UNION OF INDIA AND ORS. versus SAYED MUZAFFAR MIR

Citation: [1994] SUPP. 3 S.C.R. 729 · Decided: 20-09-1994 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Dismissed

Judgment (excerpt)

UNION OF INDIA AND ORS. 
v. 
SA YEO MUZAFFAR MIR 
SEPTEMBER 20, 1994 
[KULDIP SINGH AND B.L. HANSARIA, JJ.] 
Service Law: 
Indian Railway Establishmen_t Code : Articles JBOJ(d) and 18Q2(b) 
Proviso. 
Voluntary retirement-Notice for -Employee under suspension during 
notice-{)isciplinary proceeding-Removal order passed after expiry of notice 
period-Held non-est in the eyes of law-Notice of premature retirement does 
A 
B 
c 
not require acceptanc~Acceptance comes into effect on the completion of 
notice period-Withholding pennission to retire or retention in service of D 
employee under suspension requires passing of an order to that effect by 
competent authority. 
· 
The respondent, a railway employee, gave three months notice on 
22.7.1985 for seeking per-mature retirement as visualised by Article E 
1802(b) of the Indian Railway Establishment Code. The period of notice 
expired on 21.10.1985. However, in view of the disciplinary proceeding 
which was then pending against him he was suspended and an order of 
removal was passed against him on 4.11.1985. The respondent filed an 
application before the Tribunal seeking declaration that he voluntarily 
retired from service w.e.f; 22.10.1985 and that all proceedings pending F 
against him as on date were of on consequence. The Tribunal held that the 
respondent had been rightly found guilty af the charges, but it set aside 
the order of removal passed by the appellate authority who on appeal being 
preferred by the respondent had awarded this punishment, instead of 
dismissal, which was the punishment inflicted by the disci1llinary G 
authority. The Trlbunal held that the respondent was entitled under the 
law to seek premature retirement; and, therefore, the order of removal has 
to be treated as Iion-est in the eyes of law. 
In appeal to this court, is was contended on behalf of the appellant 
that the right of premature retirement conferred by Article 1802(b) could H 
729 
730 
SUPREME COURT REPORT~ [1~94] SUPP. 3 S.C.R. 
A 
be denied to a railway servant in case he was under suspension at the 
relevant time;· that under Article 1801(d) the competent authority may 
withhold permission to retire or retain in service a railway servant under 
suspension. 
B 
c 
Dismissing the appeal, this Court 
HELD :1. The provisions contained in Articles 1802(b) and 1801(d) 
of Indian Railways Establishment Code would require passing of ap-
propriate order, when the Government servant is under suspension, as was 
the respondent, either of withholding permission to retire or retaining of 
the incumbent in service. Despite the right given to the competent 
authority in this regard, the same is of no avail. in the present case as the 
right had not come to be exercised. [731-C, H, 732-A] 
2. Where the Government servant seeks premature retirement, the 
same does not require any acceptance and comes in-to effect on lhe 
D 
completion of the notice period. The period of notice in the present case 
having expired on 21.10.1985, as the first to order of removal having been 
passed on 4.11.1985, the Tribunal had rightly come to the conclusion that 
the order of removal was non-est in the eyes of law. [732-C, D] 
Dinesh Chandra Sangma v. State of Assam, [1977] 4 S.C.C. 441 and 
E BJ. She/at v. State of Gujarat, [1978] 2 S.C.C. 202, relied on. 
F 
CIVIL APPELLATE JURISDICTION: <;:ivil Appeal No. 2620 of 
1994. 
From the Judgment and Order dated 22.8.91 of the Central Ad-
ministrative Tribunal, Bombay in O.A. No. 106 of 1987. 
Altaf Ahmed, Additional Solicitor General, Hemant Sharma and 
C.V. Subba Rao for the Appellants 
G 
The JudgmenLof the Court was delivered by 
HANSARIA, J."The Central Administrative Tribunal, New Bombay 
Bench, was approached by the respondent seeking two declarations in the 
main that he voluntarily retired from service with effect from 22.10.1985 
and that all proceedings against him pending as on that date were of no 
H 
consequence. The Tribunal after having applied mind to the charges, which 
U.0:1. v. SAYED MUZAFFARMIR[HANSARIA,J.] 
731 
on inquiry were found established, came to the conclusion that the respon-
A 
dent had been rightly found guilty of the charges, but it set aside the order 
of removal passed by the appellate authority, who on appeal being 
preferred by the respondent had awarded this punishment instead of 
dismissal, which was the punishment inflicted by the disciplinary authority. 
This order of the Tribunal has been assailed in this appeal. 
2

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