STATE OF U P Vs. KRISHNA CHANDRA AGRAWAL

JUDGEMENT

(1.) THIS intra Court appeal under Chapter VIII Rule 5 of the Rules of the Court is preferred against the judgment of the Hon'ble Single Judge of this Court dated 2-9-2002 allowing the sole respondent's writ petition No. 36403 of 2001 against the order imposing punishment of reduction in rank and for recovery of Rs. 2,19,648. 60.

(2.) LEARNED Standing Counsel appearing for the appellant vehemently contended that the charges against the petitioner- respondent are in respect of the period commencing from 1-9-1997 to 31-1-2001 during which he raised forged vouchers and illegally withdrew travelling allowance. In the regular departmental proceeding charges were found proved and thus, punishment of reduction in rank and recovery of the financial loss suffered by the appellant was imposed in accordance with rules and thus, there was no reason for the Hon'ble Single Judge to interfere with the order dated 22-1-2002. It is also submitted that the effect of notice of voluntary retirement dated 26-5-2001 became redundant because of the conduct of the petitioner-respondent and the notice under Rule 56 (c) became ineffective after this Court's order dated 31-7-2001 passed in the writ petition of petitioner- respondent bearing writ petition No. 25415 of 2001 Krishna Chandra Agarwal v. State of U. P. & Ors.

(3.) 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 v. State of Gujarat & Ors. , (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. "