TMI Blog1978 (3) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... otice of retirement to the Government of Gujarat through the Registrar of the High Court. He intimated that as he had completed 50 years on 4th December, 1968 he intended to retire from 10th May 1971 if Rule 161 of the Bombay Civil Services Rules permitted him to do so. The Registrar of the High Court replied to this notice on 11th January, 1972 informing the appellant that he may send a fresh application on the lines of his application dated 9th November, 1970. The appellant had delivered several judgments under the Prevention of Food Adulteration Act during the period 24th January, 1972 to 17th August, 1972. These judgments were taken on appeal to the High Court and in the High Court during the period 19th June, 1973 to 10th August, 1973 the accused in the various cases relating to food adulteration filed affidavits alleging that they had paid some moneys to 'the appellant. When these appeals were pending, before the High Court on 17th July, 1973 the appellant gave a second notice under Rule 161 intimating his intention to retire on reaching the age of 55 years i.e. on 3rd December, 1973. But before 3rd December, 1973, the date on which the appellant was due to retire, the Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant after his retirement, a question which was specifically reserved for the appellant by this Court. Secondly, he submitted that on the merits there is no evidence on which a court can come to the conclusion that the charges that were framed against the appellant had been established. We will proceed to consider the question of the jurisdiction of the ,authority to take disciplinary action against the appellant after his retirement. It may be recalled that the appellant gave a notice intimating his intention to retire on 17th July, 1973 stating that he intended to retire on reaching the age of 55 years on 3rd, December, 1973. He attained the age of 55 years on 3rd December, 1973 and it is common ground that the notice of suspension was issued by the High Court only on 11th December, 1973. But before 3rd December, 1973 it is admitted that a show-cause notice was issued on 23rd November, 1973 by the Chief City Magistrate co the directions of the High Court calling upon the petitioner to submit his, explanation and the appellant submitted his explanation on 26th November, 1971. Rule. 161 of the Bombay Civil Services Rules provides for the retirement of Government serva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the appropriate authority, retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier. On a construction of the Rule this Court held that the condition of service which is envisaged in Rule 56(c) giving an option in absolute terms to a Government servant to voluntary retire with three months' previous notice, after he reaches 50 years of age or has completed 25 years of service, cannot be equated with a contract of employment as envisaged in Explanation 2 to Rule 119 of the Defence of India Rules and that Rule 56 is a statutory condition which operated in law without reference to a contract of employment and when once the conditions of Fundamental Rule 56(c) are fulfilled the Government servant must be held to have lawfully retired. But for the proviso to Rule 161(2)(ii) the decision of this Court in the case cited above would be applicable and the right would have been absolute. But the proviso has restricted the right conferred on the Government servant. Under the proviso it is open to the appointing authority to withhold permission to retire to a Government servant when (1) be is under suspension, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his property if he assigns to the person whose name he has given to the landlord. On the circumstances of the case the Court Was of the view that the period between 3rd April and 14th April was a reasonable time and inasmuch as no intimation was made to him either way in the interval there has been no breach of the covenant and the sub-lease to Higham was good. We fall to understand how this decision advances the contention of Mr. Patel. As no communication was received the Court held that the granting of the permission was a mere formality and that it had to be taken that the consent was granted. In the case before us it is incumbent on the appointing authority to withhold permission to retire on one of the conditions mentioned in- the proviso. We ,ire of the view that the proviso contemplates a positive action by the appointing authority. The words It shall be open to the appointing authority to withhold permission would indicate that the appointing authority has got an option to withhold permission and that could be exercised by communicating its intention to withhold permission to the Government servant. The appointing authority may have Considered the question and might not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to sub-rule 56(k) states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. Thus under the fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso wherever the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of Rule 161(2) (ii) and the proviso we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the ground specified in the proviso. In the view we have taken that the appointing authority has no jurisdiction to take disciplinary proceedings against a Government servant who had effectively retired, the question as LO whether the High Court was right in holding that the disciplinary authority had sufficient grounds for dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
