Holding

The proviso to Rule 5.32(B) renders the retirement automatically effective from the expiry of the three‑month notice period when the appointing authority does not refuse permission within that period.

Summary

The respondent, a medical officer, gave a three‑month notice of voluntary retirement on 16 August 1995 after completing twenty years of qualifying service under Rule 5.32(B) of the Punjab Civil Service Rules. The State of Haryana sought to compel him to resume duty, arguing that his absence during the notice period justified refusal of retirement. The High Court held that the retirement became effective on 16 November 1995 because the appointing authority did not refuse permission within the notice period, and quashed the Civil Surgeon’s order. On appeal, the Supreme Court examined the language of Rule 5.32(B) and relevant precedents, concluding that the proviso creates a positive right of automatic retirement when no refusal is communicated. It further held that alleged non‑attendance could not defeat the automatic effect of the rule. Consequently, the appeal was dismissed and the High Court’s order upheld.

Issues considered

Whether the proviso to Rule 5.32(B) of the Punjab Civil Service Rules makes voluntary retirement automatically effective upon expiry of the notice period if the appointing authority does not refuse permission.
Whether the respondent's alleged non‑attendance during the notice period can be a valid ground to withhold permission for retirement.
Whether acceptance of the retirement notice must be expressly communicated before the notice period expires.

Subjects

voluntary retirementPunjab Civil Service Rulesnotice periodautomatic retirementpensiongovernment service rulesinterpretation of statutory provisions

Judgment

A STATE OF HARYANA
v.
S.K. SINGHAL

APRIL 16, 1999

B [M. JAGANNADHA RAO AND S.N. PHUKAN, JJ.]

Punjab Civil Service Rules (Vol. II) Rule 5. 32 B(2) proviso-Respondent
after completing twenty years' qualifying service giving notice of voluntary
retirement-Appointing authority not refusing permission for retirement within
C three months' notice period-Whether on the express wording of the rule
retirement became automatically effective from the expiry ofthe notice period-
Held, yes

The respondent joined service on June 4, 1975 and was working as
D Medical Officer. On August 16, 1995 the respondent issued a notice to the
appellant seeking voluntiary retirement. Under the proviso to sub-rule (2) to.
Rule 5.32 B of the Punjab Civil Service Rules (Vol. JD, where the appointing
authority did not refuse permission for retirement before the expiry of three
months from the date of the notice, the retirement "shall become effective
from the date of the expiry of the said period."
E
The appellant did not respond till after the expiry of the notice period
but sent a telegram to the respondent on December 5, 1995 asking him to
join duty. The respondent contended that his retirement had become effective
from November 16, 1995 and there was no question of his joining duty. The
Civil Surgeon by order dated December 13, 1995 negatived the contention.
F
The respondent's writ petition was allowed by the High Court and the
order of the Civil Surgeon was quashed.

Dismissing the appeal, this Court
G HELD : Sub-clause (1) of Rule 5.32B of the Punjab Service Rules
contemplated a notice to retire' and not a request seeking permission to
retire. The proviso to sub-clause (2) made a positive provision that where the
appointing authority did not refuse to grant the permission for retirement
before the expiry of the period specified in sub-rule (1), the retirement shall
H become effective from the date of expiry of he said period. (726-E-FJ
714
STATE v. S.K. SINGHAL [M. JAGANNADHA RAO, J.] 715
Dinesh Chandra Sangama v. State of Assam, [1977) 4 SCC 441; B.J A
She/at v. State of Gujarat, [1978) 2 SCC 202 and Union of India v. Sayed
Muzaffar Mir, [1995) Supp. 1 SCC 76, followed.

HPMC v. Suman Behari Sharma, [1996) 4 SCC 584 and Power Finance
Corporation Ltd v. Pramod Kumar Bhatia, [1997] 4 SCC 280, distinguished.
B
Dr. Bal)it Singh v. State of Haryana, [1997) 1 SCC 754, dissented from.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2325 of
1999.

From the Judgment and Order dated 12.9.97 of the Punjab and Haryana C
High Court in C.W.P. No. 675of1999.

Jasbeer Malik and Prem Malhotra for the Appellants .

.Nidesh Gupta and Ms. Minakshi Vij for the Respondent.
D
The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. Leave granted.

The appellant, State of Haryana has filed this appeal against the
Judgment of the High Court of Punjab & Haryana in C.W.P. No. 675of1996 E
dated 12.9.1997. By tha' Judgment, the High Court allowed the writ petition
filed by the respondent'and quashed the order dated 13.12.95 of the Civil
Surgeon. The Civil Surgeon in his order stated that the respondent-writ
petitioner could not be deemed to have retired voluntarily w.e.f. 16.l l.95
pursuant to his notice dated 16.8.1995. The respondent had claimed that by
virtue of the proviso to sub-clause (2) of Rule 5.32.B of the Punjab Civil F
Service Rules (V ol.11), he must be deemed to have retired on the expiry of three
months of notice issued after completion of 20 years qualifying service.

The facts of the case are as follows. The respondent joined service on
4.6.1975. While he was working as Medical Officer, Civil Hospital Kaithal, the G
respondent was transferred on 8.8.1995 as Medical Officer, Primary Health
Centre Kharak Ramji, District Jind. The respondent joined at Jind on 16.8.95
and on the same date (i.e. 16.8.95), he issued a notice seeking voluntary
retirement, and the letter was addressed to the Commissioner and Secretary,
Health Department, Haryana, Chandigarh. He sent an advance copy to the
Commissioner Secretary and presented the application to his departmental H
716 SUPREME COURT REPORTS (1999] 2 S.C.R.

A head, Civil Surgeon, Jind. There was no response from the concerned
authorities till 16.11.1995. Government stated in its counter filed in the High ·
Court that the respondent was not allowed to retire w.e.f. 16.11.1995. ".as he
was absent from duty and he did not perform his duties during the period of
3 months notice". Long after the expiry of 3 months on 16.1 I .1995, a telegram
B was sent on 5. I2.95 asking the respondent to join duty. It was the case of
the respondent that his retirement was automatic on expiry of 3 months and
that in any event, there was no truth in the allegation that he did not perform
his duties in those 3 months. He pointed out that he wrote in the movement
register on 1.9.95 at I I a.m. that he was going to ineet the Senior Medical
Officer (SMO) incharge of Primary Health Centre, Kharak Ramji, Dr.Khazan
C Singh and had placed a copy of the station leave in the Movement Register,
that he took the second copy with himself to seek permission but at Jind, Dr.
Dhazan Singh was not available because on that day, the Govt. had declared
1st and 2nd Sept. 1995 as holidays on account of the assassination of the
Chief Minister, Sri Beant Singh. On 4.9.95, the respondent had to give evidence
in the Kaithal Court. (He had started from Kaithal on 1.9.95 itself). Thereafter,
D he had to give evidence in another Court on 6.9.95 and he could not go to
Kharak Ramji to meet the SMO. Unfortunately, on 5.10.95, there were floods
and the roads reaching to Jind were blocked. He sent a letter dated 7.9.95 to
the Civil Surgeon, Jind from Kaithal informing him that due to floods he was
unable to report at his head quarters and that he would be able to do so only
E after the floods receded and transport services were restored. The respondent .
obtained certificates from the Courts regarding his attendance at those Courts.
He met the SMO and requested that his salary bill could be forwarded. The
SMO said that the respondent could not join without permission of the
Director and without explaining his absence to the Civil Surgeon. These facts
were put on record in a separate letter dated 6.10.95 from Kaithal to the
F Director seeking permission to join duty at PHC, Kharak Ramji. He had to stay
at Kaithal from 7 to 10th due to floods, then he attended Court·at Kaithal from
11 to 14th Sept. 1995, continued to stay at Kaithal due to floods from 15 to
17th Sept. 1995, (attended Court there from 18 to 22nd September 1995). Then
23rd to 25th were Gazetted holidays (24th was Sunday). The floods continued
G and there was no transport. He attended Court again from 27th to 29th Sept.
and had to stay at Kaithal on 30.9.95 due to floods. Ist Oct. was a Sunday,
2nd and 3rd Oct. were gazetted holidays. Respondent approached the SMO
Kharak Ramji on 3.10.95 evening. The latter asked the respondent to see the
Civil Surgeon, Jind. The respondent gave a letter on 4.10.95 (duly forwarded
--
by the SMO) narrating the above facts and soliciting permission to join duty
H w.e.f. 4.10.95 & seeking salary from Sept. 1995. The Civil Surgeon addressed
STATE v. S.K. SINGHAL [M. JAGANNADHA RAO, J.] 717
a letter to the Director on 4.10.95 seeking the letter's approval for the A
respondent joining. The respondent sent a further letter to the Director on
6.10.95 giving the above facts and sought pennission to join. No reply was
received. Respondent attended the Criminal Court on 6.10.95, 12.10.95, 14.10.95,
18.10.95 to 20.10.95, 27.10.95, 30.10.95, 9.11.95, 14.11.95, 21.11.95 and 23.11.95
for giving evidence as certified by the Court. For the first time he received
a letter dated 16.11.95 from the Civil Surgeon, Jind that the respondent should B
join after approval by the Director. According to the respondent, in view of
the above facts, the allegation that he was not on duty after 16.8.95 was not
correct. No letter was received from the Commissioner and Secretary to Govt.
before 16.11.1995.

In the meantime, the 3 months period was over on 16.11.95. The
c
respondent sent a letter on 23.11.95 to the Commissioner/Secretary, Health
narrating the above facts and requested to treat him as retired w.e.f. 16.11.95
& pay him salary for Sept., Oct. and upto 16.11.95 in November and grant him
retiral benefits. On 29.11.;95 a telegram was sent by the appellant (received
by respondent on 30.11.95) requesting him to join at kharak Ramji at once. The D
respondent sent a reply dated 2.12.95 to the Civil Surgeon, Jind stating that
he stood retired w.e.f. 16.11.95 and so there was no question of his joining.

It is in the light of the above facts that it has to be considered if the
respondent must be deemed to have retired. That is the crucial question.
Question also arises whether the allegation that the respondent was "not E
attending to duties" after notice was relevant and could be a valid ground
for refusing to pennit the voluntary retirement coming into force under Rule
5.32 (B).

The said rule 5.32 (B) of the Punjab Civil Service Rules, (Vol.2) reads as F
follows:

"Rule 5.32 (B):

(l) At any time a Govt. e'llployee has completed twenty years
qualifying service, he may, by giving notice of not less than three G
months in writing to the appointing authority retire from service.
However, a Government employee may make a request in writing to
the appointing authority to accept notice of less than three months
giving reason therefor. On receipt of a request, the appointing authority
may consider such request for the curtailment of the period of notice
of three months on merits and if it is satisfied that the curtailment of H
718 SUPREME COURT REPORTS [1999) 2 S.C.R.

A the period of notice will not cause any administrative inconvenience,
the appointing authority may relax the requirement of notice of three
months on the condition that the Government employee shall not
apply for commutation of a part of his pension before the expiry of
the period of notice of three months.

B (2) The notice of voluntary retirement given under sub rule (1)
shall require acceptance by the appointing authority subject to rule
2.2. ofpb. C.S.R. Vol. II:

Provided that where the appointing authority doe's not refuse to
grant the permission for retirement before the expiry of the period
c specified in sub rule (1) supra, the retirement shall become effective
from the date of expiry of the said period:

Provided further that before a Govt. employee gives notice of
voluntary retirement with reference to sub-rule (1) he should satisfy
himself by menas of a reference to the appropriate authority that he
D has in fact, completed twenty years service qualifying for pension."

Rule 2.2 (a) of the Punjab Civil Service Regulation (Vol.II) referred to in
Rule 5.32(b)(2) reads as follows :

"Rule 2.2 (a) Future good conduct is an implied condition of every
E grant of a pension. The (appointing authority) reserve to itself the
right of withholding or withdrawing a pension or any part of it if the
pensioner be convicted of serious crime or be guilty of grave
1
misconduct. The decision of the (appointing authority) on any question
of withholding or withdrawing the whole or any part of pension under
this rule shall be final and conclusive." -
F
It will be noticed that under Rule 5.32 B, a government employee who
has completed 20 years of qualifying service may, by giving notice of not less
than 3 months in writing to the appointing authority, retire from service. There
is provision for requesting for relaxation of the notice period of 3 months and
G for consideration thereof. As to what the appointing authority is to do is
governed squarely by sub-clause (2). That sub-clause states that the notice
of voluntary retirement given under sub-clause (1) "shall" require acceptance
by the appointing authority subject to Rule 2.2 of the Punjab Civil Service
Regulation (Vol.II). Acceptance of the request is subject to Rule 2.2 of the .
Rules. But the proviso to sub-clause (2) of Rule 5 .32B states that if the .
H permission to retire is not refused within the period specified in sub-clause
STATE v. S.K. SINGHAL [M. JAGANNADHA RAO, J.] 719
(I) the retirement shall become effective from the date of expiry of the period. A
Therefore, it is clear that if a person has completed 20 years qualifying service
and has given a notice under rule 5.328 of 3 months (or if his request for
relaxation of 3 months is accepted), then the request "shall" be accepted
subject to invoking the provision of Rule 2.2 of the Punjab Civil Service
Regulation (Vol.II). Under Rule 2.2, the "future good conduct" of an employee B
is an implied condition of every grant of pension. In other words, what all it
means is that even ifthe acceptance of the voluntary retirement is mandatory,
there is an obligation cast on the retired employee to maintain good conduct
after such retirement. The words "future good conduct" mean good conduct
after retirement. If the employee does not continue to maintain good conduct
after retirement, then the Government can withhold or withdraw the pension C
or a part of it in case he is convicted of serious crime or in case he be guilty
of gravn misconduct. Such decision to withhold or withdraw the whole or part
of pen~ion would be final and conclusive, that is to say, so far as the
governmental hierarchy is concerned. It will be noticed that Rule 2.2 does not
obstruct the voluntary retirement to come into force automatically or expiry
of 3 months and it only enables withdrawal or withholding of pension subject D
to certain conditions, to a retired employee.

The employment of government servants is governed by rules. These
rules provide a particular age as the age of superannuation. Nonetheless, the
rules confer a right on the Government to compulsorily retire and employee E
before the age of superannuation provided the employee has reached a
particular age or has completed a particular number of years of qualifying
service in case it is found that his service has not been found to be satisfactory.
The rules also provide that an employee who has completed the said number
of years in his age or who has completed the prescribed number of years of
qualifying service could give notice of (say) three months that he would F
voluntarily retire on the expiry of the said period of three months. Some Rules
are couched in language which results in an automatic retirement of the
employee upon expiry of the period specified in the employee's notice. On the
other hand, certain Rules in some other departments are couched in language
which makes it clear that even upon expiry of the period specified in the G
notice, the retirement is not automatic and an express order granting permission
is required and has to be communicated. The relationship of master and
servant in the latter type of rules continues after the period specified in the
notice till such acceptance is communicated; refusal of permission could also
be communicated after 3 months and the employee continues to be in service.
Cases like Dinesh Chandra Sangma v. State ofAssam & Others, [1977] 4 SCC H
720- SUPREME COURT REPORTS [1999] 2 S.C.R.

A 441; B.J. She/at v. State of Gujarat~ Others, (1978] 2 SCC 202; and Union
of India & Others v. Sayed Muzaffar Mir, (1995] Supp. l SCC 76 belong to
the former category where it is held that upon expiry of the period, the
voluntary retirement takes effect automatically as no order of refusal is passed
within the notice period. On the other hand HPMC v. Suman Behari Sharma,
[l 996] 4 SCC 584 belongs to the second category where the Bye-laws were
B interpreted as not giving an option "to retire" but only provided a limited right
to "seek" retirement thereby implying the need for a consent of the employer
even if the period of the notice has elapsed. We shall refer to these two
categories in some detail.

C In Dinesh Chandra Sangma's case (1977] 4 SCC 441, this Court was
dealing with F.R. 56 (c) as it stood then. The Court pointed out that FR 56(b)
and FR 56(c) referred to rights respectively conferred on the State and on the
employee. FR 56(b) conferred a right on government to compulsorily retire an
employee in public interest by giving him notice of not less than 3 months
in writing or 3 months' pay and allowances in lieu of such notice, after he
D attained 50 years of age or had completed 25 years of service, whichever was
earlier. Correspondingly FR, 56(c) stated as follows :

"FR 56(c): Any Government servant may, by giving notice of not less
than three months in writing to the appropriate authority, retire from
service after he has attained the age of fifty years or has completed
E 25 years of service, whichever is earlier.

It was held by the three Judge Bench that it was clear that effect of FR 56(c)
was statutory unlike in the case of contracts of employment requiring an
express order of acceptance of tlie retirement notice. It was stated (p.445):

F "There was no question of acceptance of the request for voluntary
retirement by the Government when the Government servant exercises
his right under FR 56(c)."

It was again stated (p.447):

"FR 56 is one of the statutory rules which binds the Government as
G
well as the Government Servant. The condition of service which is
envisaged in Rule 56(c) giving an option in absolute terms to a Govt.
Servant to voluntarily retire with three months' previous notice, after
he reaches 50 years of age or has completed 25 years of service, -
-
cannot therefore be equated with a contract of employment as ·
H envisaged in Explanation 2 to Rule 119."
STATE v. S.K. SINGHAL [M. JAGANNADHA RAO, J.] 721

and at (p.447-448) as follows: A
"The appellant has voluntarily retired by three months' notice, not
in accordance with an express or implied term of his contract of
employment, but in pursuance of a statutory rule."

Another three Judge Bench in B.J.Shelat's case [1978] 2 sec 202 was B
dealing with Rule 161 (2)(i) of the Bombay Civil Service Rules which contained
a proviso similar to the proviso (b) or FR 56(K) to the effect that "it shall be
open to the appointing authority to withhold permission to retire to a
Government servant who is under suspension, or against whoqi departmental
proceedings are pending or contemplated, and who seeks to retire under this
sub-clause". It was noticed that no suspension was in force and no C
departmental proceedings were pending but on facts, it could be said that a
departmental proceeding was under contemplation. However, on a reading of
the Rule and the proviso, it was held that inasmuch as no order refusing
permission was passed or communicated within the notice period, the voluntary
retirement took effect automatically. The Court observed that this result followed D
even though the right to retire conferred on the employee was not as absolute
as in Dinesh Chandra Sangma's case but was a qualified right. The Court held
(p.205) as follows:

"A right is conferred on the Government Servant under Rule 161 (2)(ii)
to retire by giving not less than three months; notice on his attaining E
the prescribed age. Such a right is subject to the proviso which is
incorporated to the sub-section which reads as follows ......... .

But for the proviso, a Government servant would be at liberty to
retire by giving not less than three months' notice in writing to the
appointing authority on attaining a prescribed age. This position has F
been made clear by this Court in Dinesh Chandra Sangam v. State
ofAssam, [ 1977] 4 SCC 441 where the Court was considering the effect
of the (Assam) Fundamental Rule 56(c) ........ "

The Court further stated (p.206) :
G
"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 ....
Thus the permission to retire can be withheld by the appointing authority
either when the Government servant is under suspension or against whom
departmental proceedings are pending or contemplated ........ No departmental H
722 SUPREME COURT REPORTS [1999] 2 S.C.R.

A proceeding was pending but on the facts, one cannot say that a proceeding·
was not under contemplation."

Having stated that the right conferred on the government servant was
not absolute but conditional and that one of the conditions, namely, that
departmental proceedings were contemplated, was in existence which could
B have been taken advantage of by the Govt. the Court held (p.207) as follows: ·

"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 are of the opinion that the proviso contemplates a
positive action by the appointing authority."
c
and it was finally declared (p.207):

"For the proviso to become oper~tive, it is necessary that the
government should not only take a decision but communicate it to the
govt. servant ......... admittedly the order of suspension was not
D communicated before the date of supernnuation ".

And explaining the inditical proviso in the proviso (b) to FR 56(k), this Court
again reiterated that (p.208) :

"It is incumbent on the govt. to. communicate to the government
E servant its decision to withhold permission to retire on one of the
grounds specified in the proviso."

It was further made clear that the appointing authority

"has no jurisdiction to take disciplinary action against a government
F servant who had effectively retired."

It was held (p.209) that :

"disciplinary action cannot be taken after the date off retirement".

G Therefore, it was necessary to communicate the decision of refusal of permission
before the expiry of the notice period.

The third case which falls in the first category is the one in Union of
India & Others v. Sayed Muzaffar Mir, [1995] Supp. I SCC 76 decided by a
Bench of two learned Judges. In this case, the above-said two rulings were
H followed. The case arose under Rule 1802 (b)(l) of the Railway Establishment
- STATE v. S.K. SINGHAL [M. JAGANNADHA RAO, J.]

Code. In that case, the respondent had given a notice on 22.7.85 of3 months
to the Railways to retire from service as visualised by Rule 1802(b). The
723

A

period expired on 21.10.1985 and the order of removal was passed on 4.11.1985.
The proviso to the Rule pennitted withholding of permission to retire in case
the employee was under suspensioo. As a fact, the employee was under
suspension at the relevant time and this could have been taken advantage B
of by the government. In fact, Rule 180 I(d) which started with a non-obstante
clause, stated that the competent authority might require a railway servant
under suspension to continue his service beyond the date of his retirement
in which case he shall not be pennitted by that authority to retire from service
and shall be retained in service till such time as required by that authority.
It was held that even though the officer was under suspension and the C
request for retirement could be denied, still an oraer withholding such
permission or requiring him to continue was required to be passed. It was
"admitted" that no such order was passed. Therefore, it was held that the
employer had not exercised a right given to it under Rule 180 I (d). The Court
further observed that in Dinesh Chandra Sangma's case 1977 (4) sec 441 it D
was held that "the same does not require acceptance and comes into effect
. on the completion of the notice period" and that decision was followed in B.J.
Shelat's case [1978] 2 SCC 202. The Court finally held:

"The period ofnotice in the present case having expired on 21.10.1985,
and the first order of removal having been passed on 4.11.1985, we E
hold that the Tribunal had rightly come to the conclusion that the
order of removal was non-est in the eye of law."

Thus form the aforesaid three decisions it is clear that if the right to
voluntarily retirement is conferred in absolute terms as in Dinesh Chandra
Sangma 's case by the relevant rules and there is no provision in Rules to F
withhold permission in certain contingencies the voluntary retirement comes
into effect Automatically on the expiry of the period specified in the notice.
If, however, as in B.J. Shelat's case and as in Sayed Muzaffar Mir's case, the
concerned authority is empowered to withhold permission to retire if certain
conditions exist, viz. in case the employee is under suspension or in case a G
departmental inquiry is pending or is contemplated, the mere pendency of the
..- - suspension or departmental inquiry or its contemplation does ·not result in the
notice for voluntary retirement not coming into effect on expiry of the period
specified. What is further needed is that the concerned authority must pass
a positive order withholding permission to retire and must also·communicate
the same to the employee as stated in B.J.She/at's case and in Sayed Muzaffar H
724 SUPREME COURT REPORTS [1999] 2 S.C.R.

A Mir's case before the expiry of the notice period. Consequently, there is no
requirement of an order of acceptance of the notice to be communicated to .l
the employee nor can it be said that non.-communication of acceptance should
be treated as amounting to withholding of permission.

Before referring to the second category of cases where the rules require
B a positive acceptance of the notice of voluntary retirement and communication
thereof, it is necessary to refer to the decision of this Court in Dr. Baljit Singh
v. State of Haryana, [1997] 1 SCC 754 strongly relied upon by the learned
counsel for the appellants and to Pc:wer Finance Corporation Ltd. v. Pramod
Kumar Bhatia, [1997] 4 SCC 280. the formar case arose under Rule 5.32(8) of
C the Punjab Civil Service Rules. That rule extracted earlier contains an express
provision in the proviso to sub-section (2) that the retirement takes effect
automatically if refusal is not communicated within 3 months. In that case,
when the employee gave notice for voluntary retirement on 20.9.1993, criminal
cases were pending against him. After expiry of 3 months, on 25.2.1994, the
competent authority declined to accept the notice. A two Judge Bench of this
D Court, however, held that the voluntary retirement did not come about
automatically on the expiry of the notice period but that it could take effect
only upon acceptance of the notice by government and that the acceptance
must also be communicated and till then the jural relationship of master and
servant continues. This Court referred only to the decision of the two Judge
E Bench in Sayed Muzajfar Mir's, case [1995] Supp. 1 SCC 76 and stated that
case was to be confined to its own facts. The two Judge Bench of this Court
in Dr. Baljit Singh 's, case [1997] l sec 754 did not notice that there were two
three Judge Bench cases in Dinesh Chandra Sangma and Shelat taking the
view under similar rules that a positive order was to be passed within the
notice period withholding permission to retire and that the said order was also
F to be communicated to the employee during the said period. By stating that
an order of acceptance of the notice was necessary and that the said
acceptance must be communicated to the employee and till that was done the
jural relationship continued and there was no automatic snapping thereof on
expiry of 3 months period, the Two Judge Bench, in our view, has gone
G contrary to the two three Judge Bench cases which were not brought to its

-
notice. In the above circumstances, we follow the two three. Judge Bench
cases for deciding the case before us.

Learned counsel for the appellant also relied on a two Judge Bench
decision in Power Finance Corporation Ltd v. Pramod Kumar Bhatia, [1997]
H 4 SCC 280. That was a case where the letter of voluntary retirement was
STATE v. S.K. SINGHAL [M. JAGANNADHA RAO, J.] 725

conditionally accepted subject to payment of dues and the employee wrote A
a further letter seeking adjustment thereof but before that was done the
scheme itself was withdrawn. There are again some observations made to the
effect that there mu.st be acceptance of request to retire and that it must be
communicated. Neither Dinesh Chandra Sangma nor Shelat was referred to.
B
- In our opinion, the express provision in the proviso to sub-rule 2 of Rule
5.32B in the case before us does not permit such a view to be taken. The said
observations again run c:ontrary to the decision in the two three Judge Bench
cases referred to above. Our comments on Baljit Singh apply equally to this
case, so far as the observations are concerned.

We then come to the second category of cases where the rules require C
that an order of acceptance of notice be passed to make the voluntary
retirement effective. In H.P.MC. v. Suman Behari Sharma, (1996] 4 SCC 584,
it will be noticed, the principle in Dinesh Chandra Sangma's case was accepted
but the case was distinguished on the ground that the Bye-law 3.8(2) in
HPMC case provided differently and that under that Bye law an employee
could be permitted at his request to retire on completion of 25 years service D
or 50 years of age. Sub-para (5) of Bye-law 3.8 stated as follows:

"(5) : Notwithstanding the provision under para (2) above, the·
Corporation employees who have a satisfactory service record of 20
years may also seek retirement from the service of the corporation
after giving three months' notice in writing to the appropriate authority. E
Persons under suspensions would not be retired.under this clause
unl~ss proceedings of the case against them are finalised ... ".

While Sub-clause (2) speaks of 25 years service, sub-clause (5) speaks of 20
years service.
F
The employee applied on 26.11.1990 for voluntary retirement effective
from 30.11.1990 and also requested for waiver of notice of 3 months. He did
not report to duty right from 1.12.1990. Earlier on 12.12.1989, a charge sheet
was issued against him for certain acts of misconduct. On 26.12.1990 he filed
a reply to the chargesheet. On 22.8.1992 another chargesheet was served for G
unauthorised absence and one more on 18.9.1992. On 30.9.1992 he approached
the Tribunal contending that he stood retired on expiry of 3 months from
notice, w.e.f. 26.2.1990. The Tribunal accepted the said plea. Reversing the
order of the Tribunal, this Court held while distinguishing Dinesh Chandra
Sangma's case and other similar High Court Judgemnts, that clause (2) of the
Bye law merely gave a right to make a request and the request would become H
726 SUPREME COURT R,EPORTS [1999] 2 S.C.R.

A effective only if permitted. Under clause (2) of the Bye law, it was a 'right to
a request' and not 'a right to retire'. If the request was not accepted and
--
. '.lm
permission was not granted, the employee could not claim that there was an
automatic retirement on expiry of the period. Even under sub-clause (5) while
it was true that there was a non-obstante clause, it was only an exception to.
B clause (2) to a limited extent i.e. completion of 20 years satisfactory service\
[rather than 25 under clause (2)] but the grant of 'permission' to the request
seeking retirement was necessary even under the·sub-clause (5) and was nqt
-
dispensed with. If under clause (2) a person who had put in 25 years had to
seek to retire and had to be 'permitted to retire', a person with only 20 years
service under clause (5) could not have been placed on a better footing it was
C held. The Court emphasised (p.588-589):

"The words 'seek retirement' in para 5 indicate that the right which
is conferred by it is not the right to retire but a right to ask for
retirement. The word 'seek' implies a request by the employee and
corresponding acceptance or permission by HPMC. Therefore, ther~
D cannot be automatic retirement or snapping of service relationship on
expiry of three months period." }

c
On that basis, it was held that though the rejection of the request was not
communicated within the notice period, there was no automatic retirement.
There are no such provisions in the case before us.
E In the case before us sub-clause (I) of Rule 5.32B contemplates a
'notice to retire' and not a request seeking permission to retire. The further.
"request" contemplated by the sub-section is only for seeking exemption from
the 3 months period. The proviso to sub-clause (2) makes a positive provision
that "where the appointing authority does not refuse to grant the permission
F for retirement before the ·expiry of the period specified in sub-rule (I), the
retirement shall become effective from the date of expiry of the said period.
The case before us stands on a stronger footing than Dinesh Chandra
Sangma 's case so far as the employee is concerned. As already stated Rule
2.2 of Punjab Civil Service Rules Vol.II only deals with a situation of withholding
G or withdrawing pension to a person who has already retired.
For the aforesaid reasons, we follow the two three Judge judgments in
Dinesh Chandra Sangma and B.J. Shelat and the two judgment in Sayed
Muzaffar Mir's case in preference to the two !udge judgment in Dr. Baljit
Singh 's case.

H So far as the plea of the State in regard to absence from duty during
STATE v. S.K. SINGHAL [M. JAGANNADHA RAO, J.] 727

the notice period is concerned, the High Court has shown that it is A
unsupportable on facts. In any event, in view of the express provision in the
proviso to sub-rule (2) of Rule 5.32B referred to above requiring communication
of rejection within the notice period, the said allegations of absence even if
true, cannot help the State.

For the aforesaid reasons, the appeal preferred by the State is dismissed B
but in the circumstances without costs. The order of the High Court will be
implemented within 3 months from the receipt of this order.

S.M. Appeal dismissed.