Raj Kumar Vs. Union of India & Ors
[1975] INSC 80 (19 March 1975)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
MATHEW, KUTTYIL KURIEN
CITATION: 1975 AIR 536 1975 SCC (3) 458
ACT:
Central Civil Services (Temporary Service)
Rules 1965--Proviso to rule 5(1)--Retrospective Amendment--Effect of.
HEADNOTE:
The services of the appellant, who was a
Government servant, were terminated forthwith and he was ordered to be paid a
month's pay and allowances calculated at the same rate at which he was drawing
them immediately before the date on which the order of termination was served
on him or, as the case may be. tendered to him: Having failed in departmental
representations, the appellant filed a writ petition in the High Court. When
the petition was before the High Court it was not brought to the notice of that
court that the proviso to sub-r. (1) of r. 5 of the Central Civil Services
(Temporary Services) Rules 1965 was amended with retrospective effect from May
1, 1965. The High Court dismissed the petition in Iimine and granted
certificate relying on the decision of this Court in R.M.S. v. K. V. Gopinath
which was not brought to its notice when the petitioner was dismissed.
The amendment provided that the services of
any Government servant may be terminated forthwith and on such termination he
shall be entitled to claim a Sum equivalent to the amount of his pay plus
allowances for the period of the notice at the same rates at which he was
drawing them immediately before the termination of the services or as the case
may be for the period by which such notice falls short of one month.
Dismissing the appeal,
HELD : (1) The effect of the amendment is
that on and from May 1, 1965 ,is also on the date of the dismissal of the
appellant it was not obligatory to pay to him a sum equivalent to the amount of
his pay and allowances for the period of notice at the rate at which he was
drawing them immediately before the termination of the services or as the case
may be for the period by which such notice falls short.
The Government servant is only entitled to
claim the amount.
The effect of the amendment is that the
decision in Gopinath's case no longer holds good.[965 B-C] (2) There is no
doubt that the rule is a valid rule because it is now well established that
rules made under the proviso to Art. 309 of the Constitution ire legislative in
character and, therefore, can be given effect to retrospectively. [965 C] (3)
Once a law is given retrospective effect as from a particular date all actions
taken under that law even before the amendment was made would be deemed to have
been taken under the law as amended and there could be really no question of
having to validate any action already taken provided it is subsequent to the
date from which the amendment, was given retrospective effect. the question of
the particular form of the validation would always depend on the circumstances
of a case and no general formula can be devised for all Circumstances. [965 H;
966 A] In the instant case the action taken against the appellant was on a date
subsequent to the date on which the amended rule took effect and, therefore,
that action being in accordance with the amended rule, is a legally valid
action and there is no need to have a validating provision. [966 B] Prithvi
Mills v. Broach Muncipality [1970] 1 S.C.R. 388, held inapplicable.
(4) When action is taken against a government
servant under the relevant rules, which enable the authorities concerned to
terminate his temporary services without assigning any reason, the Court would
not go into the reasons which and to the services being terminated. [966 D] 964
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1730 of 1972.
From the judgment and order dated the
December 6, 1971 of the Delhi High Court in Civil Writ Petition No.,1261 of
1971.
M. C. Bhandare, Govind Das, C. P. Lal, Kapil
Sibal and A. N. Goyal,for the appellant.
F. S. Nariman, Additional Solicitor General
for India and S. P.Nayar,for the respondent.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-The appellant was appointed as Airport Ticket Clerk in the
Civil Aviation Department of the Government of India on 14.8.1967. On 15.6.1971
his services were terminated 'forthwith' and it was directed that he shall be
paid a sum equivalent to the amount of paymend allowances for a period of one
month (in lieu of the period of notice) calculated at the same rate at which he
was drawing them immediately before the date on which the order was served on
or, as the case may be, tendered to him. But the pay and allowances were not paid
to him at the same time -as the service of the order of termination of his
services.
His appeal against the termination as well as
representations having failed he filed a writ petition out of which this appeal
arises. The High Court of Delhi dismissed the writ petition in limine and this
appeal has been filed in pursuance of a certificate granted by the High Court
because of the decision of this Court in R.M.S. v. K.
V. Gopinath(1) of which that Court was not
aware when it dismissed the petitioner's petition.
It was not brought to the notice of the High
Court that the proviso to sub-rule (1) of Rule 5 of the Central Civil Services
(Temporary Service) Rules 1965 had been amended with retrospective effect from
1st May, 1965. The rule as now amended reads "5. Termination of temporary
service- (1) (a) The services of temporary Government servant who is not in
quasi-permanent service shall be liable to termination at any time by a notice
in writing given either by the Government servant to the appointing authority
or by the appointing authority to the Government servant;
(b) The period of such notice shall be one
month;
Provided that the services of any such
Government servant may be terminated forthwith and on such termination the
Government servant shall be entitled to claim a sum equivalent to the amount of
his pay plus allowances for the period of the notice at the same rates at which
he was drawing them (1) [1972] 3 S.C.R. 530.
965 immediately before the termination of the
services or as the case may be for the period by which such notice falls short
of one mouth." The effect of this amendment is that on 1st May 1965 as
also on 15.6.1971, the date on which the appellant's services were terminated
forthwith it was not obligatory to pay to him a sum equivalent to the amount of
his pay and allowances for the period of the notice at the rate at which he was
drawing them immediately before the termination of the services or as the case
may be for the period by which such notice falls short. The Government servant
concerned is only entitled to claim the sums hereinbefore mentioned. Its effect
is that the decision of this Court in Gopinath's case (supra) is no longer good
law. There is no doubt that this rule is a valid rule because it now well
established that rules made under the proviso to Article 309 of the
Constitution are legislative in character and therefore can be given _effect to
retrospectively. It follows that the decisions of the Delhi High Court
dismissing the appellants writ petition is correct and this appeal will have to
be, dismissed.
But it was argued- by Mr. Bhandare appealing
on behalf of the appellant that there is no validating provision in the rule as
now amended and therefore the intention of the Government in making the
amendment cannot be validly given effect to. For this purpose he relied upon
the decision of this Court in Prithvi Mills v. Broach Munic. (1) and in
particular the following observations therein :
"Sometimes this is done by re-enacting
retrospectively a valid and legal taxing provision and then by fiction making
the tax already collected to stand under the re- enacted law. Sometimes the
legislature gives its own meaning and interpretation of the law under which the
tax was collected and by legislative flat makes the new meaning binding upon
courts. The legislature may follow any one method or all of them and while it
does so it may neutralise the effect of the earlier decision of the court which
becomes ineffective after the change of the law.
Whichever method is adopted it must be within
the competence of the legislature and legal and adequate to attain the object
or validation. If the legislature has t he power over the subject-matter and
competence to make a valid law, it can at any time make such a valid law, and make
it retrospectively so as to bind even past transactions." This argument
proceeds upon a miscomprehension of the above observation and the effect of a
validating statute. Once a law is given retrospective effect as from a
particular date all actions taken under the Act even before the amendment was
made would be deemed, to have been taken under the Act as amended and there
could be really no question of having to validate any action already taken
provided (1) [1970] 1 S.C.R. 388.
966 it is subsequent to the date from which
the amendment is given retrospective effect. The question of the particular
form of the validation would always depend on the circumstances of a case and
no general formula can be devised for all circumstances. It is enough to say
that in the present case the action taken against the appellant ,as on a date
subsequent to the date on which the amended rule takes effect and therefore
that action being in accordance with the amended rule is illegally a valid
action and there is no need to have a validating provision in respect thereof.
It was then argued by Mr. Bhandare that the
matter has been disposed of in limine by the High Court and there are certain
other aspects which may have to be considered, and therefore the appeal should
not be dismissed but that the writ petition should be directed to be disposed
of afresh by the Delhi High Court after considering the other questions raised
in the writ petition. There are only two questions raised by the petitioner in
his writ petition. One is that certain persons junior to him have been
continued in service while his services have been terminated and that it
offends Article 14. The termination of the appellant's services was not on the
ground of retrenchment. The question of offending Article 14 does not therefore
arise. When action is taken against him under the relevant rules which enable
the authorities concerned to terminate his temporary service, without assigning
any reason the Court would not go into the reasons which led to the appellant's
services being terminated. The other point raised in the writ petition is that
action terminating the appellant's services was mala fide. We see no substance
in this contention. The action is said to be mala fide because after the
appellant's services were terminated certain other persons have been appointed.
It is not alleged that those persons exercised their influence and had the
petitioner's services terminated in order to provide them with posts. Naturally
when a vacancy arises by the termination of services of an employee other
persons would have to be appointed to take his place.
This would not show any mala fides.
The appeal is therefore dismissed but in the
circumstances there will be no order as to costs.
P.B.R. Appeal dismissed.
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