SUDHIR AGARWAL, J. - (1.) HEARD Sri Rakesh Kumar Shukla for the petitioner, learned Standing Counsel of the respondents and perused the record.
(2.) THE petitioner petitioner was appointed as Constable in U.P. Police Force in 1974. On 23.11.2002 he applied for voluntary retirement w.e.f. 1st September, 2003. A copy of this application is on record as Annexure 1 to the writ petition. It was forwarded by the Superintendent of Police, Kaushambi on 23.11.2003 to higher authorities. Thereafter it appears that no decision was taken thereon though the petitioner sent some further letters. The respondents instead of treating the petitioner having voluntary retired on 1st September, 2003, took him as if he has continued in service and by order dated 24th June, 2006 he was placed under suspension on the allegation that he was absent from duty w.e.f. 06.10.2004. A charge sheet was issued on 15th June, 2006 which culminated in an order of dismissal dated 15th February, 2007 passed by the Superintendent of Police, Kaushambi. Learned counsel for the petitioner submits that having applied for voluntarily retirement w.e.f. 1st September, 2003 in accordance with Fundamental Rule 56(c), he ought to be deemed to have retired on that date and no proceedings thereafter could have continued. Hence the entire proceedings are illegal and void ab initio. Reliance is placed on a Division Bench decision in State of U.P. and Ors. Vs. Krishna Chandra Agarwal 2007(2) ESC 760. Considering similar provision therein this Court in para 5 to 7 of the judgment held as under: "5. A careful reading of FR-56(c) makes it clear that a Government Servant can be retired by the employer prematurely without assigning any reason after he attains the age of fifty years by giving three months notice at any time. Similarly a Government Servant can also seek voluntarily retirement at any time after attaining the age of forty five years giving a similar three months notice. The proviso of FR-56 (c) further provides that the Government Servant may be retired by the employer giving a shorter notice or without any notice but in such a contingency, he be entitled to claim some amount for the period of notice by which such notice falls short of three months. Similarly, where the Government Servant tenders notice, it is open to the appointing authority to allow him to retire without any notice or for a shorter period of notice without incurring any liability to pay any penalty on account of such permission. It further provides where a disciplinary proceeding is pending or contemplated, the notice shall be effective only if it is accepted by the appointing authority, provided that in a case of contemplated enquiry, the government Servant is informed before expiry of period of notice that the same has not been accepted. Therefore, the proviso restrict the right of the Government Servant to retire by tendering three months notice, where a departmental enquiry is pending and in such a case, the voluntary retirement would be effective only after the said notice is accepted by the appointing authority, even if the period of notice is expired, but where enquiry is only contemplated, in such a case acceptance of notice would be necessary provided the Government Servant is informed by the employer before expiry of period of his notice that it has not been accepted. A somewhat similar provision contained in Rule 161 of Bombay Civil Service Rules came up for consideration before the Apex Court in B.J. Shelat Vs. State of Gujrat and others, (1978) 2 SCC 202. Rule 161 of the Bombay Civil Service Rules empowered the Government Servant to retire by giving a three months notice in writing after attaining the age of 55 years. However, proviso under Rule 161(2)(ii) restricted such right of the Government Servant where the departmental enquiry is pending or contemplated or the Government Servant is under suspension and the said proviso reads as under : "Provided that it shall be open to the appointing authority to withhold permission to retire to a Government Servant who is under suspension, or against whom departmental proceedings are pending or contemplated, and who seeks to retire under this sub-section." 6. It was held that but for the proviso, the Government Servant would be at liberty to retire by giving not less then three months notice to the appointing authority after attaining the prescribed age. However, though the proviso empowered the appointing authority to withhold permission to retire, yet the Court took the view that this proviso contemplate a positive action by the appointing authority. The Government has to communicate its intention of withholding of permission to the Government Servant. Where no such decision is taken and communicated to the Government Servant and the period of notice is allowed to expire, then it would result in allowing the Government Servant to retire without taking any action. In order to operate the proviso, it was thus necessary that the Government should not only take a decision but communicate it to the Government Servant. The Court further held where no such decision is taken and communicated to the Government Servant, after expiry of the period of notice, no disciplinary action can be taken against such Government Servant. The Court relied on an earlier three Judges Judgment of the Apex Court in Dinesh Chandra Sangma Vs. State of Assam and others, (1997) 4 SCC 441, where it was held that for retiring voluntarily under FR-56(c), a Government Servant does not require any positive order of the appointing authority unless required by the Rules otherwise. Both the aforesaid judgments have been followed in Union of India and others Vs. Sayed Muzaffar Mir, (1995) 1 UPLBEC 146 (SC), while considering a pari materia provision under Article 1801(d) of Railways Establishment Code and in para-4 and 5 of the judgment, it was held : "4. 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 concerned authority thought that it would be better to see off the respondent by allowing him to retire. 5. The second aspect of the matter is that it has been held by a three Judges Bench of this Court in Dinesh Chandra Sangma V. State of Assam, 1977 (4) SCC 441, which has dealt with a pari materia 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 Judges Bench in B.J. Shelat V. State of Gujrat, 1978 (2) SCC 202." 7. While considering the provisions of FR 56 (c), a Division Bench of this Court in Surendra Narain Singh Vs. D.I.G., Special Appeal No. 649 of 1994 decided on 31st January 1995 took the same view. Learned standing counsel however sought to argue that a mischievous Government Servant should not be allowed to take the advantage of technicality otherwise the public interest would suffer adversely. The argument is to be noted only for rejection for the reason that even if after retirement, the order of punishment may not be passed under the U.P. Government Servant (Discipline and Appeal) Rules, 1999, yet the Government may proceed to pass appropriate order under Article 351A and 470 of Civil Service Regulations and can take steps for recovery of the amount, if any, which the Government has suffered on account of alleged misconduct of the Government Servant. The Hon'ble Single Judge has also taken the same view and we are in full agreement with the view taken in the judgment under appeal. "
(3.) HERE also it is not case of the respondents that till 1st September 2003 any enquiry was pending or petitioner's application for voluntary retirement was rejected or was withheld otherwise by any positive act. In the counter affidavit the only defence taken is that since no sanction or approval was granted on the petitioner's request for voluntary retirement, hence he continued to be in service and since his absence was unauthorized from 28th December, 2003, hence the proceedings were initiated against him are correct.;