Civil Writ Petition No.12143 of 2011 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 14, 2011 Babu Ram .....Petitioner VERSUS State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.R.K.Malik, Senior Advocate with Mr.Kohal Sharma, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner, who was serving as an Agriculture Development Officer, has impugned his order of dismissal with a further prayer to treat him to have voluntarily retired w.e.f. 31.7.2010 deemingly. The petitioner also prays for grant of all consequential benefits on the basis of the prayer so made. Initially, appointed on adhoc basis on 24.8.1979, the petitioner was regularised as Agriculture Development Officer on 15.9.1982. Petitioner had submitted a request for voluntary retirement w.e.f. 31.7.2010. This request was sent through a Civil Writ Petition No.12143 of 2011 : 2 : registered post and the same was made under the provisions of Rule 5.32-B of the Punjab Civil Service Rules (for short “the Rules”), which gives a right to a Government employee to give a notice of three months in writing to retire from service if he has completed 20 years qualifying service. This provision contains a proviso to the effect that where appointing authority does not refuse to grant permission for retirement before expiry of the period specified in the rule, the retirement shall become effective from the date of expiry of the said period. Invoking the provisions of the proviso in the rule, the petitioner claims that he would deem to have retired on 31.7.2010 as his request made on 26.4.2010 was never denied. As per the petitioner, he fulfilled the remaining requirement mentioned in the rules as he had completed more than 30 years of service. The respondent instead had dismissed the petitioner on 21/27.5.2011 w.e.f. 22.4.2010 on the ground that he had been convicted for an offence under Section 304-B IPC. Copy of the judgment, which was passed on 20.4.2010, is annexed with the writ petition. The petitioner has filed an appeal against this judgment, which is still pending. Since the whole controversy relates to Rule 5.32-B of the Rules, on which the petitioner has placed heavy reliance, the same may need a reference and is as under:- “5.32-B (1) At any time a Government employe has completed twenty years qualifying service, he may, by giving notice of not less than three moths in writing to the appointing authority, retire from service. However, a Civil Writ Petition No.12143 of 2011 : 3 : Government employee may make a request in writing to the appointing authority to accept notice of less than three months giving reason thereof. On receipt of a request, the appointing authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. 2) The notice of voluntary retirement given under sub rule (1) shall require acceptance by the appointing authority subject to rule 2.2 of Punjab Civil Service Rules Volume-II. Provided 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) supra, the retirement shall become effective from the date of expiry of the said period. Provided further that a Government employee gives notice of voluntary retirement with reference to sub rule (1) he should satisfy himself by means of a reference to the appropriate authority that he has, in fact, completed twenty years service qualifying for pension.” The counsel for the petitioner has placed very heavy Civil Writ Petition No.12143 of 2011 : 4 : reliance on the proviso to urge that petitioner would deem to have retired on expiry of three months notice i.e. w.e.f. 31.7.2010 once his request for voluntary retirement was not denied. In this regard, the counsel seeks support from the decision in CWP No.4030 of 1999 Suresh Kumar Gupta Vs. State of Haryana, decided by a Division Bench of this court on 13.1.2000 and copy of which is annexed with the petition. Though in this case, Division Bench has taken a view that the notice for voluntary retirement having not been declined within a period specified in Sub-rule (1) i.e. three months with effect from the date of notice, the retirement shall become effective from the date of expiry of the said period. The writ petition was accordingly allowed. In response to query by the court, the counsel for the petitioner candidly conceded that petitioner in Suresh Kumar Gupta's case (supra) was not facing any criminal prosecution and had not earned any disadvantage of being convicted of a criminal charge. That in my view would be the major distinction in these two cases and the ratio if any, emerging from Suresh Kumar Gupta's case (supra) cannot be applied to the facts of the present case. Even otherwise, the case apparently is not laying down any ratio. Be that as it may, the issue requiring consideration in this case would be to see if a person who is facing some criminal prosecution or a departmental proceedings can be allowed to adopt a short cut of seeking voluntary retirement and invoke the deeming proviso somehow to get off the hook of the consequences of such disciplinary or criminal conviction. The counsel for the petitioner Civil Writ Petition No.12143 of 2011 : 5 : could not dispute that it was well within the jurisdiction of the respondents to dismiss the petitioner upon his conviction of a criminal charge. The date of institution of the criminal proceeding against the petitioner is 23.1.2009. Date of conviction is 20.4.2010. It is, thus, clear that the petitioner had submitted his request for voluntarily retirement on 26.4.2010 well with knowledge of his pending criminal proceedings and his ultimate conviction. Rather, he has apparently adopted this mode facing the prospect of dismissal due to his conviction and did so only to get out of the rigors of this conviction. The petitioner was convicted on 20.4.2010 and within six days thereof, he had made this request for voluntarily retirement. Obviously this was with an aim to get undue advantage as he was sure to face dismissal upon his conviction. Can a person like the petitioner be permitted to pollute the purity of administration in this manner. The answer seemingly would be emphatic “No”. The respondents were fully justified in not considering the request of the petitioner because he was facing prosecution for criminal charge for which he was under suspension. It is perhaps some lethargy or may be a connivance on the part of some official or inadvertent ignorance about rule that the respondents failed to communicate this denial. May be the respondents were under an impression that they would have power to order dismissal with retrospective effect relating it to the date of conviction, which was even prior to the date of the application for voluntary retirement it being in their knowledge when the period of three months notice expired. The petitioner very smartly has avoided to mention that Civil Writ Petition No.12143 of 2011 : 6 : he was placed under suspension after registration of case against him. This fact came to my notice while perusing in detail the impugned order (Annexure P-3) where it is mentioned that the petitioner was placed under suspension upon his arrest w.e.f. 12.9.2008 vide an order dated 6.10.2008. This fact may add another angle to the case. It may have to be seen if the employee could seek voluntary retirement while under suspension. The application for voluntary retirement was given to Director Agriculture, who was apparently not competent authority either to accept or decline this request. Impugned order is by Director General. The petitioner has also not placed any material on record to show that this application was ever submitted and was received by the respondents or by the competent authority who was to accept or decline this prayer. This application cannot, thus, be said to be valid for acceptance or rejection. I may not further go into this aspect. The counsel for the petitioner would even make this offence to look mild by urging that the offence under Section 304-B IPC is an offence not involving moral turpitude. An offence of dowry death introduced especially by legislation is made to look venial. It cannot be accepted by any sense of logic. If such offence would not be involving moral turpitude, then there would hardly be an offence which could be termed as such. While analysising the provisions of Rule 5.32-B of the Rules, one may not and cannot ignore Sub-rule (2) which clearly provides that notice of voluntarily retirement shall require acceptance by appointing authority subject to Rule 2.2 of the Rules. Concededly, the request for voluntarily retirement was not accepted. It may not, Civil Writ Petition No.12143 of 2011 : 7 : thus, be possible to urge that it would lead to a voluntary retirement of the petitioner. Rule 2.2 of the Rules makes a provision for future good conduct to be the implied condition for grant of pension and the Government, thus, has reserved a right to withhold or withdraw pension if one is not able to maintain a good conduct in future. The conviction of criminal offence obviously would also mean that the petitioner has not been able to maintain good conduct. The petitioner is apparently taking advantage of an innocent looking situation and an equity court would always guard against such like attempt. There is, however, merit in the plea raised on behalf of the petitioner that the dismissal order which was passed on 21/27.5.2011 could not have been made effective w.e.f. 22.4.2010. The counsel for the petitioner is justified in referring to the ratio of law in PSEB Vs. Presiding Officer Labour Court, 1992(3) RSJ 706 in support. In this case also, the order was held to be effective from the date it was passed and by invoking the provisions of Regulation applicable to Punjab State Electricity Board, the period after conviction till an order of punishment was treated under suspension. It would be fair to adopt this course in the present case as well. The order of dismissal would be effective from 21.5.2011. In any case, the petitioner, as already noticed, was under suspension and would be treated as such till the date of his dismissal. There is, otherwise, no merit in the writ petition. The same is dismissed qua the remaining reliefs. July 14, 2011 ( RANJIT SINGH ) ramesh JUDGE