UNION OF INDIA Vs. SAYED MUZAFFAR MIR

JUDGEMENT

(1.) 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 consequence. The Tribunal after having applied mind to the charges, which on inquiry were found established, came to the conclusion that the respondent 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.

(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 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 for the appellants, has contended that the right of premature retirement conferred by the aforesaid provision 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 been stated in Article 1801(d) which starts with non obstante clause and states that the competent authority may require a railway servant under suspension 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 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.