B. J. SHELAT versus STATE OF GUJARAT & ANR.

Citation: [1978] 3 S.C.R. 553 · Decided: 28-03-1978 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

) 
L 
-
• 
553 
B. J. SHELAT 
v. 
STATE OF GUJARAT & ANR. 
March 28, 1978 
[R. S. SARKARIA, N. L. UNTWALIA AND P. S. KA!LASAM, JJ.] 
Bombay Civil Service Rules-r. 161(2) (ii) 
proviso--Scope of-Government 
liad power to withhold permission for voluntary 
retirement if departmentat 
proceedings are under contemplation-Government servant gave due notice of 
intention to retire-Order of suspension not comniunicated to Government ser-
vant before retirement-Communication if incumbent-Government if 
com-
petent to take disciplinary action after retirenient. 
Rule 161 (2)(ii) of the Bombay 
Civil Services 
Rules provides : 
"any 
Government servant to whom clause (a) applies may, by giving notice of not 
less than three months in writing to the Appointing Authority, retire 
from 
service .... and in any other case, after he has attained the age of 55 years. 
Provided that it shall be open to the Appointing _Authority to 
withhold' 
permission to retire to a Government servant who is under suspension, or against 
"°·horn departmental proceedings are pending or contemplated, and who seeks 
to retire under this sub-clause." 
During the pendency of certain appeals before the High Court from the 
decisions of the &J)pellant who was a Judicial Officer the accused in those cases 
filed affidavits aUeging corruption on the part of the appellant. In the mean-
time on July 17, 1973 the appellant gave a notice under r. 161 communicating 
his desire to retire on attaining the age of 55 years, on December 3, 1973. On 
December 11, 1973, pending finalisation of departmental proceedings 'vhich 
were under contemplation, the High Court sbspended him from service. 
The appellant's v..Tit petition challenging the Governments nction in taking 
disciplinary action against him after retirement was dismissed by the High Court. 
The Special Leave Petition filed by him in this Coun was allowed to be with~ 
drawn reserving to him the right to agitate the question whether disciplinary 
action could be taken against him after retiremiynt. 
Eventually, hovvever, he 
was dismissed. 
On the question whether it was incumbent on the Government to communi-
cate to the Government servant its decision to \1.'ithhold permission to retire 
on one of the grounds specified in the proviso : 
IIELD : 
1. For the proviso to become operative it is necessary that the 
Government should not only take a decision but communicate it to the Govern-
ment servant. 
It is not necessary that the communication should reach the 
Governn1ent Set>:ant. 
[558 E] 
c 
E 
F 
2. But for the proviso the right of the Government servant to retire V.'Ould 
have been absolute. 
The proviso has restricted the right conferred 
on the 
Goven1ment sen·ant under it. 
It is open to the Appointing A.uthority to with-
hold permission to retire when the Government servant is under suspension or 
G 
departnten:al proceedings are pending or are cont~1nplated against him. 
[557 
C-EJ 
3. The proviso 
contempl~tes positive action by the Appointing Authority. 
The \Vords "it shall be Open to the Appointing Authority to withhold pern1ission" 
ii:t r. 161 proyis_o indicate that the Appointing Authority has got an option- to 
wtthhold pern11ss1on and that could be exercised by communic:ating its intention 
to withhold permission to the Government servant. The Appointing Authority 
may have con~idc:ed the question and may not have taken a decision either way 
H 
or after considering the facts of the case may have come to the conc1usion 
that it is better to aUow the Government servant to retire than take any action 
against him. 
[558 C-E] 
A 
. B 
554 
SUPREME COURT REPORTS 
[1978] 3 S.C.R. 
Dinesh Char;dra Sangma v. State of Assam ""d ()rr 
[1978]1 S.C.R. 607, 
distinguished. 
· ., 
L.ewi' & Allenby (1909) Ltd. v. Pegge; [1914] l Ch. D. 782; held in-
apphcabJe. 
State of Punjab v. Khemi Ram; [1970] 2 S.C.R. 657; Suue of Punjab v. 
Amar Singh Harika; A.I.R. 1966 S.C. 1313; referred to . 
In the instant case it was incumbent on the Appointing Authority to withhold 
permission to retire on one of the conditions mentioned in the proviso. 
Ad-
mittedly the order of suspension was not communicated before the date of 
retirement. 
Therefore, disciplinary action cannot be taken after the date of 
his retirement. 
[558 F-G] 
CIVIL APPEI.LATE JURISDICTION : Civil Appeal No. 923/77. 
(Appeai by Special Leave from the Judgment and Order dated 
13-8-1976 of the Gujarat High Court in SCA No. 1216/76). 
V. M. Tarkunde,
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