STATE OF PUNJAB AND ANOTHER Vs. JAGIR SINGH

JUDGEMENT

(1.) This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging the judgment and decree dated 27.2.2990 passed by the Additional District Judge, Faridkot, in favour of the plaintiff-respondent decreeing his suit for declaration that the order dated 3.7.1975, which became operative with effect from 16.3.1977 passed by the Senior Superintendent of Police, Faridkot, compulsorily retiring the plaintiff-respondent from service is illegal and void. The suit of the plaintiff-respondent was dismissed by the Additional Senior Sub Judge, Mukatsar vide his judgment and decree dated 21.3.1987.

(2.) Facts in brief are that the plaintiff-respondent joined the service of the defendant Punjab Government as Assistant Sub Inspector Police (ASI) on 1.4.1941. After passing the departmental examination, the plaintiff- respondent was promoted as Sub Inspector (S.I.) on 1.12.1946. On 1.4.1948, he was reduced to the rank of ASI on account of some misconduct and was reinstated in service on 16.3.1950 as ASI. On attaining the age of 55 years on 18.5.1975 his case was to be examined for retention in service upto the age of 58 years. On examining his case, a notice was issued by the defendant-State on 13.3.1975 disclosing that the plaintiff-respondent would stand retired from service on attaining the age of 55 years with effect from 18.5.1975. The plaintiff-respondent applied for leave preparatory to retirement which was granted to him from 5.7.1975 to 1.11.1975 on full pay and from 2.11.1975 to 15.3.1977 on half pay. It has been asserted that the plaintiff-respondent was retired on his own request on the expiry of three months notice and no extension of three years in service was granted to him. It has further been asserted that only leave was granted to the plaintiff-respondent and as such notice served upon him was not considered at the time of his voluntary retirement. The defendant-appellants further pleaded that the plaintiff- respondent was retired on his own request after granting him leave preparatory to retirement. On the pleadings of the parties, the following issues were framed :-

(3.) The findings on issues No. 1 and 2 were the subject matter of challenge before the learned Additional District Judge. The learned Additional District Judge held that the order dated 3.7.1975 was illegal and void because the notice dated 13.1.1975 intimating the plaintiff-respondent to retire him compulsorily on the expiry of three months was not acted upon nor the plaintiff-respondent has ever sought his voluntary retirement. The order Ex. P-3 was passed on 2.7.1975 but the plaintiff-respondent was to retire in accordance with the notice with effect from 18.5.1975, which in turn shows that the notice dated 13.3.1975 was not acted upon and no fresh notice was served on the plaintiff-respondent. Dealing with the application Ex. P-2 filed by the plaintiff-respondent, the learned Additional District Judge held that the application was filed after the service of three months notice dated 13.3.1975 communicating that the plaintiff-respondent had already made a representation, which was under consideration and in case it was finally decided to retire him, then the plaintiff-respondent had requested for grant of leave of the kind due. Referring to the instructions dated 15.1.1980, the learned Additional District Judge further held that an employee is entitled to grant of leave of the kind due to him at the time of his retirement and as such concession has to be given even if the employee is prematurely retired or if he seeks voluntary retirement.