Full Judgment Text
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PETITIONER:
DINESH CHANDRA SANGMA
Vs.
RESPONDENT:
STATE OF ASSAM & ORS.
DATE OF JUDGMENT05/10/1977
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
SHINGAL, P.N.
SINGH, JASWANT
CITATION:
1978 AIR 17 1978 SCR (1) 607
1977 SCC (4) 441
CITATOR INFO :
E 1978 SC1109 (7)
ACT:
Defence and Internal Security of India Act, 1971, s. 37 and
Defence and Internal Security of India Rules, rule 119(3)
and (5), scope of-Whether Rule 119 is super-imposed on
Fundamental Rules-Rule 56(c).
Voluntary retirement under FR 56(c)-Consent of the
Government is not necessary to give legal effect to the
voluntary retirement once the conditions in FR 56(c) are
fulfilled.
HEADNOTE:
The appellant, a District & Sessions Judge, served a notice
on the Government under FR 56(c), as amended by the
Government of Assam under Art. 309 of the Constitution by a
Notification dated 22nd July 1975, intimating the Government
that he "propose(d) to voluntarily retire from the service
with effect from 2nd August 1976" and requesting the later
to treat that as a formal notice under FR 56. Consequent to
the Notification dated July 1, 1976, by the Government
permitting the appellant to retire with effect from 2-8-
1976, the High Court allowed him to go on one month’s leave
preparatory to retirement with effect from 2-7-1976, on
which date he relinquished his charge of office. But the
Government by its order dated 28th July, 1976 countermanded
its earlier order dated 1-7-1976 permitting him to retire
and the High Court, therefore, posted him to Dhubri by its
order dated 31st July 1976 and asked him to join
"immediately after the expiry of his leave". The appellant
did not join but made several representations to the High
Court and the Government without success. The High Court by
a letter of 7th December 1976 directed the appellant to join
his post within 10 days on pain of disciplinary action. The
appellant, therefore, filed a petition u/Art. 226, on 28th
of July 1976 in the High Court of Gauhati which was
dismissed. The High Court held that FR 56(c) "is subject to
compliance with clause (3) of Rule 119 of DISI Rules 1971
and that since the Government revoked the earlier permission
granted by it to the appellant to retire from service, the
appellant could not voluntarily retire and his refusal to
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join the service amounted to abandonment of service within
the meaning of Rule 119(3) r/w Explanation 2 of the DISI
Rules.
Allowing the appeal the Court,
HELD : (1) Article 310(2) of the Constitution is a special
provision which deals with a special situation where a
contract is entered between the Government and a person
appointed under the Constitution to hold a civil post. But,
simply because there may be, in a given case, a contractual
employment as envisaged under Art. 310(2) of the
Constitution, the relationship of all other Government
servants, as a class, and the Government cannot be said to
be contractual. ,Except in the case of a person who has been
appointed under a written contract, employment under the
Government is a matter of status and not of contract even
though it may be said to have started initially by a
contract in the sense that the offer of appointment is
accepted by the employee. [612C-D]
(2)While the Government reserves its right to compulsorily
retire a Government servant under FR 56(b) even against his
own wish, there is a corresponding right of the Government
servant under FR 56(c) to voluntarily retire from set-vice
by giving the Government three months’ notice in writing.
There is no question of acceptance of the request for
voluntarily retirement by the Government when the Government
servant exercises his right under FR 57(c). [610H61 1 A]
(3)The conditions of service of a Government servant are
regulated by statute or statutory rules made under Art. 309
of the Constitution. FR 56 is one of the statutory rules
which binds the Government and the Government servant. The
condition of service which is envisaged in Rule 56 (c)
giving an option in’
608
absolute terms to a Government 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
envisaged in Explanation 2 to Rule 119. [612H-613EF]
Roshan Lal Tandon v. Union of India [1968] 1 S.C.R. 185,
applied
(4)The rubric of Rule 119 of the DISI Rules is "essential
services" and this rule occupies a place in Part XII of the
DISI Rules with the title "Essential Supplies and work".
Sub-rule (1) of Rule 119 applies to three broad categories
of employment, namely, (i) employment under the Central
Government; (ii) employment under the State Government; and
(iii) employment declared by the Central and State
Governments as essential. Explanation 2 to Rule- 119 was
considered necessary because of the third category of
employment. [612DE]
(5)It is a cardinal rule of construction that no word
should be considered redundant or surplus in interpreting
the provisions of a statute or of a rule Explanation 2 does
not say an express or implied term of employment but refers
"an express or implied term of his contract of employment".
If the language in Explanation 2 were different, namely, an
express or implied term of employment, instead of "contract
of employment", the position would have been different.
Explanation 2 in Rule 119 albeit a penal rule takes care to
use the words contract of employment" and necessarily
excludes the two categories of employment, namely, the one
under the Central Government and the other tinder the State
Government. Explanation 2 only takes in its sweep the third
category of employment where the relationship between the
employer and the employee is one governed by a contract of
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employment. Since FR 56 is a statutory condition of service
which operates in law without reference to a contract of
employment. there is nothing inconsistent between Rule 119
and FR 56. Explanation 2 to Rule 119 makes no mention of
retirement under a statutory rule.
In the instant case the submission that Rule 119 is super-
imposed on FR 56 has no force. The appellant has
voluntarily retired by giving three months’ notice not in
accordance with an express or implied term of his contract
of employment but in pursuance of a statutory rule. [613-H,
614AB]
(6)The High Court committed an error of law in holding
that consent of the Government was necessary to give legal
effect to the voluntary retirement. Since the conditions of
FR 56(c) are fulfilled, in the instant case, the appellant
has voluntarily retired is notified by him with effect from
2nd August 1976. [614C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1199 of 1977
Appeal by Special Leave from the Judgment and Order dated
4-3-77 of the Gauhati High Court in C. R. No. 449/76.
A. K. Sen Niren De and S. K. Nandy for the Appellant.
S. V. Choudhury for the Respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.-The appellant, Shri Dinesh Chandra Sangma was a
District and Sessions Judge at Dibrugarh in the State of
Assam. He attained the age of 50 years on February 29,
1976. After serving for about twenty years under the
Government, on account (if certain ’domestic troubles’, he
did not want to continue in service after his attainment of
50 years of age. The appellant, therefore, served a notice
on the Government under Fundamental Rule 56(c) as amended by
the Governor of Assam under Article 309 of the Constitution
by a notification dated 22nd July, 1975. By this notice the
appellant
609
formally intimated to the Government that he "propose(d) to
voluntarily retire from the service" and requested the
Government to treat that as a formal notice under F.R. 56.
The appellant also indicated in his letter that although he
served the requisite three months’ notice he proposed to
make over charge by the afternoon of 2nd August, 1976. On
July 1, 1976, the Governor of Assam by a notification of
that date was "pleased to allow Shri D. C. Sangma to retire
from this State Govt. Service with effect from 2nd August,
1976 (afternoon) ". The High Court also allowed the
appellant to go on one month’s leave preparatory to
retirement with effect from 2nd July, 1976, on which date he
relinquished his charge of office.
Meanwhile there were some quick developments at the Govern-
ment’s end. The Government sought to retrace its steps and
passed an order on 28th July, 1976, countermanding its
earlier order of July, 1., 1976, allowing him to retire from
service with effect from 2nd August, 1976. Accordingly on
31st July, 1976, the High Court, also, squaring with the
Government’s order of 28th July, 1976, transferred the
appellant from Dibrugarh to Dhubri and asked him to join
there "immediately after the expiry of his leave".
The appellant did not join at Dhubri as ordered by the High
Court since’, according to him, he voluntarily retired from
service on and from 2nd August, 1976, under rule 56(c) of
the/ Fundamental Rules.
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The appellant made several representations to the High Court
and to the Government without success. While the Government
by a letter dated 4th December, 1976, declined to recall the
order of revocation, the High Court by a letter of 7th
December, 1976, directed the appellant to join his post at
Dhubri within ten days on pain of disciplinary action. The
appellant was thus obliged to approach the High Court on the
judicial side under Article 226 of the Constitution for a
writ of certiorari to quash the order of Government of 28th
July, 1976, and the High Court’s order dated 31st July, 1976
passed on the administrative side.
The High Court dismissed the appellant’s application holding
that F.R. 56(c) "is subject to compliance with clause (3) of
Rule 119 of DIST Rule-,, 1971". Since the Government
revoked the earlier permission granted by it to the
appellant to retire from service, the appellant, according
to the High Court, could not voluntarily retire and his
refusal to join service amounted to abandonment of service
within the meaning of rule 119(3) read with Explanation 2 of
the Defence and Internal Security of India Rules. It is in
this view that the High Court held that the Government was
competent to revoke it,., order and thus to continue the
appellant in service.
It is submitted by Mr. Niren De on behalf of the State that
rule 119 of the Defence and Internal Security of India
Rules, 1971 (briefly the DIST Rules) is super-imposed on F.
R. 56(c). It is, therefore, impermissible in law for a
Government servant to voluntarily retire under F. R. 56(c)
without written permission from the Government, says
counsel. Mr. De further submits that since the effective
date of retirement was 2nd August, 1976, it was open to the
Government
610
to revoke the permission earlier accorded to the appellant
to retire voluntarily from service on his attainment of the
age of 50 years by giving three months’ notice to the
Government. He concedes that but for rule 119 of the DISI
Rules there would be no necessity for any permission or
consent of the Government in that behalf.
Before we proceed further we may read F. R. 56 as amended
"F.R.56(a) The date of compulsory retirement
of a Government
servant is the date on which he attains the
age of 55 years. He may be retained in
service after this age with sanction of the
State Government on public grounds which must
be recorded in writing, and proposals for the
retention of a Government servant in service
after this age should not be made except in
very special circumstances.
(b) Notwithstanding anything contained in
these rules the appropriate authority may, if
he ’is of the opinion that it is in the public
interest to do so, retire Govt. servant by
giving him notice of not less than three
months in writing or three months’ pay and
allowances in lieu of such notice, after he
has attained fifty years of age or has
completed 25 years of service, whichever is
earlier.
(c) Any Govt. 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 25 years of service,
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whichever is earlier".
It is clear from the above that under F. R. 56(b) the
Government may retire a Government servant in the public
interest by giving him three months: notice in writing or
three months pay and allowance,; in lieu thereof after he
has attained the age of fifty years or has completed 25
years of service, whichever is earlier.
As is well known Government servants hold office during the
pleasure of the President or the Governor, as the case may
be, under Article 310 of. the Constitution. However, the
pleasure doctrine under Article 3 1 0 is limited by Article
3 1 1 (2). It is- clear that the services of a permanent
Government servant cannot be terminated except in accordance
with the rules made under Article 309 subject to Article
311(2) of the Constitution and the Fundamental Rights. it is
also well-settled that even a temporary Government servant
or a probationer cannot be dismissed or removed or reduced
in rank except in accordance with Article 311(2). The above
doctrine of pleasure is invoked by the Government in the
public interest after a Government servant attains the age
of 50 years or has completed 25 years of service. This is
constitutionally permissible as compulsory termination of
service under F.R. 56(b) does not amount to removal or
dismissal. by way of punishment. While the Government
reserves its right to compulsorily retire a Government
servant, even against his wish, there is a corresponding
right of the Government servant under F. R. 56(c)
611
to voluntarily retire from service by giving the Government
three months’ notice in writing. There is no question of
acceptance of the request for voluntary retirement by the
Government when the Government servant exercises his right
’under F. R. 56(c). Mr. Niren De is therefore right in
conceding this position.
We have, therefore, next to turn to rule 119 of the DISI
Rules which is the sheet-anchor of the respondents. Rule
119, so far as material, reads as follows :-
"(3) Any person engaged in any employment or
class of
employment to which this rule applies, who-
(a) x x
x
(b) Without reasonable excuse abandons any
such employment or absents himself from work,
or
(c) x x x
shall be deemed to have contravened this rule
".
"Explanation 2. A person abandons his
employment within the meaning of cl. (b), who,
notwithstanding that it is an express or
implied term of this contract of employment
that he may terminate his employment on giving
notice to his employer of his intention to do
so, so terminates his employment without the
previous consent of his employer
Clause (5) of rule 1 19 may be read
"If any person contravenes any provisions of
this rule or of any order made under this
rule, he shall be punishable, without
prejudice to any action which may be taken
against him under any other law for the time
being in force, with imprisonment for a term
which may extend to one year, or with fine or
with both".
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Mr. Niren De drew our attention to section 37 of the Defence
and Internal Security of India Act, 1971, which provides
that "the provisions of this Act or any rule made thereunder
or any order made under any such rule shall have effect
notwithstanding anything inconsistent therewith contained in
any enactment other than this Act or in any instrument
having effect by virtue of any enactment other than this
Act". Before section 37 can be invoked it must be shown
that there is something inconsistent between F. R. 56(c) and
rule 119 of DISI Rules. The important question is whether
Explanation 2 to rule 119, which is relied upon by the
respondents, is at all attracted to the instant case. In
other words, briefly put, does a Government servant in
voluntarily retiring under F. R. 56(c) terminate his
employment on the basis of express or implied term of his
contract of employment ?
612
Mr. Niren De submits that Article 310(2) supports his
submission that the relationship between the Government
servant and the Government is contractual. Sub-article (2)
of Article 310 provides that notwithstanding that a person
holding a civil post under the Union or a State holds office
during the pleasure of the President or, as the case may be,
of the Governor of the State, any contract under which a
person, not being a member of defence service or of an all-
India service or of a. civil service of the Union or a
State, is appointed under this Constitution to hold such a
post may, if the President or the Governor, as the case may
be, deems it necessary in order to secure the services of a
person having special qualifications, provide for the
payment to him of compensation, if before the expiration of
an agreed period that post is abolished or he is, for
reasons not connected with ,in.), misconduct on his part,
required to vacate that post." ’The above is a special
provision which deals with a special situation where I con-
tract is entered between the Government and a person
appointed under the Constitution to hold a civil post. But
simply because there tie, in a given case, a contractual
employment, as envisaged under Article 310(2) of the
Constitution, the relationship of all other Government
servants, as a class, and the Government, cannot be said to
be contractual. It is well-settled that except in the case
of a person who has been appointed under a written contract,
employment under the Government is a matter of status and
not of contract even though it may be said to have started.
’initially, by a contract in the sense that the offer of
appointment is accepted by the employee.
The rubric of rule 119 of DISI Rules is "essential
services". Indeed this rule occupies a place in Part XII of
the DISI Rules with the title "Essential Supplies and Work".
Sub-rule (1) of rule 119 applies to three broad categories
of employment, namely, (1) employment under the Central
Government, (2) employment under the State Governments and
(3) employments declared by the Central and State
Governments as essential. The third category may include
even private employments which may be declared to be
essential for the purpose of securing the objects specified
in sub-rule (1) of. rule 119. It may be sufficient, here,
to refer to the notification of the Control Government S.O.
206(E) dated March 25, 1974 whereby "any employment under
the Hindustan Construction Company Limited in the Haldia
Dock Project" was declared by the Central Government an
essential employment for the purpose of rule 119. It is
because of the above mentioned third category of employment
that Explanation 2 was considered necessary so as to extend
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the meaning of abandonment of employment by including the
persons who by the terms of their contract could terminate
their employment by notice. It goes without saying that in
many employments, whether of private limited companies or
public companies, contracts of employment are executed
containing a terms or termination of employment by notice.
Such cases of contractual employment are different from
those of Government employees whose employment is a matter
of status and not of ordinary contract. The conditions of
service of a Government servant are regulated by statute or
statutory rules made under Article 309 of the
613
Constitution. This Court observed in Roshan Lal Tandon
v. Union India(1) as follows :
"It is true that the origin of Government
service is Contractual. There is an offer and
acceptance in every case, But once appointed
to his post or office the Government servant
acquires a status and his rights and
obligations are no longer determined by
consent of both parties, but by statute or
statutory rules which may be framed and
altered unilaterally by the Government. In
other words, the legal position of a
Government servant is more one of status than
of contract. The hallmark of status is the
attachment to a legal relationship of rights
and duties imposed by the public law and not
by more agreement of the parties.
x x x
x
it is obvious that the relationship between
the Government and its servant is not like an
ordinary contract of service between a master
and servant. The legal relationship is
something entirely different, something in
the, nature of status. It is much more than a
purely contractual relationship voluntarily
entered into between the parties. The duties
of status are fixed by the law and in the
enforcement of these duties society has an
interest".
As Salmond and Williams put it "In such contracts as those
of service the tendency in modern times is to withdraw the
matter more and more from the domain of contract into that
of status"(2)
F.R. 56 is one of the statutory rules which binds the
Government as well as the Government servant. The condition
of service which is envisaged in rule 56(c) giving an option
in absolute terms to a Government 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 envi-
saged in Explanation 2 to rule 119.
The field occupied by F. R. 56 is left untrammelled by
Explanation to rule 1 19. The words "his contract of
employment" in Explanation are clinching on the point.
It is a cardinal rule of construction that no words should
be considered redundant or surplus in interpreting the
provisions of a statute or a rule. Explanation 2 does not
say an express or implied term of employment, but refers to
"an express or implied term of his contract of, employment".
If the language in Explanation 2 were different, namely, an
express or implied term of employment, instead of "con tract
of employment", the position would have been different,
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Explanation 2 in rule. 119, albeit, a penal rule, takes care
to use the words "contract of employment" and necessarily
excludes the two categories
(1) [1968] (1) S.C.R. 185.
(2) Salmond and Williams of Contracts, 2nd edition p. 12.
614
of employment, namely, the one under the Central Government
and the other under the State Government. Explanation 2
only takes in its sweep the third category of employment
where the relationship between the employer and the employee
is one governed by a contract of employment Since F. R. 56
is a statutory condition of service, which operates in law,
without reference to a contract of employment, there is
nothing inconsistent between rule 119 and F.R. 56.
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. Explanation 2 to rule 119 makes no mention
of retirement under a statutory rule and hence the same is
clearly out of the way. The submission that rule 119 is
super-imposed on F.R. 56 has no force in this case.
The High Court committed an error on law in holding that
consent of the Government was necessary to give legal effect
to the voluntary retirement of the appellant under F.R. 56
(c). Since the conditions of F.R. 56(c) are fulfilled in
the instant case, the appellant must be hold to have
lawfully retired as notified by him with effect from 2nd
August, 1976.
In this view of the matter the permission accorded by the
Government to retire and its subsequent order of July 28,
1976, revoking the permission, are ineffectual in law and
are therefore null and void. Since the appellant
voluntarily retired in accordance with F.R. 56(c), the High
Court’s order of July 31, 1976, on the administrative side,
transferring him to Dhubri is invalid and is hereby quashed.
In the result the judgment and order of the High Court of
March 4, 1977, are set aside and the Writ Petition is
allowed. The appeal is allowed with costs in this Court as
well as in the High Court.
S.R. Appeal allowed.
615