UNION OF INDIA AND ORS.versusSAYED MUZAFFAR MIR

                     UNION OF INDIA AND ORS.                                  A
                                v.
                      SAYEO MUZAFFAR MIR

                         SEPTEMBER 20, 1994

             [KULDIP SINGH AND B.L. HANSARIA, JJ.]                            B

      Service Law:

      Indian Railway Establishmen_t Code : Articles JBOJ(d) and 18Q2(b)
Proviso.                                                                      c
      Voluntary retirement-Notice for -Employee under suspension during
notice-{)isciplinary proceeding-Removal order passed after expiry of notice
period-Held non-est in the eyes of law-Notice of premature retirement does
not require acceptanc~Acceptance comes into effect on the completion of
notice period-Withholding pennission to retire or retention in service of     D
employee under suspension requires passing of an order to that effect by
competent authority.                                ·

      The respondent, a railway employee, gave three months notice on
22.7.1985 for seeking per-mature retirement as visualised by Article E
1802(b) of the Indian Railway Establishment Code. The period of notice
expired on 21.10.1985. However, in view of the disciplinary proceeding
which was then pending against him he was suspended and an order of
removal was passed against him on 4.11.1985. The respondent filed an
application before the Tribunal seeking declaration that he voluntarily
retired from service w.e.f; 22.10.1985 and that all proceedings pending F
against him as on date were of on consequence. The Tribunal held that the
respondent had been rightly found guilty af the charges, but it set aside
the order of removal passed by the appellate authority who on appeal being
preferred by the respondent had awarded this punishment, instead of
dismissal, which was the punishment inflicted by the disci1llinary G
authority. The Trlbunal held that the respondent was entitled under the
law to seek premature retirement; and, therefore, the order of removal has
to be treated as Iion-est in the eyes of law.

      In appeal to this court, is was contended on behalf of the appellant
that the right of premature retirement conferred by Article 1802(b) could     H
                                    729
    730                   SUPREME COURT REPORT~ [1~94] SUPP. 3 S.C.R.

A   be denied to a railway servant in case he was under suspension at the
    relevant time;· that under Article 1801(d) the competent authority may
    withhold permission to retire or retain in service a railway servant under
    suspension.

            Dismissing the appeal, this Court
B
          HELD :1. The provisions contained in Articles 1802(b) and 1801(d)
    of Indian Railways Establishment Code would require passing of ap-
    propriate 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. Despite the right given to the competent
c   authority in this regard, the same is of no avail. in the present case as the
    right had not come to be exercised. [731-C, H, 732-A]

          2. Where the Government servant seeks premature retirement, the
    same does not require any acceptance and comes in-to effect on lhe
D   completion of the notice period. The period of notice in the present case
    having expired on 21.10.1985, as the first to order of removal having been
    passed on 4.11.1985, the Tribunal had rightly come to the conclusion that
    the order of removal was non-est in the eyes of law. [732-C, D]

            Dinesh Chandra Sangma v. State of Assam, [1977] 4 S.C.C. 441 and
E BJ. She/at v. State of Gujarat, [1978] 2 S.C.C. 202, relied on.
            CIVIL APPELLATE JURISDICTION: <;:ivil Appeal No. 2620 of
    1994.

          From the Judgment and Order dated 22.8.91 of the Central Ad-
F   ministrative Tribunal, Bombay in O.A. No. 106 of 1987.

         Altaf Ahmed, Additional Solicitor General, Hemant Sharma and
    C.V. Subba Rao for the Appellants

G           The JudgmenLof the Court was delivered by

          HANSARIA, J."The Central Administrative Tribunal, New Bombay
    Bench, was approached by the respondent seeking two declarations in the
    main that he voluntarily retired from service with effect from 22.10.1985
    and that all proceedings against him pending as on that date were of no
H   consequence. The Tribunal after having applied mind to the charges, which
             U.0:1. v. SAYED MUZAFFARMIR[HANSARIA,J.]                      731

on inquiry were found established, came to the conclusion that the respon-        A
dent had been rightly found guilty of the charges, but it set aside the order
of removal passed by the appellate authority, who on appeal being
preferred by the respondent had awarded this punishment instead of
dismissal, which was the punishment inflicted by the disciplinary authority.
This order of the Tribunal has been assailed in this appeal.
                                                                                  B
      2. The Tribunal had taken the aforesaid view because the respondent
had by a letter dated 22.7.1985 given a three months notice to the Railways
to retire from service as vizualised by Article 1802(b) of Indian Railways
Establishment Code. The period of.three months had expired on 21.10.1985
and the order of removal was first passed on 4.11.1985. It was held by the        C
Tribunal that the respondent was entitled under the law to seek premature
retirement; and, therefore, the order of removal has to be treated as
non-est in the eye of law.

      3. The learned Additional Solicitor General, Shri Ahmed appearing           D
for the appellants, has contended that the right of premature retirement
conferred by the aforesaid provisions could be denied to a railway servant
in case he be under suspension, as was the respondent at the relevant time.
This is what finds place in the proviso to the aforesaid provision. The
Additional Solicitor General also seeks to place reliance on what has bean
stated in Article 1801(d) which starts with non-obstante clause and states        E
that the competent authority may require a railway servant under suspen-
sion to continue his service beyond the date of his retirement in which case
he shall not be permitted by that authority to retire from service and shall
be retained in service till such time as required by that authority. Relying
on these provisions the contention advanced is that though the respondent         F
had sought premature retirement by his letter dated 22.7.1985 and though
the three months period had expired on 21.10.1985, the Railways were
within the rights not to permit the premature retirement because of the
suspension of the respondent at the relevant time, which had come to be
ordered in the course of a disciplinary proceeding which was then pending
against the respondent.                                                           G

      4. There are two answers to this subJ;nission. 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           H
    732                  SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R.

A   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 concerned
    authority though that the it would be better to see off the respondent by
B   allowing him to retire.

          5. 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 sec 441, which has dealt with a pari materia provision finding
C   place in Rule 56(c) of the Fundamental Rules, that where the Government
    servant seeks premature retirement the same does not require any accep-
    tance and come into effect on the completion of the notice period. This
    decision was followed by another three Judge Bench in B.J. Shelat v. State
    of Gujarat, (1978) 2 SCC 202.

D         6. The period of notice in the present case having expired on 21.
    10.1985, and the first order of removal having been passed on 4.11.1985,
    we. hold that the Tribunal had rightly came to the conclusion that the order
    of removal was non-est in the eyes of law.

         7. For the reasons aforesaid, the appeal is dismissed. We, however,
E   make no order as to costs.

    T.NA.                                                    Appeal dismissed.