code). Paragraph 2 of Clause 1 of Liberalized Pension Scheme 1950 under Bihar Pension Rules & Rule 130 of Bihar Pension Rule or other similar rules and such approval can be generally given in all cases (Excluding cases of the category of the following "Ka"
and "Kha") (Ka) Such cases in which with a view of awarding major punishment against a Government servant disciplinary action has to be taken or if any such action is pending and if it is the opinion of the Officer conducting the disciplinary action that in the concerned case it is essential to award punishment of dismissal and termination of the said Government servant keeping in view all the aspects of charges (framed against him).
(Kha) In such cases when Prosecution is expected against Government servant in the court of prosecution has been initiated. But in case of this category if there is proposal to accept notice if such voluntary retirement than approval of the Ministerin- charge may be taken in the case of Government servant coming under Category ("Ka") and ("Kha"). In cases other than those the approval of the Head of the department is essential.
In cases in which approval of notice for voluntary retirement is essential to be taken from appointing authority in such cases also approval to this effect in respect of the Government servants giving notice shall -9- LPA No.148/2021 be deemed to be approved provided that no adverse order is passed by the competent authority prior to the date of giving notice. The date of retirement shall be deemed to have come into effect from the date mentioned in such cases."
19. It is evident from the aforesaid circular that a Government Servant whose qualifying service is not less than 20 years can take retirement by giving three months' prior notice to the competent appointing authority.
20. From combined reading of the aforesaid provisions, it is evident that the Government servant may, after giving at least three months' notice in writing to the appointing authority concerned, retire from service on the date on which the government servant completes thirty years of "qualifying service" or attains fifty years of age or any date thereafter which is to be specified in the notice. Vide circular dated 27.04.1979 as referred above was issued under which the rule was relaxed and the qualifying service only of 20 years instead of 30 years was stipulated in the said Circular and thereafter the government servant had an option to give a notice and there is a provision that if nothing adverse is contemplated under clause KA and KHA of the circular by the competent authority prior to the date of expiry of the period of notice, the retirement shall be deemed to come into effect from the date mentioned in such notice.
21. The word "qualifying service" requires interpretation herein taking into consideration the ground agitated on behalf
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LPA No.148/2021of the State that the qualifying service means the actual service rendered by one or the other public servant.
22. The Hon'ble Apex Court in the case of United Bank of India vs. Pijush Kanti Nandy, (2009) 8 SCC 605, the Pension Rules with regard to an employee of the Bank were considered, wherein it has been held that qualifying service would be the actual service put in by the employee. Para-26 of the said judgment is being reproduced hereinbelow:-
"26. Definition of "qualifying service" is restrictive in nature. It uses the word "means" and not "includes" or "means and includes". Thus, the construction of "qualifying service" must ordinarily be kept confined to the service rendered while on duty. He may be in service even otherwise although not rendering any duty. Those exigencies of situation are covered by the other types of cases which would come within the purview thereof. A person who is not in service cannot be said to be entitled to the benefit thereof. The term "otherwise" should be read ejusdem generis. The term "otherwise" in the context of "the Regulations" should be construed so that it can become a meaningful one. For the said purpose, the employee concerned was required to be in service. It is not possible to hold in absence of any express words that the eligibility criteria laid down in the Regulations for obtaining the benefit of pension i.e. the qualifying service should be construed in such a manner that a person even not in service would be deemed to be in service. The statute does not raise a legal fiction. A strict construction of the term
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"qualifying service" therefore, in our opinion, would not be appropriate."
23. The "qualifying service", therefore, means that the total length of service rendered by one or the other public servant. The same can also be taken aid from the provision of pension rule either of the Central Pension Rule or the State Pension Rule, wherein, the provision has been made that after completion of 10 years of qualifying service, the public servant whether working in the State or the Union, will be entitled to get the pensionary benefit.
24. The qualifying service in the matter of grant of pension is being construed that the period of service rendered by one or the other employee. Even in course of period of qualifying service, if one or the other employee has been found to be in unauthorized absence in absence of any punitive measure taken by the appointing authority, the said period in no stretch of imagination can be excluded from the total length of service, otherwise, it will mean that without initiating the proceeding or without having any order under the authority of law of any competent authority, the right of pension of a pensioner will be denied. Therefore, the "qualifying service" means that the total length of service rendered by one or the other public servant.
25. Herein, it is alleged that the writ petitioner was un- authorized absent, based upon that, he was also put under suspension.
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LPA No.148/2021
26. But, in the instant case it appears that no departmental proceeding had been initiated against the writ petitioner for unauthorized absence and as such, there is no decision of the authority with respect to the punitive measure decided to be taken against the appellant on account of unauthorized absence of the writ petitioner.
27. The question, therefore, would be even accepting that the writ petitioner was in unauthorized absence but if the authority has taken no decision of initiating the departmental proceeding and in absence thereof, there is no order passed by the competent authority so as to treat the aforesaid period to be unauthorized absence and in absence thereof, it would not be proper for the appointing authority to treat the said period as an unauthorized absence causing stigma or detrimental to the interest of the concerned public servant. Otherwise, if the same will be allowed, the State without initiating the departmental proceeding in a case of unauthorized absence will be said to inflict the punishment upon the concerned public servant, which cannot be said to be just and proper.
28. The other reason is also that unless the competent appointing authority will initiate departmental proceeding on account of the unauthorized absence leading to an inquiry so as to provide opportunity of hearing to the concerned public servant in order to come to the conclusion as to whether unauthorized absence for which the departmental proceeding
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LPA No.148/2021has been initiated is willful or without any wish of the concerned employee, rather, due to some compelling circumstances, the reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Krushnakant B. Parmar vs. Union of India, (2012) 3 SCC 178, wherein, the Hon'ble Apex Court while dealing with the issue of unauthorized absence in a case of departmental proceeding has been pleased to hold that in a case of unauthorized absence if the absence is without any wish or the reason beyond the control of the concerned public servant, then, such absence cannot be said to be unauthorized, for ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:
"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation
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of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty."
29. Thus, the law as has been settled in the case of Krushnakant B. Parmar v. Union of India (Supra) that in a case of unauthorized absence which is a gross misconduct, a finding is required to be given with respect to the absence said to be willful. The aforesaid judgment has subsequently been followed in the case of Chennai Metropolitan Water Supply and Sewarage Board vs. T.T. Murali Babu, (2014) 4 SCC 108 as would appear from paragraphs-22 and 23 thereof. For ready reference, the said paragraphs are being referred as under:--
"22. The learned counsel for the respondent has commended us to the decision in Krushnakant B. Parmar v. Union of India [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] to highlight that in the absence of a finding returned by the inquiry officer or determination by the disciplinary authority that the unauthorised absence was wilful, the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority. In the said case, the question arose whether "unauthorised absence from duty"
did tantamount to "failure of devotion to duty" or "behaviour unbecoming of a government servant"
inasmuch as the appellant therein was chargesheeted for failure to maintain devotion to duty and his behaviour was unbecoming of a government servant. After adverting to the rule position the two Judge Bench expressed thus :
(SCC pp. 181-82, paras 16-18)
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"16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
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23. We have quoted in extenso as we are disposed to think that the Court in Krushnakant B. Parmar case [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] has, while dealing with the charge of failure of devotion to duty or behaviour unbecoming of a government servant, expressed the afore stated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is wilful. On an apposite understanding of the judgment Krushnakant B. Parmar case [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against
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the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorised absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is wilful even if the employee fails to show the compelling circumstances to remain absent."
30. It needs to refer herein that the Co-ordinate Division Bench of this Court in L.P.A. No. 520 of 2019 has also dealt with the issue as to under which circumstances rendering of service will construed to be unauthorized absence, wherein it has been held that in all the cases the delinquent has not rendered his service the same will not be treated to be unauthorized absence rather the unauthorized absence will only be said to be unauthorized if the delinquent employee has not discharged the duty on his own will but the said principle will not be applicable due to compelling circumstances or laches committed on the part of the State or its functionary, the concerned employee has not discharged his duty.
31. Therefore, in order to reach to the conclusion, as to whether, the unauthorized absence is willful or without any wish and beyond the control of the concerned public servant, the inquiry is necessary.
32. As such, in absence of any inquiry there cannot be any presumption that there is break or discontinuity in service of the concerned employee otherwise the same will be treated to
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LPA No.148/2021be imposition of the punishment without initiating any departmental proceeding so as to provide adequate and sufficient opportunity to the concerned public servant.
33. The further admitted fact herein is that the writ petitioner sometime in the month of July, 2007 has made an application for separation from service on voluntary retirement. The said application admittedly has been received in the office of the concerned competent authority but no decision has been taken, rather, the decision has been taken after lapse of about 12 years by rejecting the claim of the writ petitioner.
34. The learned Single Judge has considered the aforesaid aspect of the matter that rejection of the application of voluntary retirement after lapse of 12 years that too without any cogent reason cannot be said to be justified and by that time, the writ petitioner had already allowed to be remain in service much than the period of 20 years.
35. Learned counsel appearing for the State of Jharkhand has tried to impress upon the Court that the writ petitioner admittedly was on unauthorized absence and as such, the unauthorized absence may be construed to be break in service.
36. But, this Court in view of the discussion made hereinabove is not in agreement with the submission made on behalf of the learned counsel for the State.
37. Further, in the provision of Rule 74 of the Service Code, the reference of the word "qualifying service" is there and there
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LPA No.148/2021is no addition with the word "qualifying service" that the service be in continuation or the regular service, hence, the "qualifying service" means that the length of service.
38. Admittedly herein, the writ petitioner has completed 20 years of service said to be qualifying service and if in such circumstances, the application has been made for separation by virtue of getting the voluntary retirement, the same cannot be said to be unjust and improper.
39. Further, the question also arises herein for consideration as to what is the true impact and purport and the scope of Rule 74(b) of Pension Rules and the Circular dated 27.4.1979 as to whether the voluntary retirement sought by the employee becomes effective on expiry of the period of notice served to the employee or any order of acceptance is a condition precedent for giving effect to the request of the employee.
40. In the aforesaid context, it needs to refer herein the judgment of the Hon'ble Apex Court rendered in the case of State of Haryana vs. S.K. Singhal, (1999) 4 SCC 293 wherein, the Hon'ble Supreme Court has discussed all the earlier decisions in its judgment. On the factual aspect, the respondent was a Medical Officer and he served a three months' notice on 16.8.1995 seeking voluntary retirement under Rule 5.32B of the Punjab Civil Services Rule after completing 25 years of qualifying service. The petitioner-State did not serve any rejection order of the said notice or any adverse
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LPA No.148/2021communication during the said period. Subsequently, on 13.12.1995, he was informed that his request could not be considered, hence, the controversy arose where the respondent in that case should be treated to be retired or it had not been retired, what would be the effect of the said rules. In the relevant rule 5.32B of the Punjab Civil Services Rule there is a provision, where the appointing authority does not refuse to grant the permission for retirement from the expiry specified as in the sub-section-1, the retirement shall become effective from the date of expiry of the said period. Thus, it is evident that this Rule is identical to the Rule of the State of Bihar (applicable in the State of Jharkhand). The Hon'ble Apex Court while dealing with the controversy has held at Paragraphs-13, 14,16,18 and 20 in the above said judgment, as under:
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 Sangma case [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] by the relevant rules and there is no 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 [(1978) 2 SCC 202 : 1978 SCC (L&S) 208] and as in Sayed Muzaffar Mir case [1995 Supp (1) SCC 76 : 1995 SCC (L&S) 256] 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
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retirement not coming into effect on the expiry of the period specified. What is further needed is that 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 [(1978) 2 SCC 202 : 1978 SCC (L&S) 208] and in Sayed Muzaffar Mir case [1995 Supp (1) SCC 76 : 1995 SCC (L&S) 256] 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.
14. Before referring to the second category of cases where the rules require a positive acceptance of the notice of voluntary retirement and communication thereof, it is necessary to refer to the decision of this Court in Baljit Singh (Dr) v. State of Haryana [(1997) 1 SCC 754 : 1997 SCC (L&S) 313] strongly relied upon by the learned counsel for the appellants and to Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia [(1997) 4 SCC 280 : 1997 SCC (L&S) 941] . The former case arose under Rule 5.32(B) of the Punjab Civil Services Rules. That rule extracted earlier contains an express provision in the proviso to sub- rule (2) that the retirement takes effect automatically if refusal is not communicated within 3 months. In that case, when the employee gave notice for voluntary retirement on 20-9-1993, criminal cases were pending against him. After expiry of 3 months, on 25-2-1994, the competent authority declined to accept the notice. A two-Judge Bench of this Court, however, held that the voluntary retirement did not come about automatically on the expiry of the notice period but that it could take effect only upon acceptance of the notice by the Government and that the acceptance must also be communicated and till then the jural relationship of master and servant continues. This Court referred only to the decision of the two-Judge Bench in Sayed Muzaffar Mir case [1995 Supp (1) SCC 76 : 1995 SCC (L&S) 256] and stated that that case was to be confined to its own facts.
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LPA No.148/2021The two-Judge Bench of this Court in Baljit Singh case [(1997) 1 SCC 754 : 1997 SCC (L&S) 313] did not notice that there were two three-Judge Bench cases in Dinesh Chandra Sangma [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] and Shelat [(1978) 2 SCC 202 : 1978 SCC (L&S) 208] taking the view under similar rules that a positive order was to be passed within the notice period withholding permission to retire and that the said order was also to be communicated to the employee during the said period. By stating that an order of acceptance of the notice was necessary and that the said acceptance must be communicated to the employee and till that was done the jural relationship continued and there was no automatic snapping thereof on the expiry of 3 months' period, the two-Judge Bench, in our view, has gone contrary to the two three-Judge Bench cases which were not brought to its notice. In the above circumstances, we follow the two three-Judge Bench cases for deciding the case before us.
16. We then come to the second category of cases where the rules require that an order of acceptance of notice be passed to make the voluntary retirement effective. In HPMC v. Suman Behari Sharma [(1996) 4 SCC 584 :
1996 SCC (L&S) 1056] it will be noticed, the principle in Dinesh Chandra Sangma case [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] was accepted but the case was distinguished on the ground that Bye-law 3.8(2) in HPMC case [(1996) 4 SCC 584 : 1996 SCC (L&S) 1056] provided differently and that under that bye-law an employee could be permitted at his request to retire on completion of 25 years' service or 50 years of age. Para (5) of Bye-law 3.8 stated as follows:
(SCC p. 588, para 7) "(5) Notwithstanding the provision under para (2) above, the corporation employees who have a satisfactory service record of 20 years may also seek retirement from the service of the Corporation after giving three months' notice in writing to the appropriate authority. Persons under suspension would not be retired under this clause unless
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proceedings of the case against them are finalised...."
(emphasis supplied) While clause (2) speaks of 25 years' service, clause (5) speaks of 20 years' service.
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 sub-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 Sangma case [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] 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.
20. So far as the plea of the State in regard to absence from duty during the notice period is concerned, the High Court has shown that it is unsupportable on facts. In any event, in view of the express provision in the proviso to sub-rule (2) of Rule 5.32(B) referred to above requiring communication of rejection within the notice period, the said allegations of absence even if true, cannot help the State."
41. From analysis of the above propositions of law, it is revealed that the voluntary retirement would fall in three categories. Firstly, whether the voluntary retirement is automatically comes into force on the expiry of the notice period. Secondly, whether the voluntary retirement comes into force on the expiry period unless an order is passed within the
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LPA No.148/2021notice period withholding the permission to retire and thirdly, whether the voluntary retirement does not come into force unless permission to this effect is granted by the controlling authority.
42. Further It is also admitted herein that the said Circular dated 27.04.1979 is not derogation of the general rule and it empowers the authorities to grant the benefit of the voluntary retirement to those employees who had attained the qualifying service of 20 years. Thus, the qualifying service was relaxed from 21 years on duty and 25 years service to 20 years service by the said Circular. The scope of the said rule 74(b) Bihar Pension Rule was made wider and it cannot be said that Circular is in derogation of the rule. As a matter of fact, it is in addition to the rule 74(b).
43. From perusal of Para-7 of the said Circular, the general rule is provided that the appointing authority will grant the permission/ approval in all cases except the case mentioned in (ka) and (kha) of the Circular. Both the contingencies enumerated as (ka) and (kha) has been mentioned herein in preceding paragraph. The said Circular is clear that the said refusal must be within the period of the notice, not beyond that.
44. Now adverting to facts of the case the State authority while keeping the application pending for 12 years and thereafter, rejecting it on the ground that the writ petitioner has not
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LPA No.148/2021completed 20 years of qualifying service and as such, the same is not in consonance with the statutory provision as contained under Rule 74(b) of the Jharkhand Service Code read with the circular dated 27.04.1979.
45. But since we have come to the conclusion that the qualifying service means the total period of service and as such, whatever view has been taken by the State by passing the impugned order, the same according to the considered view of this Court, cannot be said to be just and proper.
46. The learned Single Judge has considered the 12 years of service as on 09.08.1999, the day when the writ petitioner has been granted 1st upgradation under the Assured Career Progression Scheme and thereafter the application since has been filed in the month of July, 2007 hence found the service of the writ petitioner to be the period of 20 years.
47. This Court, after having discussed the aforesaid fact and adverting to the finding recorded by the learned Single Judge, has found therefrom that the learned Single Judge has taken into consideration the aforesaid aspect of the matter.
48. Before parting with the order, it is the bounden duty of this Court to consider the judgment as has been relied upon the learned State Counsel rendered by the Hon'ble Apex Court in the case of State of Punjab Vrs. Dr. P.L. Singla (supra).
49. It needs to refer herein that the applicability of the judgment which depends upon the applicability based upon the
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LPA No.148/2021facts of the individual case, since, the judgment is not having the universal applicability, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Dr. Subramanian Swamy v. State of Tamil Nadu, (2014) 5 SCC 75, wherein, at paragraph-47, it has been held as under:--
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
50. This Court has considered the said judgment upon which reliance has been placed by the learned counsel for the appellant, i.e., State of Punjab Vrs. Dr. P.L. Singla (Supra) and as per the factual aspects the respondent employee is a doctor in the service of the appellant State of Punjab. The respondent joined duty on 17-8-1991, but unauthorisedly absented himself from 1-6-1992. As he was absent for nearly five years, the Health and Family Welfare Department issued a charge-sheet under heading of the two charges were : (a) absenting from duty deliberately from 1-6-1992; and (b) disobeying the orders of official superiors.
51. An enquiry was held into the said charges. In regard to the first charge, the enquiry officer found that the respondent had, in fact, absented himself unauthorisedly from 1-6-1992 to 17-
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LPA No.148/202110-1997. But he accepted the two explanations given by the respondent and concluded that the absence was under
compelling circumstances. The enquiry officer also held that the second charge was not proved.
52. The disciplinary authority did not agree with the enquiry report and accordingly proposed to hold the respondent guilty of the two charges. A show-cause notice dated 1-4-1999 was issued to the respondent enclosing a copy of the enquiry report and the dissent note. The Governor of Punjab by order did not accept the findings in the enquiry report and imposed a punishment of withholding of five increments with cumulative effect. By a subsequent order dated 25-1-2001, issued in continuation of the order imposing punishment, the Governor of Punjab accorded extraordinary leave to the respondent for the period 1-6-1992 to 17-10-1997.
53. The respondent filed a suit in the Court of the Civil Judge, Junior Division, Bhatinda for a declaration that the order imposing punishment was null and void and for consequential reliefs. The trial court by judgment decreed the suit and declared that the order imposing punishment was void and that the respondent was entitled to all consequential benefits with interest at 12% p.a. from the date of suit. The appeal filed by the State was dismissed by the first appellate court on 16-3- 2005. The second appeal filed by the State was also dismissed on 20-1-2006. The said judgment of the High Court affirming
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LPA No.148/2021the decisions of the trial court and first appellate court is challenged in this appeal by special leave before the Hon'ble Apex Court.
54. The Hon'ble Apex Court, while taking into consideration that there was no application for leave for the period 31-12- 1992 till 17-10-1997and also there was no explanation as to why respondent employee remained absent unauthorisedly for more than five years, found the charges proved and observed that the punishment imposed was not disproportionate to the gravity of the misconduct.
55. The Hon'ble Apex Court further held that whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct stood condoned. The second is to treat the unauthorised absence as misconduct, hold an enquiry and impose a punishment for the misconduct. The aforesaid observation which has been made at paragraphs 11 & 12 of the said judgment are being quoted as under:
11. Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer.
The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct stood condoned. The second is to treat the
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LPA No.148/2021unauthorised absence as a misconduct, hold an enquiry and impose a punishment for the misconduct.
12. An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorised absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorised absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorised absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline.
56. Now adverting to the fact of the instant case, it is not the case of the State that any departmental proceeding has ever been initiated in order to deal with the issue of unauthorized absence of the writ petitioner as there is no pleading about the enquiry for the alleged unauthorised absence of the respondent/petitioner and only there is statement on behalf of employer/appellant that the employee/respondent was suspended, therefore, the said judgment relied upon by the learned counsel for the State rendered by the Hon'ble Apex Court in the case of State of Punjab vs. Dr. P.L. Singla (supra) is not applicable in the facts and circumstances of the instant case.
57. This Court, considering the aforesaid aspect of the matter and as per the discussion made hereinabove, is of the view that the order passed by the learned Single Judge, cannot be said to
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LPA No.148/2021suffer from an error.
58. Accordingly, the instant appeal fails and is dismissed.
59. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) I agree (Subhash Chand , J.) (Subhash Chand, J.)) A.F.R. Rohit/
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LPA No.148/2021