HARISH CHANDRA SRIVASTAVA Vs. DEPUTY COMMISSIONER FAIZABAD

JUDGEMENT

(1.) THE Petitioner was a clerk in the collectorate. He was suspended pending prosecution. Ultimately he was convicted under the Prevention of Corruption Act and the conviction was maintained by this Court on appeal on 1 -10 -81. Before any order of dismissal or removal on the basis of that conviction could be passed, the Petitioner made an application for voluntary retirement on 3 -4 -82. In this application, which is annexure 1 to the petition, he also prayed that his request for voluntary retirement be accepted with immediate effect without his being required to pay the penalty in lieu of three months notice as provided under U.P. Fundamental Rule 56, The Petitioner did not receive any reply to this application; receipt of which is admitted In paragraph 11 of the counter -affidavit. The application was addressed to the Deputy Commissioner who is the appointing authority. Ultimately on 22 -6 -83 a charge -sheet was issued. The Petitioner's contention is that no charge -sheet could be issued in the circumstances as he should be deemed to have retired voluntarily on the expiry of the usual notice of three months from the date of his application annexure 1.

(2.) IN the counter -affidavit the only plea taken is that after the Petitioner's conviction the question of his voluntary retirement 'did not arise' and that his application for that purpose was 'not effective' - -whatever that may mean. We have not been shown any provision under which there may be any bar on a convicted government servant giving notice of voluntary retirement. Of course, it is always open in such a case to the appointing authority to inform the government servant before the expiry of the notice that his request cannot be accepted because disciplinary proceedings are to be taken against him. This is clear from the language of the proviso (2) to Sub -clause (d) of Fundamental Rule 56.

(3.) IN the result, the writ petition is allowed and the charge -sheet annexure 3 is quashed and a writ of prohibition is issued against the continuance of disciplinary proceedings against the Petitioner and a writ in the nature of mandamus is issued to the opposite party directing him to treat the Petitioner as having retired on 3 -7 -1982.