1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5807/1994 Ramchandra Gautam vs. The Registrar, Cooperative Societies & Anr. Date of order :: 15th December, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri S.P. Sharma for the petitioner. Shri B.L. Avasthi, Addl. Govt. Counsel for the respondents. ****** REPORTABLE This writ petition has been filed by the petitioner Ram Chandra Gautam with a prayer that he should be declared to have retired from service with effect from 17.6.1993 on expiry of period of three months from the date of notice dated 17.3.1993 served on him by the respondents under Rule 244(1) of the Rajasthan Service Rules, 1951 (for short- RSR) and enquiry proceedings initiated by the disciplinary authority against him pursuant to charge sheet dated 30.7.1993 and the penalty of removal from service awarded to the petitioner vide order dated 28.10.1996 be quashed and set aside as being illegal and unconstitutional and that the respondents be directed to pay to the petitioner all pensionary benefits and the 2 arrears of the salary for the period of suspension from 2.5.1990 to 25.2.1993 with interest at the rate of 18% per annum. Factual matrix of the case is that petitioner was appointed with the respondents on 30.4.1965 on the post of Assistant Inspector. He was placed under suspension vide order dated 2.5.1990 by the Registrar of the Co-operative Societies in contemplation of disciplinary proceedings. The petitioner was not served with any charge sheet for a long period of time and therefore he made representation to the respondents against his continued suspension. The respondents by their order dated 25.2.1993 revoked the order of suspension and directed that the decision with regard to balance salary and allowance etc. for the period of suspension shall be taken after finalization of the disciplinary matter. The petitioner challenged this order by filing the S.B. Civil Writ Petition no.1719/1993 which was admitted on 27.3.1993. According to petitioner, he out of utter frustration and exasperation submitted application seeking voluntary 3 retirement to the respondents on 14.3.1993 and when nothing was done, he submitted another application on 17.3.1993 to the Registrar, Co-operative Societies. In this application, the petitioner prayed for his voluntary retirement under Rule 224(1) of RSR and submitted that he be granted leave for the period from 14.3.1993 to 14.6.1993 against the earned leave for which he has separately submitted an application to Registrar, Cooperative Societies, Ajmer. When nothing was heard, the petitioner by his letter dated 14.6.1993 informed the respondents that on expiry of period of three months, he would automatically retire from service as envisaged by Rule 244(1) of RSR and would thereafter stop attending his duties. The petitioner however was served with a charge sheet dated 30.7.1993 on the charges that when he was working as Administrator, Jai Mahal Grah Nirman Sahakari Samiti, he committed irregularities in issuing wrong allotment letters and granting permission for raising unauthorised constructions. The petitioner protested against the issuance of this charge sheet by 4 his application dated 11.1.1994 and submitted that since he already stood retired upon expiry of period of notice of three months, there was no question of any disciplinary enquiry being held against him now in relation to the incident which was older than four years. Even then by way of abundant caution, petitioner submitted reply to the charge sheet on 30.6.1994 and prayed for dropping of the same. The disciplinary authority however by notice dated 10.8.1994 informed the petitioner that Joint Secretary, Cooperative Societies has been appointed as Enquiry Officer and required him to appear before him. This notice was received by wife of the petitioner who at the relevant time had gone to pilgrimage. He by application dated 17.9.1994 requested the enquiry officer for deferring the matter till dushhera. Petitioner thereafter submitted another representation on 7.10.2004 to the Registrar, Cooperative Societies, requesting him to drop the disciplinary enquiry. During the pendency of the present writ petition, the enquiry officer submitted his report and 5 the disciplinary authority even though took note of the pendency of this enquiry but since there was no interim order of stay passed by this Court, passed the order of removal on 28.10.1996, which has also been assailed by amending the writ petition. It is against the backdrop of these facts that the present writ petition has been filed with the prayers referred to above. I have heard Shri S.P. Sharma, learned counsel for the petitioner and Shri B.L. Avasthi, learned Additional Government Counsel for the respondents. Shri S.P. Sharma, learned counsel for the petitioner has argued that the petitioner by his two applications respectively submitted on 14.3.1993 and 17.3.1993 served upon the respondents notice of three months as required by Rule 244 of RSR seeking voluntary retirement. The respondents neither conveyed approval nor even rejection of his prayer for voluntary retirement. The petitioner on expiry of period of three months, therefore, informed the respondents by letter dated 14.6.1993 that he would be deemed to have 6 automatically retired from service as per Rule 244(1) with effect from 14.6.1993. Even if this period is counted from the second notice, the petitioner can at the maximum be treated to have retired on 14.3.1993. The respondents had no legal authority thereafter to serve upon him any charge sheet and subject him to disciplinary proceedings. It was argued that the charge sheet upon the petitioner was served for an incident which related to the period between 9.10.87 and 29.6.89 when the petitioner was working as Administrator of a Cooperative Societies. The cause of action for issuance of the charge sheet arose more than four years before the initiation of the departmental enquiry. As per Rule 170 and 170A of Rajasthan Service Rules, 1951, a charge sheet against a government servant could be issued only during the period of subsistence of service. Once the petitioner stood retired, no such charge sheet could be issued. In any case, charge sheet against a retired government servant could be issued with the approval of the Governor of the State but there is an additional rider 7 thereto also that charges should not be related to an event which took place more than four years before the initiation of the departmental proceedings. In the present case not only the specific sanction of the Governor was not obtained but the period for which alleged irregularities pertained relates to the year 1987 to 1989 whereas the charge sheet was issued on 13.7.1993 which is more than four years ago. The charge sheet, even otherwise, was wholly incompetent. Shri S.P. Sharma, the learned counsel for the petitioner submitted that even after the petitioner was served with the charge sheet on the above referred to allegatinos, the respondents proceeded to pass the order of removal which is nullity in view of the fact that the petitioner stood retired by operation of law. Shri S.P. Sharma in support of his arguments relied on the judgement of Supreme Court in Union of India & Ors. vs. Sayed Mazaffar Mir-1995 Suppl. (1) SCC 76, State of Haryana & Ors. vs. S.K. Singhal-(1999) 4 SCC 293 and division bench judgement of this Court in State of 8 Rajasthan vs. R.P. Agarwal & Ors.-2006 (3) WLC (Raj.) 620. Shri B.L. Avasthi, learned Additional Government Counsel opposed the writ petition and submitted that the issue with regard to holding disciplinary proceeding against the petitioner was under consideration of the departmental authorities even when he was placed under suspension. Since charges could not be timely framed and charge sheet had not been served upon the petitioner, he was reinstated but in the order of reinstatement, it was clearly stipulated that the decision with regard to difference of salary for the period of suspension shall be taken at the time of conclusion of the disciplinary proceeding. It was argued that no representation of the petitioner was pending with the respondents for grant of voluntary retirement. The charge sheet was duly served upon the petitioner. Merely because wife of the petitioner received the notice and not the petitioner himself, would not mean that service of notice was not effected upon the petitioner. There were grave and serious charges against the 9 petitioner. The petitioner absented from enquiry considering himself to have been voluntary retired which cannot be presupposed in the face of pending disciplinary proceedings. It was contended that in the facts of the case, there was no question of petitioner having automatically retired. It is therefore prayed that the writ petition be dismissed. I have given my anxious consideration to the rival submissions and perused the material forming part of the record. Although it is true that the petitioner was placed under suspension by order dated 2.5.1990 in contemplation of the enquiry, but the fact remains that he was reinstated subsequently vide order of the Registrar dated 25.2.1993 precisely for the reason that the respondents could not in the meantime even frame the charge sheet in the disciplinary matter. Merely because the order by which the suspension was revoked states that revocation of suspension would not adversely affect the disciplinary proceedings could not be taken as pendency of disciplinary enquiry. The disciplinary 10 enquiry can be said to have become pending against an employee only upon service of the charge sheet, is well settled proposition of law. Reference in this connection is made to the observations of the Supreme Court in Union of India & Ors. vs. K.V. Jankiraman & Ors.-1991(4) SCC 109. Those observations were made in the context of the invocation of sealed cover procedure but analogy thereof would equally apply in the context of the present case where similar argument is being raised by the respondents. But answering that question perhaps may not be necessary for decision of the present controversy because even if it is assumed that the respondents decided to initiate disciplinary enquiry against the petitioner or for that matter, it had been decided to serve upon him the charge sheet, this could have at the maximum furnished a reason to the respondents to withhold the permission to voluntary retire him from service by rejecting his request. The respondents did not in positive manner either reject the request of the petitioner or otherwise withhold the permission to voluntary retire 11 him from service. Rule 244(1) of RSR inter alia provides as under:- “244(1) Optional retirement on completion of 20 years qualifying service:- (a) A Govt. Servant may, after giving at least three months' previous notice in writing to the appointment authority, retire from service on the date on which he completes 20 years of qualifying service or attains the age of 45 years whichever is earlier or any date thereafter to be specified in the notice: Provided that it shall be open to the appointing authority to withhold permission to a Govt. Servant: (i) who is under suspension; (ii) in whose case disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service; (iii) in whose case prosecution is contemplated or may have been launched in a court of law; (b) a Government servant who has been 12 given notice for seeking retirement under clause (a) of this sub-rule, may presume acceptance of the notice of retirement and the retirement shall be effective in terms of the notice automatically unless an order in writing to the contrary has been issued by the Competent Authority and served upon the Government servant before the expiry of the period of the notice. (c) If a Government servant seeks retirement under this sub-rule while he is on leave not due, without returning to duty, the retirement shall take effect from the leave salary paid in respect of such leave shall be recovered from him. (d) A Government servant who seeks voluntary retirement under clause (a) of this sub-rule shall be entitled to a weightage of a 5 years qualifying service which shall be given as an addition to the qualifying service actually rendered by him. The grant of weightage upto 5 years shall, however, be subject to the following conditions.” The perusal of the aforesaid Rule would indicate that it was not obligatory upon the government to permit the petitioner to 13 voluntary retire after he completed the qualifying service or age and for the reasons enumerated in clauses (i), (ii) and (iii), supra, the competent authority had the discretion to reject such a request. But then, the facts of the case clearly show that the disciplinary authority in the present case did not decide to act in terms of proviso to Rule 244(1) of RSR. A division bench of this Court in R.P. Agarwal, supra in somewhat similar circumstances where the argument was raised that inaction on the part of the government to withhold the permission by rejecting the prayer for voluntary retirement would result in automatic retirement of the government servant upon expiry of notice period, rejected contra arguments of the government by observing as under: “______xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx The government servant is not supposed to wait till the State Government communicates its decision on the request, and till that is done, the request remains in abeyance, and he continues in the employment of the Government. The fact that the Government servant is under 14 suspension or is facing enquiry or a proceeding is contemplated against him are grounds on which the request can be turned down but it does not mean that the Government can withhold its decision. It may withhold permission, but it cannot withhold its decision so as to make the rule inapplicable and render the right of the government servant infructuous.“ The Supreme Court in B.J. Shelat vs. State of Gujarat-(1978) 2 SCC 202 while considering an identical Rule 161 of the Bombay Civil Services Rules, 1959 which enabled the appointing authority to withhold permission to retire the government servant against whom departmental proceedings are pending or contemplated and where similar argument was raised on behalf of the appointing authority that not granting permission to voluntary retire would tantamount to withholding such permission, it was observed as under: “We are not able to read the meaning of the word withhold as indicating that in the absence of a communication it must be understood as the permission having been withheld.” The Supreme Court further on the scope 15 of Rule 161 observed as under: “Construing scope of the rule the Court observed: “The words “It shall be open to the appointing authority to withhold permission” would indicate that the appointing authority has got an option to withhold permission and that could be exercised by communicating its intention to withhold permission to the Government servant.” xx xx xx xx “For the proviso to become operative, it is necessary that the government should not only take a decision but communicate it to the Government servant. It is not necessary that the communication should reach the Government servant.” xx xx xx xx “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.” Considering the similar proviso contained in Rule 1801 of the Railway Establishment Code, the Supreme Court in Union of India & Ors. vs. Sayed Mazaffar Mir, supra observed as under: 16 “There are two answers to this submission. The first is that both the provisions relied upon by the learned counsel would require, according to us, passing of appropriate order, when the government servant is under suspension (as was the respondent), either of withholding permission to retire or retaining of the incumbent in service. It is an admitted fact that no such order had been passed in the present case. So, despite the right given to the appropriate / competent authority in this regard, the same is of no avail in the present case as the right had not come to be exercised. We do not know the reason(s) thereof. May be, for some reason the authority concerned thought that it would be better to see off the respondent by allowing him to retire. The second aspect of the matter is that it has been held by a three-Judge Bench of this Court in Dinesh Chandra Sangma v. State of Assam ((1977) 4 SCC 441), which has dealt with a pari material provision finding place in Rule 56(c) of the fundamental Rules, that where the government servant seeks premature retirement the same does not require any acceptance and comes into effect on the completion of the notice period. This decision was followed by another three Judge Bench in B.J. Shelat v. 17 State of Gujarat ((1978) 2 SCC 202.” In State of Haryana & Ors. vs. S.K. Singhal, (1999) 4 SCC 293, the decisions in B.J. Shelat and Sayed Muzaffar Mir were noticed and explained as under: “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 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 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 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 withholding of permission.” 18 In S.K. Singhal case (supra) and, later, in Tek Chand v. Dile Ram (2001) 3 SCC 290, which followed the decision in S.K. Singhal and earlier cases referred to above, the Supreme Court categorized cases of voluntary retirement into three categories. It would be appose to quote their Lordships in Tek Chand from page 311 of the report: “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 view of the settled proposition of law as aforenoticed, the consequences of omission on the part of the competent authority in not rejecting the prayer of the 19 petitioner so as to withhold the permission to voluntary retire him from service, would be that immediately upon expiry of period of three months from the date of notice dated 14.3.1993 i.e. on 14.6.1993, the petitioner would be deemed to have automatically retired from service by operation of law. Once the petitioner stood retired from service, the relationship of master and servant between the petitioner and the respondents would get snapped except in so far as it is saved for limited purposes pursuant to the contract of appointment or the statutory rules. In the present case, Rule 170 of the RSR granted a limited power to the appointing authority to proceed against a retired government servant in disciplinary proceedings subject to the condition that this could be done only in relation to an event which is not more than four years old and that too with the permission of the Governor of the State. In the present case, none of these requirements were met with. Thus, service of charge sheet dated 30.7.1993 upon the petitioner was void ab initio and nullity in law. Such a charge 20 sheet and the subsequent action of the petitioner in absenting from the disciplinary enquiry held pursuant thereto, would be inconsequential in so far as petitioner is concerned. The aforesaid charge sheet even otherwise was wholly illegal in the face of the relevant Rules which govern the service of charge sheet on a retired government servant, which at the material time were Rule 170 and 170A of the RSR. These rules are quoted hereunder for the facility of reference: Rule 170:- Recoveries of losses from the pension- The Governor further reserve to him self the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specific period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement:- (a) provided that such departmental proceeding, if instituted while the officer was in service, whether before 21 his retirement or during his re- employment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (b) such department proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment,- (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re- employment, shall be instituted in respect of a cause of action while arose or an event which took place more than 4 years before such institution; and 22 (d) The Rajasthan Public Service Commission shall be consulted before final orders are passed. 170-A (1) Where any departmental or Judicial proceeding is instituted under rule 170 or where a departmental proceeding is continued under clause (a) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under suspension on the date of retirement upon the date immediately preceding the date on which he was placed under suspension; but no gratuity or death- cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon. (2) Payment of provisional pension made under sub-rule (1) shall be adjusted against the final retirement benefits sanctioned to such officer upon conclusion of the aforesaid 23 proceeding but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.” A perusal of the aforesaid Rules would indicate that the condition precedent for service of charge sheet upon a retired government servant is that if the departmental proceedings have not been instituted when the government