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Ashoke Dasgupta Versus United Bank of India and ors.

Dated:- 26-8-1999 - Ajoy Nath Ray, J. JUDGMENT Ajoy Nath Ray, J. 1. The two writs by the same writ petitioner against United Bank of India are disposed of by this common order. 2. After long years of service, while the writ petitioner was the Branch Manager of United Bank of India at Birpara Branch, Jalpaiguri he wrote a letter on May 14, 1996 and also served it 6n the same day on the Bank Authorities. 3. By the said letter he sought to exercise an option for voluntary retirement which is given .....

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consistent stand taken by the writ petitioner has been that the letter of May 14, 1996 was, appropriately given on that very day to the General Manager (Personnel) of United Bank of India. 5. In my opinion, this point of routing through the proper channel is a point without substance. The submission of the notice to the General Manager (Personnel) was quite sufficient. I mention this decision of mine at the very beginning without recounting further facts so that the other points in controversy .....

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the notice of retirement. 8. Another letter dated August 12, 1996 is also annexed to the affidavit-in-opposition wherein the gist of a telegram, received by the Chief Manager (Pension) is reproduced. That telegram is also a telegram of refusal of acceptance. The Letter dated August 12, 1996 was also sent to the writ petitioner. 9. The letters dated August 12, 1996 and August 13, 1996 did not reach the writ petitioner until about August 17, 1996 when these letters were received at the Birpara Bra .....

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A second disciplinary proceeding was sought to be initiated against the writ petitioner far later sometime in the month of November, 1998 or thereabouts. At this time, there were apparently allegations regarding monetary transactions while the writ petitioner was serving as the Branch Manager of the Maskalibari Branch before his posting at Birpara. 12. The second writ petition is in regard to the first disciplinary proceeding. This issue is also inextricably connected with the issue of retiremen .....

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ng thereto. 14. If the petitioner succeeds, he establishes his proper retirement and does away with the two disciplinary proceedings at one go; if the petitioner fails he is ruined as to his service career because he has stayed away after August 12, 1996 in the belief that he is a retired employee and all the proceedings in the department have gone against him. 15. Before the details about the notice are given it is important to set out the relevant Rules, on which the parties have relied. 16. F .....

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t given under Sub-regulation (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3)(a) An employee referred to in Sub-regulation (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than thre .....

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ce in writing. 28-B. In case of an officer employee against whom disciplinary proceedings is contemplated or is pending or a case in respect of any criminal offence is under investigation, enquiry or trial, no such retirement will have effect unless it is accepted in writing by the Competent Authority and such acceptance is communicated to him." 18. While Mr. Sinha gave these Regulations and pressed those into service on behalf of the writ petitioner, Mr. Bhattacharya, appearing for the Ban .....

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roval in writing of competent authority and any notice or resignation given by such an officer before or during the disciplinary proceedings shall not take effect unless it is accepted by the Competent Authority. (ii) Disciplinary proceedings shall be deemed to be pending against any employee for the purpose of this regulation if he has been placed under suspension or any notice has been issued to him to show cause why disciplinary proceedings shall not be instituted against him and will be deem .....

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, 1996 which please be noted.'' 21. In support of his contentions, Mr. Sinha relied upon several cases of which the most important are Sangama 's case, , Shelat's case, reported in AIR 1978 SC 1109: 1978-II-LLJ-34, and the case of the State of Haryana, recently . 22. From these Mr. Sinha submitted that the Supreme Court has now clearly laid down that a Service Regulation permitting voluntary retirement by the employee gives him a right which can be unilaterally exercised by the e .....

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Baljit Singh's case was not followed by the Supreme Court in the case of the State of Haryana where a larger Bench decision was followed. Thus, if it is found that the notice was properly given by the writ petitioner it cannot but be held that he has effectively and duly retired. 25. Mr. Bhattacharya also submitted that if notice of refusal is given by the respondents . before the expiry of the period fixed in the notice of retirement, then it is enough if such refusal is written and posted .....

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so correct and I accept it. 28. Assuming that the notice correctly fixed the expiry of August 12, 1996 as the period after which the writ petitioner would retire, then and in that event, according to Mr. Bhattacharya's proposition, the refusal of retirement could be made by the authorities if they put that refusal into a concrete shape at the latest sometime on August 12, 1996, and also channelled it to the writ petitioner on that day in such manner as to lose control over that refusal, or t .....

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any event the letter dated August 13, 1996 is too late, and the letter dated August 12, 1996 is not a pointed refusal, but a communication of the gist of a telegram, received from an unspecified person by an unspecified person. 31. However, I base my decision about the invalidity of these refusals on the more substantial point that the date August 12, 1996 is not shown to be the day on which the letter was written and lost control of by the respondents authorities. 32. As regards the sub-regula .....

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ng mentioned in Sub-regulation 3(ii). Since none of the contingencies happened in the instant case the notice given by the writ petitioner is not invalidated. The letter of February 14, 1996 referred to by Mr. Bhattacharya is not a show-cause of any type; it called for an explanation from a subordinate with copy to the vigilance; the writ petitioner gave an explanation, although a little, in June 1996. 33. In the affidavit-in-opposition, it is mentioned that the writ petitioner's notice is i .....

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sent by the Regional Manager is not even required, to be known, unless the respondents can show that they lost control over the letter of August 13, 1996; without showing this, they cannot invoke the principles of law relied upon by Mr. Bhattacharya. 35. In my opinion, the notice does not suffer from any defect because of the specification of 90 days. Before I give the reasons for this I must mention that the telephone call of August 13, 1996, mentioned in the letter of the Regional Manager, is .....

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ice which specifies a period; the word "period" occurs in the proviso to Sub-regulation (2) of Regulation 29. The notice should not mention necessarily a date, but it must necessarily mention a date and a period. Mention of the date was perhaps out of abundant caution, but the mention of the period was a must. 37. The rule does not mention a calendar month or three calendar months. Mr. Bhattacharya relied on Section 3, Sub-section (35) of the General Clauses Act to show that a month me .....

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brevity of the month of February and the comparative length of the two successive months of July and August. By a period of notice applicable to these regulations we must mean a fixed period. That fixed period is of three months, in the minimum. The most reasonable construction of a period of three months is 90 days taking the average length of a month as 30 days. 39. The writ petitioner's notice of retirement was therefore valid, validly served and it became effective with the expiry of Aug .....

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