Full Judgment Text
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PETITIONER:
MURARI MOHAN DEB
Vs.
RESPONDENT:
THE SECRETARY TO THE GOVT. OF INDIA & ORS.
DATE OF JUDGMENT10/04/1985
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
ERADI, V. BALAKRISHNA (J)
KHALID, V. (J)
CITATION:
1985 AIR 931 1985 SCR (3) 639
1985 SCC (3) 120 1985 SCALE (1)662
CITATOR INFO :
F 1987 SC1970 (20)
ACT:
Constitution of Indian Art. 311(2) Compulsory
retirement and dismissal removal from service-Distinction
between-Whether compulsory retirement amounts to dismissal
or removal-Circumstances when it amounts to dismissal or
removal explained.
Civil Service-Compulsory retirement-No provision in the
Rules finding the age of compulsory retirement-Compulsory
retirement not in public interest Whether amounts to
dismissal under Art. 311(2).
HEADNOTE:
The appellant-a Forester was compulsorily retired from
service by an Order dated October 12 , 1962 passed by the
Chief Forest Officer , Government of Tripura. He filed a
writ petition before the Judicial Commissioner impleading ,
(I) The Secretary to the Government of India , Ministry of
Home Affairs; (2) The Chief Commissioner , Tripura; (3) The
Secretary to the Government of Tripura , Forest Department;
and (4) The Chief Forest Officer , Government of Tripura as
respondents. His main grievance was (i) that the penalty of
compulsory retirement was imposed upon him without affording
him an adequate opportunity of being heard; and (ii) that
the enquiry held against him was in violation of the
principles of natural justice. On the other hand , the
respondent contended (i) that the punishment of compulsory
retirement does not tantamount to dismissal or removal from
service as contemplated by Art. 311 (1) and therefore , no
formal enquiry was necessary to be held before imposing the
penalty; and (ii) that adequate opportunity was afforded to
the appellant during the enquiry to controvert the charges
and defend himself. The Judicial Commissioner held that the
appellant was appointed by the Chief Commissioner , and
therefore , the Chief Forecast Officer , a subordinate of
the Chief Commissioner was not competent to impose the
penalty of compulsory retirement and thus the order was bad
on merits. But , he dismissed the petition holding that it
was not properly constituted.
Allowing the appeal by the appellant ,
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^
HELD: (t) The Judicial Commissioner should not have
taken upon
640
himself to raise the objection that in the absence of Union
of India being made a party , the petition was not properly
constituted when the respondents did not raise such a
contention. Respondent No. i is shown to be the Secretary to
the Government of India , Ministry of Home Affairs. If
there was technical err or in the draftsmanship of the
petition by a lawyer , a Forester a class IV low grade
servant should not have been made to surfer. An oral request
to correct the description of the first respondent would
have satisfied the procedural requirement. The Court could
have conveniently read the cause title as Government of
India which means Union of India through the Secretary.
Ministry of Home Affairs instead of the description set out
in the writ petition and this very petition would be
competent by any standard. Moreover , the appointing
authority of the appellant , the Chief Commissioner of the
Government of Tripura as well the Chief Forecast Officer who
passed the impugned order were impleaded and they
represented the administration of Tripura Government as well
as the concerned officers. Therefore , not only the
petition as drawn up was competent but no bone of contention
could be taken about its incompetence. [644G-H; 645A-D]
(2) The Judicial Commissioner rightly held that the
impugned order of compulsory retirement was imposed by an
authority not competent to impose the same and therefore it
is ab initio illegal and invalid. [645F]
(3) (i) Where relevant service rules provide for an age
of superannuation and permit compulsory retirement in public
interest on reaching a certain age lower than the age of
superannuation , and order of compulsory retirement
according to relevant service rules cannot be styled as
imposing a penalty and obviously Art. 311 (2) will not be
attract . An order of compulsory retirement differ both from
an Order Of dismissal and an order of removal from service ,
in that it is not a form of punishment prescribed by the
rules , and involved no penal consequences in as much as
the person who retires is entitled to pension proportionate
to the period of service standing to his credit. But ,
where there is no rule fixing the are of compulsory
retirement or if there is one and the servant is retired
before that age prescribed therein , then that can he
regarded only as dismissal or removal within Art. 311 (2).
[645G-H;6645A-B]
Sham Lal v. The State of Uttar Pradesh , [1955] S.C.R.
26 and State of Bombay v. Saubhagchand M. Doshi , [1958]
S.C.R. 571 , referred to.
3. (ii) In the instant case , it is admitted that the
relevant service rules prescribed an age of superannuation.
It was not pointed out that the relevant rules fixed some
other age beyond which and before reaching the age of
superannuation , a Government servant can be compulsory
retired in public interest. Nor is it claimed that the order
of compulsory retirement in this case was made under the
relevant service rules in public interest. At any rate , it
is crystal clear that the appellant was aged only 42 when
the order of compulsory retirement was made. It was not
sought to be supported on the ground that the appellant
having put in service for a certain number of years , he
could have been compulsorily retired. On the contrary , it
is admitted that the order of compulsory retirement was by
way of penalty imposed upon him
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641
for misconduct after an enquiry. Obviously therefore Art.
311(2) will be attracted and an enquiry in accordance with
the rules of natural justice would be a pre-requisite before
imposing any penalty. [647C-F]
3. (iii) It is clear from the facts that the enquiry
was held in violation of principles of natural justice and
is vitiated. If the enquiry was illegal , any punishment
imposed as a result of the enquiry must fail. Therefore,
the order of compulsory retirement is bad for more than one
reason and liable to be set aside and is hereby set aside.
Once the order of compulsory retirement is set aside , the
appellant continues in service. But , it is not possible to
direct his reinstatement in service , since he has reached
the age of superannuation as on December 6 , 1978.
Therefore. he would be entitled to backwages and pension
which is comes to Rs. 1,00,000 from the date of compulsory
retirement on October 16 , 1962 upto and inclusive of
December 31 , 1984. The respondent shall pay pension at the
rate of Rs. 400 from January 1 , 1984 . Now that the amount
is payable in one lump sum , presumably the Government may
resort to sec. 192 of the Income Tax Act. But let it be made
distinctly clear that the appellant is entitled to the
benefit of Sec. 89 and Rule 21A of the Income Tax Rules and
he is entitled to relief , under Sec. 89. Therefore ,
while computing the total amount the Court has kept the
spread over in view and in no year any income tax is
deductible from the meagre salary of this low paid class IV
employee. If therefore , any deduction is made towards
income-tax while making the payment , it is incombent upon
the Tripura Administration to take all necessary steps to
obtain the relief for the appellant under Sec. 89 of the
Income Tax Act read with Rule 21A of the Income Tax Rules.
[647B-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1605 of
1971. I
From the Judgment and Order dated 28 11.1970 of the
Judicial Commissioner’s Court of Tripura in Writ Petition
No. 22/ 1964.
D.N. Mukherjee for the Appellant.
M.M. Abdul Khader and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by
DESAI , J. Murari Mohan Deb , a Forester in the
employment of Tripura Government was compulsorily retired
from service by the order dated October 12 , 1962 of the
4th respondent Chief Forest Officer. Since then he is
knocking at the doors of the courts in search of illusory
justice and chased mirage till he reached the age of
superannuation. Alas ! the ways of justice like the ways of
Providence are inscrutable. And who is to blame , if not,
the system
642
The appellant questioned the correctness and validity
of the order of compulsory retirement n Writ Petition No. 22
of 1964 which came to be disposed of after a lapse of six
years on November 28 , 1970. In his writ petition the
appellant had impleaded (1) The Secretary to the Government
of India , Ministry of Home Affairs , (2) The Chief
Commissioner , Tripura , (3) The Secretary to the
Government of Tripura , Forest Department and (4) The Chief
Forest Officer , Government of Tripura , last one being
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the one who had passed the impugned order of compulsory
retirement. The grievance in the writ petition was that
penalty of compulsory retirement was imposed upon the
appellant without affording the appellant an adequate
opportunity to defend himself and to explain the charges
leveled against him. In short it was alleged that the
enquiry was held in violation of the principles of natural
justice.
The respondents resisted the writ petition inter alia
contending that as the punishment of compulsory retirement
does not tantamount to dismissal or removal from service as
contemplated by Art. 311(1) and therefore , no formal
enquiry was necessary to be held before imposing the
penalty. It was contended that adequate opportunity was
afforded to the appellant to controvert the charges and
defend himself.
Surprisingly , when the matter was taken up for
hearing , the learned judicial Commissioner suo moto raised
the objection that i n the absence of Union of India being
made a party , the petition was not properly constituted.
After an elaborate discussion , the learned Judicial
Commissioner recorded a finding that Government of India was
a necessary party and in its absence the petition is
incompetent and must be rejected. After having reached this
firm conclusion , the learned Judicial Commissioner
proceeded to investigate the contention of the appellant
that the enquiry against him was held in violation of the
principles of natural justice , and that the Chief Forest
Officer being not the appointing authority could not impose
the penalty of compulsory retirement on the appellant. In
respect of the second contention , the learned judicial
Commissioner held that as it has been unquestionably
established that the appellant was appointed by the Chief
Commissioner , the Chief Forest Officer , a subordinate of
the Chief Commissioner was not competent to impose the
penalty of compulsory retirement and therefore on merit the
order was bad.
643
However , consistent with his view that the writ petition
in the absence of Union of India was competent , he
rejected the writ petition. Hence this appeal by special
leave.
This appeal reached hearing on July 26 , 1984 and
after hearing Mr. D.N. Mukherjee , learned counsel for the
appellant and Mr. Abdul Khader , learned counsel for
Tripura Administration , we told them that the appeal is
being allowed and the impugned order is being set aside.
However , at this stage , Mr. Abdul Khader , learned
counsel for the State of Tripura pointed out that as the
appellant even on his showing has reached the age of
superannuation , even if the impugned order is illegal and
invalid , the relief of reinstatement cannot be granted to
him. As the facts were not clear , a direction was given
that the matter be listed on August 7 , 1984 for
clarification about the date of superannuation of the
appellant. At the resumed hearing it was conceded that,
had the appellant not been compulsorily retired from service
, he would have retired on superannuation on December 6,
1978. In this fact situation the relief of physical
reinstatement could not be granted. On that day a direction
was given that the second respondent should compute and
calculate the backwages payable to the appellant on the
footing that the order of compulsory retirement is illegal
and invalid and the appellant continued to be in service
till December 9 , 1978. The matter thereafter was listed on
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October 17 , 1984 when Mr. Abdul Khader , learned counsel
for the second respondent produced before us the rough
computation made by the competent authority pursuant to our
direction showing that approximately Rs. 93,000 would be
payable to the appellant as and by way of backwages and he
would be entitled to gratuity and pension thereafter. The
plight of the appellant lent urgency to the matter in as
much as the appellant was without succour for a long period,
a direction was given that the second respondent i.e.
Tripura Administration should pay Rs. 93,000 by a demand
draft drawn in favor of the appellant within four weeks from
the date of the order.A further direction was given that
year to year calculation of computation of backwages must be
submitted to the Court.
Kamal Baran Dev son of the appellant filed an affidavit
dated November 7, 1984 in which- he pointed out that had the
appellant continued in service , if the illegal order of
compulsory retirement had not been made, he would have
earned two promotions , namely,
644
as Forest Ranger and Senior Forest Ranger , all posts in
Class III and IV grade. According to the appellant’s
computation , his pension be fixed at Rs. 550 p.m.
According to him , he would be entitled to recover Rs.
3,25,000 from the respondents for the period upto and
inclusive of July , 1984.
Shri R.M. Dutta , Deputy Conservator of Forests,
Government of Tripura filed a counter-affidavit in which it
is pointed out that looking to the age and qualifications of
the appellant , he would not have earned a single
promotion. It was pointed out that the post of Forest Ranger
and that of Senior Forest Ranger are governed by the
recruitment rules which came into force in 1965 which did
not envisage automatic promotion purely according to
seniority. It was also pointed out that seniority is only
one of the criteria that the Departmental Promotion
Committee has to take into consideration while recommending
the promotion of a Forester to the post of Forest Ranger. It
was further pointed out that the revised pay scale for the
post of a Forester was Rs. 260-495 effective from March ],
1974 and that the appellant would have retired in that
scale. To this affidavit was annexed calculations monthwise
and it was pointed out that at best the appellant would be
entitled to Rs. 93 , 444.08 p. inclusive of pension from
6.12.78 to September 30 , 1984 , encasement of leave and
gratuity.
Mr. D.N. Mukherjee , learned counsel for the appellant
urged that we should not accept the computation as made by
the competent authority as set out in the annexure to the
affidavit of Shri R.M Dutta. To a query of the court as to
how the appeal ant was worked out his arrears of backwages
at Rs. 3,25,000, there was hardly any convincing answer
though some rough and ready calculation was attempted to be
offered to us which we find very difficult to implicitly
rely upon.
Mr. Abdul Khader fairly stated that it is difficult to
support l the judgment of the learned Judicial Commissioner
that in the absence of Union of India being impleaded as a
party , the petition as constituted was incompetent. We
have not been able to appreciate why the learned Judicial
Commissioner should have taken upon himself to raise this
untenable contention even though the respondents did not
raise such a contention. respondent No. 1 is shown to be the
Secretary 10 the Government of
645
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India , Ministry of Home Affairs. If there was technical
error in the draftsmanship of the petition by a lawyer, a
Forester a class IV low grade servant should not have been
made to suffer. An oral request to correct the description
of the first respondent would have satisfied the procedural
requirement. By raising and accepting such a contention,
after a laps of six years , the law is brought into
ridicule. The court could have conveniently read the cause
title as Government of India which means Union of India
through the Secretary , Ministry of Home Affairs instead of
the description set out in the writ petition and this very
petition would be competent by any standard. The contention
is all the more objectionable for the additional reason that
the appointing authority of the appellant , the Chief
Commissioner of the Government of Tripura as well the Chief
Forest Officer who passed the impugned order were impleaded
and they represented the administration of Tripura
Government as well as the concerned officers. Therefore,
not only the petition as drawn up was competent but no bone
of contention could be taken about its incompetence. Mr.
Abdul Khader , learned counsel for the Government of
Tripura rightly did not press this point.
The learned Judicial Commissioner rightly held that the
impugned order of compulsory retirement was imposed by an
authority not competent to impose the same and therefore it
is ab initio illegal and invalid. Further , it appears
crystal clear from the record that in this case when the
appellant was only 42 years of age , compulsory retirement
was imposed as a penalty for misconduct. We are not unaware
of the legal position that where relevant service rules
provide for an age of superannuation and permits compulsory
retirement in public interest on reaching a certain age
lower than the age of superannuation , an order of
compulsory retirement according to relevant service rules
cannot be styled as imposing a penalty and obviously Art.
311(2) will not be attracted. As held by this Court in Sham
Lal v. The State of Uttar Pradesh (1) an order of compulsory
retirement differs both from an order of dismissal and an
order of removal from service , in that it is not a form of
punishment prescribed by the rules. and involves no penal
consequences , inasmuch as the person who retires is
entitled to pension proportionate to the period of service
standing to his credit. ’(See The State of Bombay
1. (1955) 1 SCR26.
646
v. Saubhagchand M. Doshi(1). It thus appears that where the
relevant service rules fixed both an age of superannuation
and an age of compulsory retirement and the services of a
Government servant governed by the rules are terminated
between these two point of time , the order of compulsory
retirement could not be said to cast a stigma and would not
attract Art. 311. But where there is no rule fixing the age
of compulsory retirement or if there is one and the servant
is retired before the age prescribed therein , then that
can be regarded only as dismissal or removal within Art.
311(2). (See Saubhagchand M. Doshi’s case at 519). In this
case it is admitted that the relevant service rules
prescribed an age of superannuation. It was not pointed out
that the relevant rules fixed some other age beyond which
and before reaching the age of superannuation , a
Government servant can be compulsory retired in public
interest. Nor is it claimed that the order of compulsory
retirement in this case was made under the relevant service
rules in public interest. It would have been atrocious to
contend to that effect in respect of a Forester , a low
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grade class IV servant who would be required to be
compulsorily retired in public interest. But if there was
such a rule , we would have positively examined the same.
At any rate , it is crystal clear that the appellant was
aged only 42 when the order of compulsory retirement was
made. It was not sought to be supported on the ground that
the appellant having put in service for a certain number of
years , he could have been compulsorily retired. On the
contrary , it is admitted that the order of compulsory
retirement was by way of penalty imposed upon him for
misconduct after an enquiry. Obviously therefore , Art.
311(2) will be attracted and an enquiry in accordance with
the rules of natural justice would be a pre-requisite before
imposing any
penalty. It would be presently pointed out that the enquiry
was sham and held in violation of principles of natural
justice.
The enquiry officer issued a notice that the enquiry
against the appellant would be held at Rangamura but at
short notice subsequently , the venue was suddenly shifted
to Radhanagar where the appellant could not keep his
witnesses present. He did not have an opportunity of
examining the records used against him. Therefore , for
more than one reason , the enquiry appears to have been
held in
l. [1958] SCR 571.
647
violation of principles of natural justice and is vitiated.
If the enquiry was illegal , any punishment imposed as a
result of the enquiry must t‘ail. Therefore , the order of
compulsory retirement is bad for more than one reason and
liable to be set aside and is hereby set aside.
Once the order of compulsory retirement is set aside,
the appellant continues to be in service. He has reached
the age of Superannuation as on December 6 , 1978 as
pointed out in the affidavit and not controverted. Therefore
, it is not permissible to direct his reinstatement in
service. He would be entitled to backwages from the date of
compulsory retirement on October 16 , 1962 till the date of
his superannuation on December 6 , 1978. C
Before we determine the amount payable as backwages, we
must make it distinctly clear that while computing the
amount we have kept in view the meagre monthly salary which
the appellant would have received for the years 1962 to 1974
when the pay scale of his post was revised. In any year if
he had received full salary , he was not liable to pay
income-tax at the rates then in force. Even the revised
salary with the exemption limit of income-tax going up would
have not been assessable to income-tax. And this lowest
grade class IV servant , we were informed had no other
source of income. Now that the amount is payable in one lump
sum , presumably the Government may resort to Sec. 192 of
the Income Tax Act. But let it be made distinctly clear that
the appellant is entitled to the benefit of Sec. 89 and Rule
21A of the Income Tax Rules and he is entitled to relief
under Sec. 89. Therefore , while computing the total amount
, we have kept the spread over in view and in no year any
income-tax is deductible from the meagre salary of this low
paid class IV employee. If therefore , any deduction is
made towards income-tax while making the payment , it is
incombent upon the Tripura administration to take all
necessary steps to obtain the relief for the appellant under
Sec. 89 of the Income-Tax Act read with Rule 21A of the
Income Tax Rules.
As pointed out earlier , rival contentions and
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calculations have been examined by us and keeping them in
view and having regard to the circumstances of the case ,
we direct that over and above the amount of Rs. 93,000
already paid to the appellant , he should be paid Rs. 7,000
more towards backwages and pension upto and inclusive of
648
December 31 , 1984. The respondent shall pay pension at the
rate of Rs. 400 from January 1 , 1984. The appellant shall
also be paid dearness allowance if admissible to pensioners
getting pension at Rs. 400 p.m. The appellant shall also be
paid gratuity at the admissible rate treating him in service
upto and inclusive of December 6 , 1978. The payment herein
directed shall be made with in a period of eight weeks from
today. The respondent shall also pay costs to the appellant
quantified at Rs. 2,000. Appeal is allowed to the extent
herein indicated.
M.L.A. Appeal allowed.
649