B.S. Danewalia vs The Union of India (UOI) and Another

J.M. Tandon, J.—The Petitioner B. S. Danewalia was born on August 3, 1925, and was appointed to Indian Police Service on November 4, 1950. He was appointed Inspector-General of Police (Punjab) on July 20, 1977. D. S. Grewal having been appointed Inspector-General of'' Police on February 19, 1980, the Petitioner handed overt the charge of this office on. February 20, 1980, and proceeded on leave. On March 5, 1980, the Petitioner addressed a communication (P. 1) to the President of India through the Home Secretary (Punjab) seeking voluntary premature retirement after the expiry of his leave. On March 12, 1980, he addressed another letter (P. 2) to the Chief Secretary (Punjab) saying that the notice of three months of his voluntary premature retirement may be deemed from the forenoon of February 20, 1980, when he handed over the charge of the office of Inspector-General of Police to his successor. The Petitioner still wrote another letter (P. 3) to the Home Secretary (Punjab) on March 14, 1980, enclosing a cheque for Rs. 9,570 being his three months'' pay and allowances in lieu of three months'' notice as required under Rule 16(2) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, (hereinafter the Rules) with the prayer that he be retired from service forthwith. The Petitioner having received no response to his letter (P. 3) has filed the present writ praying for a declaration that he should be deemed to have retired from service with effect from March 14, 1980. The cause for anxiety on the part of the Petitioner for an early retirement is his desire to contest the forthcoming State Assembly Elections which are to be held in May, 1980.

The Respondents Union of India and the State of Punjab have contested the writ. The Joint Secretary Home (Punjab) in his return on behalf of the State of Punjab has averred that there being no provision in the All India Service Rules entitling an officer to pay three months'' pay and allowances in lieu of notice as required under Rule 16(2) of the Rules, the Petitioner cannot be deemed to have retired with effect from March 14, 1980, when he sent the letter (P. 3) along with a cheque for Rs. 9,570. The Petitioner shall retire after the expiry of the period of three months of a valid notice under Rule 16(2) of the Rules.

The relevant sub-rules of Rule 16 of the Rules be read as under:

Superannuation gratuity or pension.-

(1) A member of the Service shall be required compulsorily to retire from the service with effect from the afternoon of the last day of the month in which he attains the age of 58 years.

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(2) A member of the Service may, after giving at least three months'' previous notice in writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice:

Provided that no member of the Service under suspension shall retire from service except with the specific approval of the State Government concerned.

(2A) A member of the service may, after, giving three months''. previous notice in writing to the State Government concerned, retire from service on the date on which he completes, .20 years of qualifying service or any date thereafter to be specified in the notice:

Provided that a notice of retirement given by a member of the service shall require acceptance by the State Government concerned if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the Service could have retired from service under Sub-rule (2).

(3) The Central Government may, in consultation with the . State Government concerned and after giving a member of the Service at least three, months'' previous notice in writing or three months'' pay and allowances in lieu of such, notice require that member to retire in public interest from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.

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Under Rule 16(3) the Central Government can retire a member of the Service who has completed 30 years of qualifying service or has attained the age of 50 years by giving him three months'' notice or three months'' pay and allowances in lieu of such notice. A member of the Service can, however, seek retirement by giving three months'' notice.

The learned Counsel for the Petitioner has argued that irrespective of the fact that under Rule 16(2) of the Rules it is not provided that a member of the Service can seek voluntary premature retirement by giving three months'' pay and allowances in lieu of notice period he can still exercise such a right. Reliance has been placed on Punjab State v. Shri Mohan Singh Mahli, formerly Director of Animal Husbandry, Punjab 1970 S.L.R. 194, Shri Mohan Singh Malhi Vs. State of Punjab, and Ram Nath v. The State of Punjab and Anr. 1976 (2) S.L.R. 135.

In Punjab State v. Shri Mohan Singh Malhi, formerly Director of Animal Husbandry, Punjab, (supra), the following question of law was referred to the Full Bench for decision:

Whether under Rule 5.32(c) of the Punjab Civil Service Rules, Volume II, the Government can retire an employee on or after he attains the age of 55 years by giving him three months'' salary and allowances in lieu of three months'' notice.

The Full Bench replied this question in the affirmative. It was held:

There is no reason why Government cannot give three months'' salary and allowances in lieu of three months'' notice. Undoubtedly, the employee will not suffer any loss or injury if he is paid three months'' salary in lieu of notice, because it is needless to point out that for computing pension, gratuity, leave benefit and other allowances, etc. his service will be counted up to the end of the notice period for which salary had been paid to him. The main idea of giving three months'' notice, is to enable the Government servant to make arrangements for his re-employment elsewhere or some other programme for his future. After he had served the Government for such a long period, he should not be suddenly thrown on the street. The notice period can be utilised by him for settling his affairs and deciding his future course of action, if instead of being given notice, he was paid three months'' salary he would, in a way, be in a better position. He will have more leisure at his disposal for doing all those things which he would have done during the notice period, because he will have the additional advantage that he will not have to spend time in the office doing his duty. The giving of not less than three months'' notice mentioned in the rule is not such a condition, the non-compliance of which would result in the retirement order becoming void. If the required notice is not given or even if the three months'' salary and allowances are not paid, the retirement order would not become illegal, because, that is not a condition precedent for retiring a Government servant after he has attained the age of 55 years. The employee, undoubtedly, would be entitled to get three months'' salary and allowances, if he is retired forthwith. That right cannot be denied to him. But this is '' the only right that he possesses under this rule, because, the appointing authority has the undisputed right to retire him on or after he has attained the age of 55 years without assigning any reason whatsoever. The retirement order will come into operation immediately after it is passed and conveyed, even, if the required notice of three months is not given or three months'' salary and allowances in lieu thereof are not paid. The employee is, however, entitled to get the salary and allowances for that period from the Government.

The Full Bench view in Punjab State v. Shri Mohan Singh Malhi, formerly Director of Animal Husbandry, Punjab, (supra) was upheld by the Supreme Court in Shri Mohan Singh Malhi Vs. State of Punjab, . It was held:

The rule merely provides for a contingency in which a retiring pension is to be granted to a Government servant, Assuming that the rule by implication requires three months'' notice to be given to a Government servant of the description referred to therein before retiring him from service, that requirement cannot be said to be violated if instead of three months'' notice, payment of three months'' salary and allowances is made to him. The object of the notice, is to give sufficient time to the Government servant whom it is intended to retire from service to find employment elsewhere and to prevent his being suddenly left in lurch without any means of livelihood. If that be the object of the notice, no prejudice can be said to be caused to the Government servant if in lieu of three months'' notice, he is given three months'' salary and allowances. In fact, he is put in a more advantageous position by being paid three months'' salary and allowances instead of notice for that period as he is thereby relieved of the obligation to spend his time in the office attending to his duty and gets all the time to himself which he can utilise in finding an alternative job or settling his affairs. Thus, it can be held that if the appointing authority wants to exercise its right to retire a Government servant other than a Class IV Government servant who has attained the age of 55 years, there is nothing to debar it from validly doing so by payment to him of a sum equivalent to the amount of his pay and allowances for the period of the notice.

A near similar view was expressed on the point under consideration in Ram Nath v. The State of Punjab and Anr. 1976 (2) S.L.R. 135, where the Administrator, Municipal Committee, Bhatinda, discharged some employees from the service of the Municipal Committee with immediate effect by giving them wages for one month.

The argument of the learned Counsel for the Petitioner is that the Government has been held to be competent to retire a rent servant under Rule 5.32(c) of the Punjab Civil Services Rules, . volume II, by giving him three months'' pay and allowances in lieu of notice period even in the absence of a provision to that effect in the rule. The same proposition should hold good in the case of a Government servant who seeks voluntary retirement thereunder. In other words, a Government servant can also seek voluntary retirement forthwith by giving three months'' pay and allowances to Government in lieu of notice period. The argument proceeds that the ratio of the authorities is fully applicable to Rule 16 of the Rules with the result that the Petitioner being a member of the Service is competent to seek voluntary premature retirement by giving three months'' pay and allowances in lieu of notice required under Rule 16(2) of the Rules. The Petitioner sent a cheque for Rs. 9,570 on March 14, 1980,--vide letter P. 3 and as such he should be deemed to have retired from service with effect from that date. We see no force in this contention. In all the authorities relied upon by the learned Counsel for the Petitioner the Court examined the right of the Government to retire a member of the Service by giving him three months'' pay and allowances in lieu of notice period. The reason given for taking a favourable view for the Government was that no prejudice was caused to the member of the Service in the event of his being paid three months'' pay and allowances in lieu of notice period. It was rather held that a member of the Service in such a situation is put in a more advantageous position by being paid three months'' salary and allowances instead of notice for that period as he is thereby relieved of the obligation to spend his time in the office attending to his duty and gets all the time to himself which he can utilize in finding an alternative job or settling his affairs. This reasoning cannot justifiably be adopted where the retirement is sought by a member of the Service. The rule provides that a member of the Service shall give three months'' notice for seeking premature voluntary retirement. It has been so provided to enable the Government to make some alternative arrangement. This right shall stand negatived if Rule 16(2) of the Rules is interpreted in the manner canvassed by the learned Counsel for the Petitioner. Rule 5.32(c) of the Punjab Civil Services Rules, Volume II, was interpreted in favour of the Government because the interpretation ultimately operated for the benefit of the member of the Service who was to be given a notice. It will not be the case if interpretation of Rule 16(2) of the Rules as propounded by the learned Counsel for the Petitioner is upheld. It will cause hardship to the Government who is entitled to the notice. We have, therefore, no hesitation in holding that Rule 16(2) of the Rules cannot be interpreted entitling a member of the Service to seek voluntary premature retirement by giving three months'' pay and allowancs in lieu of notice period.

Under Rule 16(2) of the Rules a member of the Service can seek premature voluntary retirement whereas the Central Government can retire a member of the Service under Rule 16(3). Under Rule 16(3) of the Rules the Central Government can retire a member of the Service by giving three months'' notice or three months'' pay and allowances in lieu of such notice. There is no provision under Rule 16(2) of the Rules for seeking retirement by a member of the Service by giving three months'' pay and allowances in lieu of notice period. It is thus clear that the rule making authority consciously denied the right to a member of the Service for seeking premature voluntary retirement by giving three months'' pay and allowances in lieu of notice period.

In view of discussion above, the Petitioner cannot fee deemed to have retired from service with effect from March 14, 1980, when he sent the letter P.3 along with a cheque for Rs. 9,570.

The writ consequently fails and is dismissed with no order as to costs.