Ishwar
Singh Vs. State of Rajasthan & Ors [2005] Insc 8 (5 January 2005)
Arijit
Pasayat & S.H. Kapadia
(Arising
out of S.L.P. (Civil) No. 22556 of 2003) ARIJIT PASAYAT, J.
Leave
granted.
Appellant
calls in question legality of the judgment rendered by a Division Bench of the
Rajasthan High Court at Jaipur, affirming the view of the learned Single Judge
that the pre-mature retirement of appellant as directed by the respondents was
in order.
A
bird's eye view of the factual position would suffice.
Sadul Shahar
Kray Vikray Sahakari Samiti (hereinafter referred to as the 'employer') is a
society registered under the Rajasthan Cooperative Societies Act, 1965 (in
short the 'Act'). The appellant was serving as its manager. On consideration of
service records of the appellant the employer concluded that there was
continuous fall in his work performance and as such it was in the public
interest to pre- maturely retire him. He had attained the age of 56 years and
served for more than 27 years. The Chief Executive officer issued an office
order dated 1.4.1988 compulsorily retiring him from service under the
provisions of Rule 244(2)(i) of the Rajasthan Service Rules, 1951 (in short
'Service Rules'). The appellant challenged the said order by way of a revision
petition before the Additional Registrar-II, Cooperative Societies, Rajasthan Jaipur
(in short 'Additional Registrar'). By order dated 9.5.1996, the revision was
allowed on the ground that Rule 244(2) of the Service Rules was not applicable
to the employer-society and on the other hand his service conditions were
governed by Rule 41 of the Rajasthan Cooperative Societies Rules, 1966 (in
short the 'Rules'). Under the said Rule approval of the Registrar is a
condition precedent for pre-mature retirement. Employees-society challenged the
decision of the Additional Registrar by way of revision before the State
Government under Section 128 of the Act. The Secretary, Cooperative Department,
Government of Rajasthan, Jaipur (in short 'Secretary') found that the revision before
the Additional Registrar was not competent as the order was passed by the
Administrator who was not an officer subordinate to the Registrar. He was,
therefore, of the view that the Additional Registrar had no jurisdiction to
hear the revision in terms of Section 128 of the Act. Accordingly, he set aside
the order of the Additional Registrar. The order was challenged by the
appellant under Article 226 of the Constitution of India, 1950 (in short the
'Constitution') before the High Court.
Before
the learned Single Judge, who heard the matter it was contended that the power
of revision under Section 128 of the Act stood exhausted by order of the
Additional Registrar and as such the Secretary could not have exercised the revisional
power in respect of the same order. Learned Single Judge rejected the
contention holding that Additional Registrar had exercised the delegated power
of the Registrar and not of the State Government and, therefore, the revision
before the State Government was maintainable and the Secretary had jurisdiction
to deal with the matter. In any event, Additional Registrar could not have
entertained the revision. The judgment of learned Single Judge was questioned
by Letters Patent Appeal. Stand of the appellant before the Division Bench was
that once the delegate exercised the power of revision, it stands exhausted and
such power cannot be exercised again by original authority. Reference was made
to certain decisions of this Court in this context. The Division Bench of the
High Court was of the view that the factual position was entirely different.
Under Section 128 the revisional power can be exercised by two authorities i.e.
Government and the Registrar. In the cases to which reference was made by the
appellant there was a single authority who had delegated the power. It was
further noted that under the Act revisional power is vested with two
authorities. The Registrar who was the delegator of power to the Additional
Registrar could not have entertained the revision. But there was no embargo on
the State Government to entertain the revision application. Further the
Secretary had clearly observed that the Additional Registrar had no power to
entertain the revision as the Administrator was not an officer subordinate to
him. Accordingly, LPA was dismissed.
In
support of the appeal Mr. Mahabir Singh, learned counsel submitted that the
High Court erred in holding that Section 128 of the Act related to two
authorities i.e. the State Government and the Registrar. In fact the two
authorities are interchangeable. If one authority has exercised the revisional
power other authority logically could not have exercised such power. In any
event, second revision was not maintainable. Strong reliance was placed on Roop
Chand v. State of Punjab and Anr. (AIR 1963 SC 1503) for
supporting the plea. It was further contended that the service rules had no
application as the employer had never decided to adopt the service rules.
Before the Additional Registrar a plea was taken that Administrator had no
power to direct compulsory retirement as he was not the appointing authority.
This
plea was given up stating that the Administrator having taken over the
management had authority to pass the order of pre-mature retirement subject of
course to fulfilment of requirements of Rule 41 of the Rules, and not under
Rule 244 of the Service Rules.
Per
contra, learned counsel for the respondents submitted that the factual scenario
as presented by the appellant is not correct. In fact, the employer society had
decided to adopt the service rules long before the order directing pre-mature
retirement was passed. Further the State Government was competent to entertain
the revision application as the Registrar was one of the two authorities
indicated in Section 128 to exercise revisional power. The impugned orders of
the learned Single Judge and Division Bench of the High Court did not suffer
from any infirmity to warrant any interference.
It is
an accepted position in law that to 'delegate' to another is not to denude yourself.
As was observed by Wills, J. in Huth v. Clarke (25 Q.B.D. 391, "In my
opinion the word, in its general sense and as generally used, does not imply,
or point to, a giving up of authority, but rather the conferring of authority
upon someone else".
As
observed by Lord Coleridge, C.J. in 25 Q.B.D. 304, the word 'delegation'
implies that powers are committed to another person or body which are as a
rule, always subject to resumption by the power delegating. The person
delegating does not denude himself. (Per Wharton's Law Lexicon, 1976 Reprint
Ed. at page 316). Delegation implies also the power to withdraw delegation. As
indicated in Wharton's Law Lexicon, delegation is a sending away; a putting
into commission; the assignment of a debt to another; the entrusting another
with a general power to act for the good of those who depute him. The word
'delegate' means little more than an agent. An agent exercises no power of his
own but only the powers of his principal. The observation in Huth's case
(supra) was referred to in Roop Chand's case (supra). In general, a delegation
of power does not imply parting with authority.
The
delegating body will retain not only power to revoke the grant, but also power
to act concurrently on matters within the area of delegated authority except in
so far as it may already have become bound by an act of its delegate. (See Battelley
v. Finsbury Borough Council (1958 LGR 165).
In
Corpus Juris Secondum, Volume 26, 'delegate' has been described as follows:
"As
a noun, a person sent and empowered to act for another, one deputed to
represent another in a more popular but less accurate sense, a regularly
selected member of a regular party convention.
As a
verb, in its general sense and as generally used, the term does not imply, or
point to, a giving up of authority, but rather the conferring authority upon
someone else.
At
common law, it is the transfer of authority by one person to another, the act
of making or commissioning a delegate.
Expression
'delegation of authority of power' is a term which like the word 'delegate'
does not imply a parting with powers by the person who grants the delegation,
but points rather to the conferring of an authority to do things which
otherwise that person would have to do himself." In Collins English Dictionary
the word 'delegate' has been stated to be a person who is chosen to vote or
make decisions on behalf of a group of other people. If you delegate duties,
responsibilities or power to someone, you give them those duties, those
responsibilities, or that power so that they can act on your behalf. If you are
delegated to do something you are given the duty of acting on someone else's
behalf by making decisions, voting, or doing some particular work.
In
Black's Law Dictionary, 6th Edition, the word 'delegate' has been stated to
mean a person who is appointed, authorized, delegated or commissioned to act in
the stead of another. Transfer of authority from one to another. A person to
whom affairs are committed by another. 'Delegation' according to said dictionary
means, instructing another with a general power to act for the good of those
who depute him; transfer of authority by one person to another.
According
to Venkataramaiya's Law Lexicon, 'delegation' as the word generally used does
not imply a parting with powers by the person who grants the delegation, but
points rather to a conferring of an authority to do things which otherwise the
person would have to do himself.
As was
observed by this Court in State of Orissa and Ors. v. Commissioner of Land Records & Settlement, Cuttack and Ors. (1998 (7) SCC 162) and in
OCL India Ltd. v. State of Orissa and
Ors. (2003 (2) SCC 101), if an authority delegates the power to act it shall be
deemed to be an act of the delegator. In such a situation there is no scope for
revision of the order of the delegate by the delagator. In Commissioner of Land
Records & Settlement's case (supra) it was noted that the delegator (also
described as the principal) cannot review an order of the delegate. It was,
inter alia, observed by this Court as follows:
"It
may be argued that if the order of the delegate is tantamount to the order of
the principal, then the principal can review such an order of the delegate.
This appears to be plausible at first blush but is, in our opinion, not correct
because of the intervention of another fundamental principle relating to
"review" of orders. The important principle that has to be kept in
mind here is that a review application is to be made only to the same Judge or
if he is not physically available, to his successor.
The
decision of the Privy Council in Maharajah Moheshur Sing v. Bengal Govt. 3 WR
45 (PC)) to which reference was made by learned Senior Counsel, Shri T. L. Vishwanath
Iyer, is very apt in this connection.
Adverting
to the basic concept of review, it was observed by the Privy Council: (p.47)
"It must be borne in mind that a review is perfectly distinct from an
appeal; that is quite clear from all these Regulations that the primary
intention of granting a review was a reconsideration of the same subject by the
same Judge, as contradistinguished to an appeal which is a hearing before
another Tribunal." Their Lordships added:
"We
do not say that there might not be cases in which a review might take place
before another and a different Judge; because death or some other unexpected
and unavoidable cause might prevent the Judge who made the decision from
reviewing it; but we do say that such exceptions are allowable only ex
necessitate. We do say that in all practicable cases the same Judge ought to
review; ......" It is, therefore, clear that the same Judge who disposes
of a matter, if available, must "review" the earlier order passed by
him inasmuch as he is best suited to remove any mistake or error apparent on
the face of his own order. Again, he alone will be able to remember what was
earlier argued before him or what was not argued. In our opinion, the above
principle is equally applicable in respect of orders of review passed by
quasi-judicial authorities.
However,
these principles about which there is no dispute have no application to the
facts of the present case. It was in reality not revision by a delegator. The
State Government had nowhere delegated revisional power to the Additional
Registrar. Rule 244 of the Service rules which is noted above, is applicable to
the appellant clearly provides that an employee may be compulsorily retired
after completion of 25 years of service.
Bare
reading of the aforesaid provision makes the position clear that the appointing
authority has the absolute right to retire in public interest any employee by
giving him a previous notice in writing. The compulsory retirement can be
effected on the date on which he completes 25 years of service or he attains 50
years of age, whichever is earlier or, on any date thereafter. As noted at the
threshold, the age and service period are applicable in this case.
It is
to be noted that the learned Single Judge categorically held that the Board of
Director on 4.5.1977 adopted resolution making service rules applicable in
respect of employees of the society and a notification dated 3.8.1980 was
issued by the Registrar Cooperative Societies, Jaipur by which the Civil
Services (Classification, Control and Appeal) Rules, 1958 (in short the 'CCA
Rules') were made applicable to the employee also. Therefore service Rules were
clearly applicable to the appellant.
Coming
to the basic issue as to whether the State Government could have exercised revisional
power, a few provisions need to be noted:- Section 128 of the Act reads as
follows:
"128.
Power of the Government and Registrar to call for proceeding of subordinate
officers and to pass orders thereon
(1)
The State Government and the Registrar may call for and examine the record of
any inquiry or the proceedings of any other matter, of any officer subordinate
to them, except those referred to in section 125, for the purpose of satisfying
themselves as to the legality or propriety of any decision or order passed, and
as to the regularity of the proceedings of such officer. If in any case, it
appears to the State Government or the Registrar, that any decision or order or
proceeding so called for should be modified, annulled or reversed, the State
Government or the Registrar, as the case may be, may after giving persons affected
thereby an opportunity of being heard, pass such order thereon as it or he
thinks just:
Provided
that every application to the Registrar or the Government for the exercise of
the powers under this section all be preferred within ninety days from the date
on which the proceedings, decision or order to which the application relates
was communicated to the applicant.
Provided
further that the Registrar shall not exercise the powers under this section in
case in which an appeal lies to him under this Act.
Explanation:- For the purpose of this sub-section
the Assistant Registrar, Deputy Registrar and Joint Registrar exercising all or
any of the powers of the Registrar under this Act shall be deemed to be
subordinate to the Registrar.
(2)
pending the hearing under sub-section (1), the government or the Registrar may
pass such interlocutory order as it or he thinks fit to prevent the ends of
justice from being defeated." In addition, Sections 123, 124 and 125 are
also relevant. Section 124 deals with "Appeals to other authorities".
Chapter XIII deals with "Appeal, Revision and Review". Section 123
deals with "Constitution of and appeals to the Tribunal". Sub-section
(6) of Section 123 provides for appeal to the Tribunal against the decision of
the Registrar under certain provisions. Section 124 reads as follows:
"124.
Appeals to the other authorities:
(1) An
appeal shall lie under this section against,
(a) an
order of the Registrar made under sub- section (2) of Section 8 refusing to
register a Co-operative Society;
(b) an
order of the Registrar made under sub- section (4) of Section 13 refusing to
register an amendment of the bye-laws of a co-operative society;
(c) an
order of the Registrar made under sub- section (2) of Section 14;
(d) an
order of the Registrar made under sub- section (1) of Section 17;
(e) a
decision of the co-operative society other than that of a Farming and
Producers' Society, as classified under the rules, refusing to admit any person
as a member of the society or expelling any member of the society;
(f) an
order of the Registrar rescinding in whole or in part any resolution under
Section 32;
(g) a
decision under sub-section (5) of Section 34;
(h) an
order declaring an officer or member of a committee as disqualified from being
elected or being an officer or a member of the committee or of imposing a
penalty on a servant of the society under sub-section (5) of Section 30;
(i) an
order made by the Registrar made under Section 73 apportioning the costs of an
enquiry held under Section 70 or an inspection made under Section 71;
(j) an
order of surcharge made by the Registrar under Section 74;
(k) an
order made by the Registrar under Section 78 directing the winding up of a
co-operative society;
(l)
any order made by liquidator of a co-operative society in exercise of the
powers conferred on him by Section 80, with respect to matters specified in the
rules; or (m) an order made by the Registrar under Section 118.
(2) An
appeal against any decision or order under sub-section (1) shall be made within
sixty days from the date of the decision or order:-
(a) if
the decision or order was made by the Registrar, to the Government; or
(b) if
the decision or order was made by any other person, or a co-operative society,
to the Registrar.
Explanation: - For the purpose of this
sub-section, Registrar shall not include any other person except Additional
Registrar exercising all or any of the powers of the Registrar.
(3) No
appeal shall lie under this Section from any decision or order made in
appeal." Sub-section (2) of Section 124 provides that if the decision or
order is made by the Registrar, appeal lies to the Government and if the
decision or order is made by any other person, or a co-operative society, the
appeal lies to the Registrar. Therefore, under Chapter XIII a clear distinction
is made between the State Government and the Registrar. The test is whether the
two authorities with concurrent revisional jurisdiction are equal in rank. It
is, therefore, not correct as contended by learned counsel for the appellant
that the two authorities i.e. the State Government and the Registrar are
interchangeable. The power of the Government and the Registrar in terms of
Section 128 excludes matters which are covered by Section 125 i.e. revision by
the Tribunal.
In
view of the aforesaid position, we find no merit in this appeal which is
accordingly dismissed without any order as to costs.
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