WP(C) No. 146 & 158/2008 Page 1 of 30 IN THE HIGH COURT OF DELHI AT NEW DELHI +WP(C) No.146/2008 and 158/2008 Date of Decision: 30.05.2008 #Lt. Governor & Anr. ....Petitioners in WP(C) Nos.146 & 158/2008 ! Through: Ms.Avnish Ahlawat with Ms.Latika Chaudhary and Ms.Nidhi Gupta Versus $Sh.Dharam Vir Singh ....Respondent in WP(C) No.146/2008 Sh.S.R. Goyal ….Respondent in WP(C) No.158/2008 ^ Through Mr.P.P. Khurana, Sr. Advocate Mr.Vikram Saini CORAM :- *THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MR. JUSTICE J.R. MIDHA 1.Whether Reporters of Local papers may be allowed to see the Judgment? 2.To be referred to the Reporter or not? 3.Whether the judgment should be reported in the Digest? A.K. SIKRI, J. : 1. In both these writ petitions, common question of law has come up for consideration which touches on the interpretation of Rule 48 of the CCS(Pension) Rules, 1972 WP(C) No. 146 & 158/2008 Page 2 of 30 (hereinafter referred to as the „Pension Rules‟). This rule allows an individual to seek retirement on completion of 30 years of qualifying service. After the aforesaid qualifying service, a Government servant, who wishes to retire, can do so by giving three months notice in writing. The question, which arises for consideration, is as to whether Rule 48 vests the Government with any discretion to reject the permission to retire in certain circumstances or this rule has automatic effect of retiring the said Government servant after the expiry of three months period. The Tribunal has accepted the second alternative by impugned judgments dated 26.11.2007 and 7.11.2007 respectively. Though two separate judgments were given by two different Benches of the Tribunal in these two cases, since the answer to the question of law, as given by the Tribunal in these two judgments, is identical and having regard to the commonality of the issues involved, we had heard both the petitions together with a purpose to decide the same by a common judgment to avoid repetition of the legal principles. For better understanding of the legal issue involved, we are taking up the facts of WP(C) No.146/2008. WP(C) No. 146 & 158/2008 Page 3 of 30 WP(C) No.146/2008 2. The respondent in this case is Sh.Dharamvir Singh, who had joined the service under the Government of National Capital Territory of Delhi on 14.6.1976. He joined the service as a Lower Division Clerk (LDC). In 1979 he was promoted as Grade II (DASS/UDC). Thereafter, in 1990 he was promoted as Grade I (DASS). In this manner, he completed 30 years of service in June 2006. We may, however, point out that in the year 1997 he was charge-sheeted under Rule 14 of the CCS(CCA) Rules on the allegation that he had allowed a private person, namely, Sh.Madan Gulati to discharge official duty/work in his office for which punishment of reduction to lower post of Grade II (DASS) was inflicted on 26.7.2000. In November 2003, another memo was issued to him in view of observations of this Court passed in WP(C) No.6803/2000 concerning sale deed of property No. WZ-3539-A and WZ- 3540 in village Shakar Pur, Delhi, which was registered in 1995 in favour of the purchasers/parties by the respondent while functioning as Sub-Registrar, Janak Puri in spite of the fact that the property was on the land acquired by the DDA as far back as in 1966. This memo was thereafter followed by charge-sheet dated 18.10.2006. The respondent denied the WP(C) No. 146 & 158/2008 Page 4 of 30 charges and the departmental inquiry into the said charges was underway. At this juncture, on 9.7.2007 the respondent applied for voluntary retirement under Rule 48 of the Pension Rules. This request of the respondent was rejected by the petitioner on the ground that major penalty proceedings had been initiated against him and thus, disciplinary authority was of the view that he cannot be given voluntary retirement till the conclusion of the said disciplinary proceedings, which may lead to imposition of penalty of removal or dismissal from service. This rejection of the petitioner was challenged by the respondent by filing OA No.1773/2007 and the Tribunal has allowed the said OA declaring that after the lapse of three months‟ notice period under Rule 48 of the Pension Rules the respondent is no more in Government service and directed that retirement benefits be extended to him. It is in this factual background that the question of law, which has come up for consideration, as already delineated in the beginning, namely, as to whether it was open to the Government to turn down the request of voluntary retirement made by the respondent under Rule 48 or such voluntary retirement automatically comes into effect after lapse of three months period. WP(C) No. 146 & 158/2008 Page 5 of 30 3. Before we proceed to discuss this issue, it would be apposite to first reproduce the text of this rule which reads as under:- “48. Retirement on completion of 30 years’ qualifying service (1) At any time after a Government servant has completed thirty years‟ qualifying service- (a) he may retire from service, or (b) he may be required by the Appointing Authority to retire in the public interest and in the case of such retirement the Government servant shall be entitled to a retiring pensions: Provided that- (a) a Government servant shall give a notice in writing to the Appointing Authority at least three months before the date on which he wishes to retire; and (b) The Appointing Authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months‟ pay and allowance in lieu of such notice. Provided further that where the Government servant giving notice under Clause (a) of the preceding proviso is under suspension, it shall be open to the Appointing Authority to withhold permission to such Government servant to retire under this rule.” WP(C) No. 146 & 158/2008 Page 6 of 30 4. From the reading of Rule 48 it is clear that when a Government servant completes 30 years of service, option is given to him to retire from service and at the same time the Appointing Authority is also empowered to retire him in public interest. Thus, on the completion of qualifying service both employee and employer are empowered to severe the employee-employer relationship. Proviso to this rule casts an obligation on the Government servant, in case he wishes to retire, to give three months notice before the date on which he wishes to retire. Similar obligation is imposed upon the Appointing Authority in case the Appointing Authority wishes to pass an order of retirement in public interest, i.e., giving of three months‟ notice. However, in so far as the employer is concerned, choice is also given to pay three months‟ pay and allowances in lieu of such notice. Second proviso puts a rider on the right of the employee to exercise his right to retire after completion of qualifying service and states that where the Government servant is facing suspension at the time when he submits such a notice for retirement, discretion is given to the Appointing Authority to withhold permission to such Government servant to retire under the said rule. To put it otherwise, in respect of those employees, who are WP(C) No. 146 & 158/2008 Page 7 of 30 under suspension, the permission of the Appointing Authority is to be obtained by such Government servants to retire under Rule 48A, which can be rejected as well. 5. The rule otherwise does not stipulate that there has to be a request for retirement, which has to be accepted by the Appointing Authority, which normally is the position in the case of resignation. When an employee submits a resignation, such resignation does not become effective unless it is accepted by the competent authority. Thus rule, on the other hand, deals with “Retirement” and gives choice to the Government servant to retire from service. Therefore, on fulfilling the conditions stipulated in the rule a Government servant is allowed to retire. These conditions are: (a) such a Government servant should have completed 30 years of qualifying service; (b) he should give a notice in writing to the Appointing Authority at least three months before the date on which he wishes to retire. It is clear that in the notice to be given a Government servant is even entitled to specify the date of his retirement which should be at least three months after the said notice is given so as to complete the requirement of three months‟ notice. WP(C) No. 146 & 158/2008 Page 8 of 30 6. Once the aforesaid conditions are fulfilled, the consequence contained in the said rule becomes operative, namely, the Government servant is permitted to retire from service. As mentioned above, in so far as reading of the rule is concerned, there is only one circumstance, as stipulated in the said rule, wherein permission can be withheld to such a Government servant to retire, i.e. when he is under suspension. If that is the position which emerges on the reading of the rule, can some other circumstances, which are not stipulated in the rule, be inserted and discretion be given to the Government to withhold the permission to a Government servant to retire in those circumstances. Learned counsel for the petitioners ventures to argue that such a discretion is omnipresent, notwithstanding what is contained in Rule 48 and therefore, for valid reasons like when a Government servant is facing inquiry and a charge- sheet is served upon him, he should not be allowed to retire. Such a course of action, according to her, is in public interest and gives right to the Government to refuse permission de hors the provisions of Rule 48. In order to develop this argument, Ms.Avnish Ahlawat, learned counsel appearing for the petitioners, sought to draw sustenance from some WP(C) No. 146 & 158/2008 Page 9 of 30 judgments of the Supreme Court, note whereof shall be taken hereinafter. 7. First judgment cited by the learned counsel for the petitioners was Himachal Pradesh Horticulture Produce Marketing & Processing Corporation Ltd. v. Suman Behari Sharma, (1996) 4 SCC 584 on the basis of which she argued that it has been categorically held that clause in the agreement does not confer on the employee a right to retire on completion of 25 years of service, after giving of three months‟ notice. It only confers on the employee a right to make a request to permit him to retire, which means that if the request is not accepted and permission is not granted, the employee will not be able to retire as desired by him. In order to understand the implication of this judgment, one will have to keep in view the exact wording of the clause provided in the agreement in that case. The Court in that case was concerned with Bye-law 3.8 of Himachal Pradesh Produce Marketing (HPMC), relevant portion whereof was to the following effect:- “(1) Every employee appointed to the service of the Corporation shall normally retire when he attains the age of 58 years WP(C) No. 146 & 158/2008 Page 10 of 30 but in special cases their services may be retained up to 60 years. (2) Notwithstanding anything contained in clause (1) any employee may be required by the competent authority, or permitted at his request, to retire from the service of the Corporation on completion of 25 years‟ service or at the age of 50 years whichever is earlier.” 8. The Court interpreted the expression “may be ….. permitted at his request, to retire from the service …..” and held that these words indicate that they do not confer on the employee a „right to retire‟ on completion of either 25 years of service or on attaining the age of 50 years. It only confers on the employee „a right to make a request to permit him to retire‟. In these circumstances, the Court held that if request is not accepted and permission is not granted, the employee will not be able to retire, as desired by him. The language in Rule 48 is totally different as already noted in detail above. This very distinction is drawn by the Supreme Court also in its later judgment in the case of State of Haryana v. S.K. Singhal, 1999 (3) All India Service Law Journal 194, in para 15 which reads as under:- “15. The employee applied on 26.11.1990 for voluntary retirement effective from 30.11.1990 and also requested for waiver of notice of 3 WP(C) No. 146 & 158/2008 Page 11 of 30 months. He did not report to duty right from 1.12.1990. Earlier on 12.12.1989, a charge-sheet was issued against him for certain acts of misconduct. On 26.12.1990 he filed a reply to the charge-sheet. On 22.8.1992 another charge- sheet was served for unauthorized absence and one more on 18.9.1992. On 30.9.1992 he approached the Tribunal contending that he stood retired on expiry of 3 months from notice, w.e.f. 26.2.1990. The Tribunal accepted the said plea. Reversing the order of the Tribunal, this Court held while distinguishing Dinesh Chandra Sangma‟s case and other similar High Court judgments, that Clause (2) of the Bye-law merely gave a right to make a request and the request would become effective only if permitted. Under Clause (2) of the Bye-law, it was a „right to a request‟ and not „a right to retire.‟ If the request was not accepted and permission was not granted, the employee could not claim that there was an automatic retirement on expiry of the period. Even under sub-clause (5) while it was true that there was a non-obstante clause, it was only an exception to Clause (2) to a limited extent, i.e. completion of 20 years satisfactory service (rather than 25 under Clause (2) but the grant of „permission‟ to the request seeking retirement was necessary even under the sub- clause (5) and was not dispensed with. If under Clause (2) a person who had put in 25 years had to „seek to retire‟ and had to be „permitted to retire‟, a person with only 20 years service under Clause (5) could not have been placed on a better footing, it was held. The Court emphasized (p. 588-589): “The words „seek retirement‟ in para 5 indicate that the right which is conferred by it is not the right to retire but a right to ask for retirement. The work „seek‟ implies a request by the employee and corresponding acceptance or permission by HPMC. Therefore, there cannot be automatic WP(C) No. 146 & 158/2008 Page 12 of 30 retirement or snapping of service relationship on expiry of three months period." On that basis, it was held that though the rejection of the request was not communicated within the notice period, there was no automatic retirement. There are no such provisions in the case before us.” 9. Next case to which the reference was made, is the judgment of the Apex Court in Dr. Baljit Singh v. State of Haryana, (1997) 1 SCC 754. It was argued that the Supreme Court, while taking into consideration the observations made by the Court in Union of India v. Sayed Muzarftfar Mir, 1995 Supp. (1) SCC 76, which judgment is being relied upon by the respondents herein, held that when serious offences are pending trial, it is open to the appropriate Government to decide whether or not the delinquent should be permitted to retire voluntarily or necessary disciplinary action should be taken under the law. Therefore, mere expiry of three months‟ period of notice does not put an end to the jural relationship of employer and employee between the Government and delinquent official. Government has a right to refuse permission to retire voluntarily. 10. As is clear from the above submission of the learned WP(C) No. 146 & 158/2008 Page 13 of 30 counsel for the petitioner herself, the issue involved in that case was as to whether mere expiry of the period of notice would automatically put an end to the jural relationship of employer and employee. In that case when the notice for voluntary retirement was given under Rule 4.32(B) of the Punjab Civil Services Rules, a criminal trial under Sections 465, 468, 471, 209, 406 IPC was pending against the employee. The request for voluntary retirement was rejected only after the expiry of notice. In these circumstances, the appellant had argued that on the expiry of three months‟ notice for voluntary retirement there was cessation of employer-employee relationship. Rejecting this plea the Court held that when serious offences are pending trial, it is open to the appropriate Government to decide whether or not the delinquent should be permitted to retire voluntarily or necessary disciplinary action should be taken under the law. The reading of the judgment would indicate that the exact language of Rule 5.32(B) of the Punjab Civil Services Rules under which the notice for voluntary retirement was given is not incorporated in the judgment. In the absence of the exact language of the said provision it is difficult to countenance the plea of the learned counsel for the WP(C) No. 146 & 158/2008 Page 14 of 30 petitioners. 11. Therefore, this judgment would not help the petitioners, more so when there is a direct judgment of the Supreme Court, as would be noticed hereafter touching on this aspect. Learned counsel for the petitioners also referred to the judgment of the Supreme Court in the case of Union of India v. A.N. Saxena, 1992(3) SCC 124 wherein the Court has observed: “It is surprising that in a disciplinary enquiry pertaining to serious charges, respondent was allowed to retire voluntarily under FR 56(k). It is not known whether it was duly considered whether his application for voluntary retirement ought to have been rejected in view of pending enquiry proceedings against him and seriousness of the charges levied against him.” Obviously, the Court was concerned, in the said judgment, with altogether different aspect. In that case voluntary retirement was accepted under FR 56(k) and the concerned employee was allowed to retire even when charge-sheet was served upon him showing that the charges were of serious nature. It is in these circumstances that this conduct of the employer accepting the request for voluntary retirement was deprecated. WP(C) No. 146 & 158/2008 Page 15 of 30 12. What is to be kept in mind is that the Supreme Court did not consider the interpretation of FR-56(k). That was a case where the Tribunal had granted stay of the disciplinary proceedings by way of interim measure against which the Union of India had appealed to the Supreme Court. The Supreme Court, in these circumstances, held that where the imputations made against the delinquent officer were extremely serious and the facts alleged, if proved, would have established misconduct and misbehaviour, the Tribunal should have been very careful before granting stay in a disciplinary proceedings at an interlocutory stage. In the passing, following remarks were made:- “11. We are somewhat surprised that in a disciplinary enquiry pertaining to serious charges which we have referred to earlier, the respondent was allowed to retire voluntarily under Fundamental Rules 56(k) by an order dated March 28, 1989. We do not know whether it was duly considered whether his application for voluntary retirement ought to have been rejected in view of pending enquiry against him and in view of the seriousness of the charges leveled against him. However, nothing more can be done in that connection.” 13. It is clear from the above that the Court was not directly concerned with the issue which is before us in the instant WP(C) No. 146 & 158/2008 Page 16 of 30 cases. The Court also expressed its ignorance as to whether application for voluntary retirement was duly considered by the disciplinary authority. These observations are simply an obiter. From these observations made in the context referred to above, one cannot come to a conclusion that any legal principle was laid down by the Supreme Court that when there are serious charges against an employee, his application for voluntary retirement under FR 56(k) cannot or should not be allowed. Obviously, the provisions of FR 56(k) are not even noted or reproduced and no discussion is there in the judgment. It is trite that the ratio of the judgment is the legal principle decided therein and not what logically follows therefrom. In this connection, it would be of advantage to refer to the judgment of the Supreme Court in the case of Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr., AIR 2002 SC 83 and following observations therefrom would help us in understanding as to how the ratio of a judgment is to be culled out:- “19. Courts 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. Observations of Courts are not to be read as Euclid‟s theorems nor as provisions of the statute. These WP(C) No. 146 & 158/2008 Page 17 of 30 observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judge to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at P. 761), Lord Mac Dermot observed: “The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by the most distinguished judges.” 20. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, “Lord Atkin‟s speech….. is not to be treated as if it was a statute definition. It will require qualification in new circumstances.” Megarry, J. in (1971) 1 WLR 1062 observed: “One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.” And, in Herrington v. British Railways Board, (1972) 2 WLR Lord Morris said: “There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be WP(C) No. 146 & 158/2008 Page 18 of 30 remembered that judicial utterances made in the setting of the facts of a particular case.” 21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 22. The following words of Lord Denning in the matter of applying precedents have become locus clasicks: “Each case depends on its own facts and a close similarity between one and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.” 14. As against the aforesaid judgments referred to by the learned counsel for the petitioner, we have two judgments of the Supreme Court directly dealing with the issue at hand. The first judgment to which the Tribunal has also referred is B.J. Shelat v. State of Gujarat & Ors., (1978) 2 SCC 202, which is followed by the Supreme Court in State