Mayenghoan Rahamohan Singh Vs. The
Chief Commissioner (Admn.) Manipur & Ors [1976] INSC 276 (1 November 1976)
RAY, A.N. (CJ) RAY, A.N. (CJ) BEG, M.
HAMEEDULLAH SHINGAL, P.N.
CITATION: 1976 AIR 2581 1977 SCR (1)1022 1976
SCC (4) 709
CITATOR INFO :
R 1980 SC 563 (23) RF 1989 SC1602 (10)
ACT:
Compulsory retirement---Compulsory retirement
made in public interest under the Government of India Decision No.
23 dated 30th November, 1962 below
Fundamental Rule 56 (later substituted as a new rule FR 56(j))--Mere reference
to a non-subsisting rule does not invalidate the order when the retirement is
in public interest and bona fide.
HEADNOTE:
The appellant, a Sub-ordinate Judge was
compulsorily retired under the Government of India Decision No. 23. below
Fundamental Rule No. 56 though the said rule was later substituted as FR 56(j).
A writ petition assailing the order of compulsory retirement as in violation of
Article 311 was dismissed by the Judicial Commissioner for Manipur.
On appeal by certificate the appellant
contended that the impugned order of compulsory retirement was null and void ab
initio because: (1) Fundamental Rule 56 at the material time contained no
reservation of any power in the appointing authority to retire him without any
reason on three month's notice after the age of 55 years: (2) the impugned
order was made expressly under a non-subsisting authority viz., Government of
India Decision No.. 23 below Fundamental Rule 56, at the time' of impugned
notice and (3) the Government of India Decision not having been incorporated in
Fundamental Rule 56, it amounted to a mere executive instruction and not a rule
within the meaning of Article 309.
Dismissing the appeal, the Court
HELD: (1) Compulsory retirement is not a
punishment, there being no stigma in it. [1024 D] Tara Singh etc. etc. v. State
of Rajasthan and Ors.
[1975] (3) SCR 1002 reiterated.
(2) If power can be traced to a valid power
the fact that 1he power is purported to have been exercised under non-existing
power does not invalidate the exercise of the power. In the .present case, the
affidavit evidence establishes that the Commissioner exercised his powers and
was of the opinion that it was in public interest to make the order of
compulsory retirement. [1024 E-1025 A] L. Hazari Mal Kuthiala v. Income-tax
Officer, special circle Ambala Cantt. and Anr. [1961] 1 SCR 892-----41 I.T.R.
12 and Hukumchand Mills Ltd. v. State of
Madhya Bharath and Anr. [1964] 6 S.C.R. 857=52 I.T.R. 583 followed.
(3) The absence of recital in the order of
compulsory retirement that it was made "in public interest" is not
fatal as long as power to make compulsory retirement in public interest is
there and the power, in fact, is shown in the facts and circumstances of the
case, to have been exercised in public interest. Whether the, order is correct
or not is not to be gone into by the Court. In the instant case, the Government
affidavit is that the Chief Commissioner made the order because he was of the
opinion. that it was in public interest to do so. The order is made bona fide
and nothing us on the record to show that the affidavit is unbelievable. [1025
A-B, E-G] Union of India v. J. N. Sinha [1971] 1 SCR 791 applied.
Butail v. Union of India & Ors. [1971] 2
SCR 55 referred to.
1023
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2022 of 1969.
Appeal,from the Judgment and Order dated
26.10.1968 of the Judicial Commissioner for Manipur in Civil Appln. Case No.
23/67) R.K. Garg, S.C. Agarwal & V.J. Francis, for the Appellant.
V.C. Mahajan & R.N. Sachthey, for
Respondent Nos. 1-3 The Judgment of the Court was delivered by RAy,C.J.--This
appeal is by certificate from the judgment dated 26 October 1968 of the
Judicial Commissioner for Manipur.
The appellant by a writ petition challenged
the order of respondent No. 1 by which the appellant was compulsorily retired.
The Judicial Commissioner dismissed the writ
petition of the appellant.
The appellant was born on 1 January 1911. He
joined the erstwhile State of' Manipur as a junior clerk in 1935.
Though he was not a Law Graduate, he rose to
become a permanent Puisne Judge in Manipur State Chief Court with effect from 5
October 1949. After the Government of India took over the administration of
Manipur the appellant was appointed as a Subordinate Judge with effect' from 25
January 1950 on a temporary basis. On the enactment of Manipur Courts Act 1955
the Court of Subordinate Judge was established .on 1 March 1956. The appellant
was appointed as the Judge of that Subordinate Court from that date.
The appellant did not earn good reports from
superior officers. He was reverted to the post of subordinate Judge.
The appellant was served with a notice dated
30 June 1966 that he was required to retire from Government service with effect
from 1 October 1966 in pursuance of the directions of the President in
Paragraph 6 of the. Government of India Decision No. 23 noted below Fundamental
Rule 56.
The above Decision No. 23 was contained in
the Memorandum of the Government of India, Ministry of Home Affairs dated 30
November 1962. The Decision came into force on 1 December 1962. Under Paragraph
6 of the Decision the appointing authority was empowered to require a
Government servant to retire after he had attained the age of 55 years on three
months’ notice without assigning any reason. This provision was really intended
to retire an officer who had completed 30 years' qualifying service. The
purpose of the provision was to weed out unsuitable employees after they
attained the age of 55 years.
The Government Decision No. 23 below
Fundamental Rule No. 56 which came into force on 1 December 1962 as aforesaid
was substituted by new Rule .on 21 July 1965. The new rule provided that 1024
if the appropriate authority is of, opinion that it is in public interest to do
so, he has the absolute right to retire any Government servant after he
attained the age of 55 years with notice of not less than three months.
The appellant on receiving the notice for
retirement prayed for his being retained in service after the age of 55 years
in public interest. The representation of the appellant was rejected. It is in
this background that the appellant filed the writ petition.
The principal contention of the ,appellant
was that the impugned order of compulsory retirement was null and void ab
initio because the Fundamental Rule 56 at the material time contained no
reservation, of any powers in the appointing authority to retire him without
any reason on three months notice after the age of 55 years. Emphasis was
placed by counsel on the fact that the impugned order was made expressly under
the authority of Government of India Decision No. 23 below Fundamental Rule 56
and this Decision was not subsisting at the time of the impugned notice. It was
also. contended that the Government Decision was not incorporated in
Fundamental Rule 56 and therefore it amounted to a mere executive instruction
and not a rule within the meaning of Article 309. The appellant also contended
that in substance, the compulsory retirement was removal under Article 311.
Compulsory retirement is not a punishment.
There is no stigma in compulsory retirement. See Tara Singh etc. etc.
v. State of Rajsthan and ors.(1) It is also
the view of this Court that if power can be traced to a valid power the fact
that the power is purported to have been exercised under non-existing power
does not invalidate the exercise of the power. See L. Hazari Mal Kuthiala v.
Income-tax Officer, Special Circle Ambala Court and Anr.(2) and Hukumchand
Mills Ltd. v. State of Madhya Bharath & anr.(3) The Government case is that
the Chief Commissioner by reason of the order of the President contained in
Government of India, Ministry of Home Affairs Memorandum No. 33/18/62ESTS(A)
dated 30 November 1962, followed by Fundamental (Sixth Amendment) Rules, 1965,
had the power to retire the Government servant without assigning any reason if
he was of opinion that it was in the public interest to do so.
The relevant Fundamental Rule 56(J) is as
follows :-"Notwithstanding anything contained in this Rule, the
appropriate authority shall, if it is of the opinion that it is in the public
interest to do so, have the absolute right to retire any Government servant
after he has attained the age (1) [1975] S.C.R. 1002. (2) [1961] 1 S.C.R.
892.=41.I.T.R. 12.
(3) [1964] 6 S.C.R. 857=52 I.T.R. 583.
1025 of 55 years by giving him notice of not
less than three months in writing".
The affidavit evidence is that the order of
compulsory retirement was made in public interest. The absence of recital in
the order of compulsory retirement that it is made in public interest is not
fatal as long as power to make compulsory retirement in public interest is
there and the power in fact is shown in the. facts and circumstances of the
case to have been exercised in public interest.
In R.L. Butail v. Union of India &
Ors.(1) this Court considered Fundamental Rule 56(j) and the circumstances
under which compulsory retirement can be made in public interest. It is true
that in Butail's case (supra), the notice in terms of Fundamental Rule 56(j)
was served, namely that the order of complusory retirement was made in public
interest.
A comparision between Paragraph 6 of Decision
No. 23 below Fundamental Rule 56 and Fundamental Rule 56(j) of amended F.R. 56
shows that the two deal with the identical matter of compulsory retirement. The
common features are that the Government servant may be asked to retire after
the age of 55 years. Second, such retirement is ordered to be made by giving
the Government servant a notice of three months. Third, the power to retire is
an absolute right without assigning any reason. Fourth, under the amended
Fundamental Rule 56(j) the power is exercised only if the appropriate authority
is of opinion that it is in public interest to do so.
The Government affidavit is that the Chief
Commissioner made the order because he was of opinion that it was in public
interest to do so. Whether the order is correct or not is not to be gone into
by the court. See Union of India v. J. N. Sinha.(2) In the present case,
Counsel for the appellant contended that it did not appear in the order that
there was any application of mind that the order was being made in public
interest. In Butail's ease (supra) it was said that the plea that the
appropriate authority had not applied its mind failed there in view of the
clear averments made in that regard in the affidavit and, no reason was
adequately shown to discord those statements as untrue Or Otherwise unbelievable.
In the present case, the affidavit evidence establishes that the Commissioner
exercised his powers because he was of the opinion that it was in pub, lie
interest to make the order of compulsory retirement. The order in the ,present
case is made bona fide and nothing is on the record to show that the affidavit
is unbelievable.
the foregoing reasons the appeal fails and is
dismissed with no order as to costs.
S.R. Appeal dismissed.
(1) [1971] 2 S.C.R.. 55. (2) [1971] 1 S.C.R.
791.
Back