Supreme Court of India
H.P.M.C.versusSHRI SUMAN BEHARI SHARMA
- Citation
- 1996 INSC 468
- Decided
- 2 April 1996
- Disposal
- Appeal(s) allowed
- Bench
- S C AGRAWAL
Holding
The employee’s right under Bye‑law 3.8 is only to seek retirement; the employer must accept or reject the request within the three‑month notice period, and absence of a decision does not effect automatic retirement.
Summary
The employee of Himachal Pradesh Horticultural Produce Marketing & Processing Corporation Ltd. (HPMC) applied for long leave and subsequently requested voluntary retirement effective 30 November 1990, seeking a waiver of the three‑month notice period. He failed to report for duty from 1 December 1990 and was later served with chargesheets for unauthorized absence and misconduct. The Himachal Pradesh Administrative Tribunal held that because HPMC did not accept or reject the retirement request within three months, the employee was deemed retired on 26 February 1991 and quashed the disciplinary proceedings. HPMC appealed, contending that the corporation’s Bye‑law 3.8 requires its explicit permission for retirement and that the employee’s right is only to seek retirement, not an automatic one. The Supreme Court read the Bye‑law as a whole, held that the employee’s right is to seek retirement and that employer acceptance within the notice period is essential, thereby setting aside the Tribunal’s order. Consequently, the appeal was allowed and HPMC may proceed with the proposed enquiry.
Issues considered
- Whether under Bye‑law 3.8 an employee’s request for voluntary retirement after giving three months’ notice results in automatic retirement if the employer does not accept or reject within that period.
- Whether the employer’s permission is a condition precedent to the employee’s retirement under the Bye‑law.
Subjects
voluntary retirementnotice periodemployer acceptanceservice bye‑lawadministrative tribunalchargesheetunauthorised absenceretirement requestinterpretation of bye‑law
Judgment
\
H.P.M.C. A
v.
SHRI SUMAN BEHAR! SHARMA
APRIL 2, 1996
[S.C. AGRAWAL AND G.T. NANAVATI, J.1.J B
Service Law-En1ployee seeking volunta1y retirenJent reque:iling waiver
of mandalmy notice period-Vnauthmised abse1Zce thereafte1"-f!eld, 1ight
co1Zfe1Ted Oil the employee is /IOI the 1ight to retire but a 1ight lo ask for
;. retirement-Request by the employee a11d convspo11di11g acceptance by the C
eniployer is necessa~T71ere can not be auton1atic retirenient on expily of
period of notice time-Cltarge-sheeted for misco11duct and unauthorised ab-
se1ZCl>-{)pe11 to the employer to proceed with the p!Vposed e1Zquily-Himachal
Pradesh H01ticultural Produce Marketi11g and Processing C01poratio11 Ltd.
Employees Service Bye-Laws-~lause 3.8. D
The respondent, an employee of the appellant Corporation applied
for a long leave on 1.5.1990, and the same was granted till 30.11.1990. On
26.11.1990 he applied for voluntary retirement from 30.11.1990 waiving
three months notice period. And he remained absent thereafter.
E
Against his unauthorised absence from 1.12.1990 a chargesheet was
issued to him on 27.8.1992 and on 18.9.1992 another chargesheet for his
acts of misconduct was issued.
Aggrieved by the memos, the respondent approached the Himachal
Pradesh Administrative Tribunal. He also challenged the order dated F
28.6.1991 whereby an amount of Rs. 28,214 was sought to be recovered from
him.
The Tribunal quashed the memos and also the recovery order hold-
ing that the appellant Corporation had failed to exercise its option of G
accepting or rejecting the request of the employee within three months
from the date of the notice for premature retirement as provided under
clause 3.8 of Himachal Pradesh Horticulture Produce Marketing and
Processing Corporation Ltd. Employees Service Bye-Laws.
In this appeal, the appellant corporation contended that the appel- H
1069
)
1070 SUPREME COURT REPORTS (1996) 3 S.C.R.
A (ant has to exercise its option of accepting or rejecting the request of the
employee within three months from the date of the notice for premature
retirement.
Allowing the appeal, this Court
B HELD : 1.1. Himachal Pradesh Horticulture Produce Marketing and
Processing Corporation Ltd. Employees Service Bye-Law No. 3.8 has to be
read as a whole. Para 2 thereof confers a right on the employee to request
for voluntary retirement on completion of 25 years of service or on attaining
the age of SO years, but his desire would materialise only if he is permitted
C to retire and not otherwise. Ordinarily, in a matter like this an employee ~
who has put in less number of years of service would not be on a better
footing than the employee who has put in longer Service. It could not have
been the intention of the role-making authority while framing para S of the
Bye-Law to confer on such an employee a better and larger right to retire
after giving three months notice in writing. The words "seek retirement" in
D para S indicate that the right which is conferred by it is not the right to
retire but a right to ask for retirement. The word "seek" implies a re11uest
by the employee and corresponding acceptance or permission by the
employer. Therefore, there cannot be automatic retirement or snapping of
service relationship on expiry of three months period.
[1071-G-H, 1074-G-H, 1075-A-B)
E
1.2. When a right is conferred on the employee to retire by giving three
months notice, the question of acceptance of such a request would not arise
provided all the conditions prescribed by the role are satisfied. [1073-B-CJ
......___.
Dinesh Chandra Sangma v. State of Assam and Others, (1977) SW
F 622; Union of India v. Harendrala/ Bhattacharya, (1983) SW 418 and
Ramachandra v. The State of A.P., (1984) SW 52, relied on.
2.1. The Tribunal was wrong in holding that under para S of the
Bye-laws .the employee has a right to retire after giving three months notice
and the respondent stood retired with effect from February 26, 1991 on
G
expiry of three months notice period as the respondent's request for
retirement was not rejected within that period. [1075-H, 1076-A]
2.2. It will be open to the appellant corporation to proceed further
with the proposed enquiry if it is otherwise expedient and permissible to
H do so. [1076-A-B]
H.P.M.C. v. S.B. SHARMA (NANAVATI, J.] 1071
CIVIL APPEAL LATE JURISDICTION : Civil Appeal No. 4972 of A
1994.
From the Judgment and Order dated 29.12.93 of the Himachal
Pradesh High Court in O.A. No. 74 of 1993.
J .S. Attri and L.R. Rath for the Appellant. B
S.K. Bagga, Seeraj Bagga, Tanuj Bagga and Ms. Monika Bhanot for
the Respondent.
The Judgment of the Court was delivered by
NANAVATI, J. Himachal Prade.sh Horticultural Produce Marketing
c
& Processing Corporation Ltd. (for short HPMC) has filed this appeal
against the order passed by the Himachal Pradesh Administrative Tribunal
in 0.A. No. 74 of 1993.
The respondent was an employee of HPMC. On 1.5.1990 he applied D
for long leave but was allowed to remain on leave till 30.11.1990 only. On
26.11.1990 he applied for voluntary retirement effective from 30.11.1990
and also requested for waiver of notice period of three months. Without
ascertaining what happened to his request he did not report for duty on
1.12.1990 and continued to remain absent thereafter. Earlier on 12.12.1989 E
a chargesheet was issued against him for certain acts of misconduct. On
26.12.1989 he filed a reply to the said chargesheet. Again on 27.8.1992 and
18.9.1992 he was served with two more chargesheets. While the chargesheet
dated 27.8.1992 was in respect to his unauthorised absence from 1.12.1990
the other was in respect of his acts of misconduct. Thereupon, on 30.9.1992
he approached the Tribunal challenging the two memos dated 27.8.1992 F
i and 18.9.1992 whereby departmental enquiries were proposed to be con-
ducted against him and also the order dated 28.6.1991 whereby Rs. 28,214
were sought to be recovered from him.
The contention of the Respondent before the Tribunal was that as
no action was taken by the HPMC on his request for retirement he stood G
retired with effect from 26.2.1991, on expiry of three months from the date
of the notice and, therefore, no enquiry could be held against him there-
after. The Tribunal, while interpreting clause 3.8 of the Himachal Pradesh
Horticultural Produce Marketing and Processing Corporation Ltd. -
Employees Service Bye-Laws, which provides for superannuation and H
•
•
1072 SUPREME COURT REPORTS [1996] 3 S.C.R.
A retirement, held that the decisions in Dinesh Chandra Sangma v. State of
Assam and Others, (1977) SL.I 622 and Union of India v. Harendra/al
Bhattacha1ya, (1983) SLJ 418 and Ramc!iandra v. The State of A.P., (1984)
SLJ 52 wherein it has been held that the Government servant has a right
to voluntarily retire from service by giving three n1onths' notice in writing
and that there is no question of acceptance of such request by the Govern-
B ment and that the Government has no power to withhold permission to
retire were applicable. It further held that under the rule the HPMC has
a privilege to exercise its option lo accept or not the request of the
employee for pre-mature retirement but that option has to be exercised
within the prescribed limit of three months. It also held that as the HPMC
C did not take any decision on the application of the respondent within three
months he stood retired with effect from 26.2.1991. The Tribunal, there-
fore, quashed the two memos dated 27.8.1992 and 18.9.1992 and directed
HPMC that it cannot hold any enquiry against the respondent. The order
dated 28.6.1991 passed for recovery of Rs. 28,214 was also quashed. It also
D directed HPMC to give all the retiral benefits due and admissible to the
respondent within a period of three months. Aggrieved by this order of the
Tribunal HPMC has approached this Court.
What is contended by the learned counsel for the appellant is that
the Tribunal has not correctly interpreted para (5) of Bye- law 3.8 and
E committed an error in holding that HPMC has to exercise its option of
accepting or rejecting the request of the employee within there months
from the date of the notice for premature retirement.
On reading the judgment of the Tribunal we find that it first referred
F to the said three decisions and then observed : "The ratio of the aforemen-
tioned judgments is applicable to the present case." That would mean that
the Tribunal has, though not in specific terms, held that the employee of
HPMC has a right to retire from service by giving three months notice in
writing and there is no question of acceptance of'such request by HPMC.
In our opinion, the view taken by the Tribunal is not correct.
G
In Dinesh Chandra Sangma's case (supra) this Court, interpreting FR
56(c), held that "there is no question of acceptance of the request for
voluntary retirement by the Government when the Government servant
exercises his right under FR 56(c)." (emphasis supplied) Thus, this Court
H interpreted FR 56(c) as conferring a right on the Government servant to
H.P.M.C. v. S.B. SHARMA [NANAYATL J.] 1073
retire fro1n service by f,riving three months notice in writing and it was in A
that context further held that consent of the Government is not necessary
to give legal effect to the voluntary retirement of the Governn1ent servant
under that rule.
The Delhi High Court in Harendra/a/\ case (supra) and the Andhra
· Pradesh High Court in Ramchandra's case (supra) ~!so proceeded on the B
basis that the relevant rules conferred a right on the Government r.ervant
to retire by giving a notice of three months. Therefore, the ratio of those
decisions is that when a right is conferred on the employee to retire by
giving three months notice the question of acceptance of such a request
would not arise provided all the conditions prescribed by the rule are C
satisfied. The Tribunal should have first considered whether Bye-law 3.8
· confers such a right on the employee of HPMC. Bye-law 3.8 reads as
follows :
"(1) Every employee appointed to the service of the Corporation
shall normally retire when he attains the age of 58 years but in D
special cases their services may be retained upto 60 years.
(2) Notwithstanding anything contained in Clause-I any employee
may be required by the competent authority, or permitted at his
request, to retire from the service of the Corporation on comple- E
tion of 25 years service or at the age of 50 years whichever is earlier.
(3) Nothing contained in clause (1) and clause (2) shall affect the
right of the competent authority to retire an employee without
notice or pay in lieu thereof on his being certified by a medical
examiner to be nominated for the purpose by such authority as F
being incapacitated for a further period of continuous service due
to his continued illness and accident.
(4) An employee may be permitted to retire at his own request if
the competent authority is satisfied that such an employee is G
incapacitated for a further period of continuous service due to his
continued illness and accident.
Provided that before acting under this clause it shall be open
to such authority to require the employees to undergo a medical
examination by such medical examiner it may nominate for this H
1074 SUPREME COURT REPORTS [1996] 3 S.C.R.
A purpose.
(5) Notwithstanding the provision under para 2· above, the Cor-
poration 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
B authority. Persons under suspension would not be retired under
this clause unless proceedings of the case against them are
11
finalised ...... .......
Clause (2) of the Bye-law inter-alia provides for voluntary retirement
c from service of HPMC on completion of 25 years service or on attaining
the age of 50 years whichever is earlier. The employee, however, has a right
to make a request in that behalf and his request would become effective
only if he is 'permitted' to retire. The words "may be ... permitted at his
request" clearly indicate that the said clause does not confer on the
D employee a right to retire on completion of either 25 years service or on
attaining the age of 50 years. It confers on the employee a 1ight to make a
request to pennit him to retire. Obviously, if request is not accepted and
permission is not granted the employee will not be able to retire as desired
by him. Para (5) of the Bye-law is in the nature of an exception to para (2)
and permits the employee who has not completed 25 years service or has
E attained 50 years of age to seek retirement if he has completed 20 years
satisfactory service. He can do so by giving three months' notice in writing.
The contention of the learned counsel for HPMC was that though Para 5
of the Bye-law relaxes the conditions prescribed by para 2, the relaxation
is only with respect to the period of service and attainment of age of 50
F years and it cannot be read to mean that the requirement of permission is
dispensed with. On the other hand, the learned counsel for the respondent
submitted that as para 5 opens with the words "Notwithstanding the
provision under para zn and the wordsn may be ..... perrnitted at his requesC
arc absent that would mean that the employee has a right to retire after
giving three months' notice and no acceptance of such a request is neccs-
G sary. We cannot agree with the interpretation canvassed by learned counsel
for the respondent. The Bye-law has to be read as a whole. Para 2 thereof
confers a right on the employee to request for voluntary retirement on
completion of 25 years service or on attaining the age of 50 years, but his
desire would materialise only if he is permitted to retire and not otherwise.
H Ordinarily, in a matter like this an employee who has put in Jess number
H.P.M.C.v. S.B. SHARMA [NANAVATL .!.] 1075
of years of service would not be on a better footing than the employee who A
has put in longer service. It could not have been the intention of the
rule-making authority while framing para S of the Bye-law to confer on
such an employee a better and a larger right ro retire af\cr giving three
months' notice in \Vriting. The words 11 seek retiren1cnt'1 in para 5 indicate
that the right which is conferred by it is not the right to retire but a right B
to ask for retirement. The word "seek" implies a request by the employee
and corresponding acceptance or permission by HPMC. Therefore, there
cannot be automatic retiren1ent or snaping of service relationship on ~xpiry
of three months' period.
The Tribunal also failed to appreciate that the following observations C
made by the Andhra High Court in Gwnmadi S1i !0islma Murthy v. The
District Educational Officer, Guntur and others, (1990) SL.I 91 :
"On the facts of this case, we are of the view that the rules
above-mentioned intended that the employee has to give advance
notice to the employer so that the latter could make necessary D
arrangements for employing some other person. It \Vas also the
intention of the rules that this privilege given to the employer could
not be exercised beyond a reasonable period here fixed as three
months for the employee should equally know where he stands.
For example, the employee might have opted to retire because of E
offers of employment elsewhere or he might wish to make some
other arrangement in regard to his own affairs. In such a situation,
the employer could not be given a unilateral right to communicate
his acceptance or otherwise at his own sweet will and without any
limitation as to time ......... 11
F
were by way of justification of rule which provided that "Provided that the
competent authority shall issue an order before the expiry of the notice
period accepting or rejecting the notice." The High Court has not laid down
a general proposition of law that when an employee seeks voluntary retire-
ment the employer has to exercise his privilege of accepting or rejecting G
the request within a reasonable time and if a period is fixed for giving a
notice in that behalf then the decision has to be taken within the period so
fixed.
We are, thereforei of the opinion that the Tribunal was \Vrong in
holding that under para 5 of the Bye-law the employee has a right to retire H
1076 SUPREME COURT REPORTS [1996] 3 S.C.R.
A after giving three months' notice and that the respondent stood retired with
effect from February 26, 1991 on expiry of three months' notice period as
the respondent's request for retirement was not rejected within that period.
We, therefore, allow this appeal and set aside the order passed by the
Tribunal. It will be open to the appellant to proceed further with the
proposed enquiry if it is otherwise expedient and permissible to do so.
B However, in view of the facts and circumstances of the case there shall be
no order as to costs.
M.K. Appeal allowed.
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