Doshi Fatechand Morarji v. A Jamnagar Municipal Corporation

M.R. CALLA, J.

(1) THROUGH this Special Civil Application, the petitioner seeks to challenge the notice dated 30. 5. 1988 issued by the respondent Corporation whereby the petitioner was subjected to compulsory retirement w. e. f. 31. 8. 1998 and he has also sought other allied reliefs.

(2) THE petitioner came to this Court with a case that the petitioner was born on 12. 12. 31 had joined the service of Jamnagar Municipality on 7. 11. 51. That the respondent Corporation had adopted the Pension and Gratuity Rules according to which the retirement age of the Administrative Staff is 58 years. At the relevant time in the year of 1988 while the petitioner was working as Office Superintendent in the respondent Jamnagar Municipal Corporation which will be hereinafter referred to as the "corporation", a notice dated 30. 5. 88 was given to the petitioner ordering his compulsory retirement from service w. e. f. 31. 8. 88 whereas according to his date of birth 12. 12. 31, he was to continue in service till December, 1989 and therefore his grievance is that he has been made to retire compulsorily about 16 months prior to the age of superannuation prescribed in the Pension Gratuity Rules. It has also been averred by the petitioner that had he not been given compulsory retirement w. e. f. 31. 8. 88, he could have also been promoted to the higher post before his attaining the age of 58 years and would have got all other consequential benefits such as salary, allowances, pension, gratuity etc. It has also been stated that ever since the date of his joining the service, he had rendered about 37 years of meritorious service without any break and he was obedient, sincere and hard working throughout his career. It is then stated that even as per the notice of compulsory retirement, the petitioner was to be given all consequential benefits but he had not been paid anything. After the date of retirement, he sent a letter dated 20. 6. 89 to the Deputy Commissioner of the respondent Corporation to pay him all the arrears, benefits, allowances etc. Thereafter also, he had sent several letters/applications but no reply was given. Finally, he sent a letter dated 2. 4. 90 and thereafter the Special Civil Application dated 10. 4. 91/29. 4. 91 was filed in this Court on 18. 6. 91. It appears that on 19. 9. 91, leave to amend was granted and notice was issued and thereafter rule was issued on 9. 9. 92. On behalf of the respondent an affidavit in reply dated 17. 2. 2001 was filed seeking to traverse the claim of the petitioner. Thereafter when the matter came up before the Court on 2. 7. 2001, the respondents were granted 10 days time to file further affidavit to show any material against the petitioner necessitating the impugned order. However, till this date no further affidavit in reply has been filed by the respondent Corporation. The matter was listed for final hearing under the heading of `pension. Mr. Manoj Popat appearing on behalf of the petitioner has submitted that the impugned notice whereby he was given compulsory retirement has been issued in arbitrary exercise of power under Rule 5 (a) of the Jamnagar Municipal Servants "the age of compulsory retirement rules" under Section 271 (1) of the Gujarat Municipalities Act, 1963. He has submitted that no reasons have been assigned in the order, no material whatsoever has been placed on record to justify that the compulsory retirement was warranted in the case of the petitioner and he has submitted that the order has been issued without application of mind in arbitrary and mechanical exercise of power under Rule 5. He has also submitted that in the month of August, 1996, a settlement had been arrived at between the Staff Union and the respondent Corporation as per the rules and regulation framed pursuant to the settlement, the employees working in the respondent Corporation were to continue up to attaining the age of super annuation of 60 years. Yet the petitioner was retired w. e. f. 31. 8. 1988 even before he could attain the super annuation age of 58 years. It has also been submitted that had he been continued in service even uptill the age of 58 years he would have reached the maximum of the pay scale and in that case he could have got pensionary benefits at a higher rate. It has also been contended that the petitioner was entitled to get all the benefits of leave salary, special allowance, pension, leave reimbursement, Earned leave, gratuity etc. as per details in the tabulated form annexed to the petition as Annexure C along with a copy of the letter dated 2. 4. 90.

(3) MR. J. R. NANAVATY, Ld. Sr. Counsel appearing for the respondent Corporation has submitted that `jamnagar Nagarpalika Karmachari na Nivrut Vyay Maryada Niyam framed in exercise of powers under Section 271 (1) of the Gujarat Municipalities Act, 1963 are applicable to the petitioner and the petitioner has been retired under rule 5 (a) of the said rules. That the said rule requires 3 months notice which was given to the petitioner. It has also been pointed out that a sum of Rs. 12487. 25 ps. towards balance Earned leave of 199 days by order passed in October 1988 was paid to the petitioner. The petitioner has been given pension as stated in the said order. That petitioner was also given gratuity of Rs. 40,182. 00 under the payment of Gratuity Act, 1972 by order dated nil October, 1988. This reply refers to Annexure X,y and Z passed in October 1988 but infact no copies of such documents such as X,y and Z referred in Para 2. 2. to 2. 4 of the affidavit in reply dated 17. 2. 2001 have been enclosed. It has been submitted that all the consequential benefits admissible to him have been given. The averments leading to the settlement which was arrived at in the month of October, 1996 has been denied. The impugned order has been sought to be defended on the basis of Rule 5 (a) and Mr. Nanavaty has submitted that an identical Special Civil Application No. 6616 of 19990 which had been filed against the respondent corporation was decided by the Honourable Bench of this Court on 17. 11. 2000 and that petition was rejected and the rule was discharged. Mr. Nanavaty has submitted that in view of the order dated 17. 11. 2000 passed in Special Civil Application No. 6616 of 1990, this Special Civil Application deserves to be rejected.

(4) MR. MANOJ Popat while arguing in rejoinder has submitted that the earlier Special Civil Application No. 6616 of 1990 was decided on its own facts, that it was a judgement per incurian and the same cannot form the basis for rejection of the present petition particularly in view of the following decisions of the Honourable Supreme Court:-

i. (1999) 4 SCC 235 [LQ/SC/1999/411] Rajat Baran Roy and Others Vs. State of West Bangal and Others. ii. (1998) 7 SCC 310 [LQ/SC/1998/872] M. S. Bindra Vs. Union of India and Others. iii. (2000) 4 SCC 262 [LQ/SC/2000/658] Government of Andhra Pradesh and Anr. Vs. B. Satyanarayan Rao (Dead) by LRs and Others.

(5) I have considered the submissions made on behalf of both the sides and have gone through the pleadings as also the judgement and order dated 17. 11. 2000 rendered in Special Civil Application No. 6616 of 1990. It may be straightway observed that no doubt Special Civil Application No. 6616 of 1990 was rejected on 17. 11. 2000 and in that case also the impugned order was sought to be defended on the basis of Rule 5 (A) but I find that the petition was rejected because the Court in that case has expressed in no uncertain terms that:-

"after having taken into consideration the facts and circumstances emerging from the record, which are, virtually, not in dispute and bearing in mind the general principles of law governing the scheme of compulsory retirement, which has a historical reason and practical purpose and, in particular, the provisions of rule 5 (a) of the Rules, the petition challenging the impugned order of compulsory retirement recorded by the respondent Corporation against the petitioner and the claim for pensionary benefits is quite meritless and deserves to be rejected with costs. Accordingly, it is rejected with costs. Rule discharged. "

It is, therefore, clear that that case was decided on the basis of the position which emerged from the record in that case and it was on the basis of the consideration of the facts and circumstances of that case which cant be made applicable as it is, to the facts of the present case. Besides this, in the case of Rajat Baran Roy and Others Vs. State of West Bengal and Others (Supra), Rule 75 (aa) of the West Bengal Service Rules Part-I was the relevant rule on the basis of which the order had been passed and the same is reproduced as under for ready reference:-

"notwithstanding anything contained in this rule the appointing authority shall, if it is of opinion that it is in the public interest so to do, have the absolute right to retire a government employee by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice-

(i) If he is in Group A or Group B (erstwhile gazetted) service of post and had entered government service before attaining the age of 35 years, if he has attained the age of 50 years, and

(ii) In all other cases after he has attained the age of 55 years. "

Although in that case rule was the base, the rule provided compulsory retirement in public interest. The Supreme Court found that there was no justification in the impugned order for any aspect of public interest or its and ingredient, what relevant rules were specially taken into consideration while issuing the impugned orders and the orders were therefore held to be bad on account of non-application of mind for want of material particulars which was mandatory. The Supreme Court found it to be a case of non-application of mind to the relevant considerations as contemplated under rule 75 (aa) of the West Bengal Services Rules Part I.

(6) IN the case of M. S. Bindra V. Union of India (Supra), the Supreme Court was concerned with the question of compulsory retirement of an officer of Indian Revenue Services having a steep rise to his credit in his service career was held in high esteem but suddenly at the age of 52 years his integrity was doubted and he was compulsorily retired. In this decision, the Supreme Court held that,

"want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "nemo firut repente turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To infer an officer as one of `doubtful integrity it is not enough that doubts fringes on a mere hunch. The doubt should be of such a nature as would reasonably and consciously be entertained by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label `doubtful integrity.

(7) IN the case of Government of Andhra Pradesh Vs. B. Satyanarayan Rao (Supra), it was held by the Supreme Court that the rule of per incuraim can be applied where a court is to consider any statute while deciding that issue. This is not the case here. Moreover, a case cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another coordinae Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to be laying down a correct law.

(8) IT has been therefore submitted that the judgement cannot be made applicable to the facts of the present case which is a case of no material whatsoever to justify the order of retirement and despite the opportunity granted on 25. 7. 2001 to the respondents to file any further affidavit in reply to justify the order of compulsory retirement in addition to the earlier reply dated 17. 2. 2001, the respondent had failed to produce any material whatsoever.

(9) RULE 5 (a) on the basis of which the impugned order has been passed , the petitioner has been sought to be dismissed by the respondent Corporation is reproduced as under:-

"5 (a). Jamnagar Municipality may require any servant to retire at any time on or after He/she attains the age of 55 years on giving him/her three months previous written notice without assigning any reason.

b. Any servant may retire on or after attaining the age of 55 years voluntarily after giving at least three months previous notice to the Municipality. Above rules 5 (1) and (b) shall apply to all classes of servants except Class IV Servants. "

A bare reading of this rule would show that this rule confers unbridled powers on the Municipality to require the municipal servant to retire at any time on or after he/she has attained the age of 55 years by giving 3 months written notice without assigning any reason. The Rule making Authority has not declared its policy as to how the power under this rule is to be exercised. There may be number of employees who attain the age of 55 years, out of those employees who is to be subject to retirement at the age of 55 years has not been provided. There is no guideline in this rule and in absence of any criteria or guidelines and in absence of the legislative policy, the rule confers absolute powers without providing any criteria or guidelines for exercising power unlike the rules as they are in other various services including the Bombay Civil Services Rules, 1959. It does not even speak of `public interest. Whereever the statutory rules provided for compulsory retirement not by way of punishment but on completion of certain period of qualifying service or attaining a particular age such rules invariably include criteria with regard to the public interest on inquiry of proficiency etc and the validity of such rules has been upheld by the Court in number of cases. In the instant case, whereas he validity of the rule has not been subjected to any challenge in the petition, it is not necessary for this Court to go into the validity of the rule on the ground that it confers an unbridled power to give compulsory retirement at the age of 55 years. However, the matter doesnt end here. Even if it is assumed that the respondent Corporation had the power to retire a servant at the age of 55 years by 3 months written notice without assigning any reasons, the question is that even if an authority is possessed of a power whether such power has been exercised in a reasonable manner or it has been exercised in an arbitrary or capricious manner. In the instant case, no material whatsoever has been placed on record in any form by the respondent Corporation so as to justify compulsory retirement of the petitioner. Even if the rule does not provide any guidelines or criteria and provides that the concerned authority may retire any servant at any time on after attaining the age of 55 years by giving 3 months notice without assigning any reason, it goes without saying that out of more than one employee who attained the age of 55 years, any one employee or more than one employees are chosen to be subjectdc to the action under Rule 5 (a) so as to retire at the age of 55 years, there must be some basis and material for taking a decision that his retirement at the age of 55 years as against the normal age of super annuation of 58 years was warranted. The question as to who should be retired at the age of 55 years or thereafter before attaining the age of 58 years and who should be allowed to be continued till the age of 58 years i. e. the normal age of super annuation cant be left at the sweet will and caprice of the authorities so as to pick and choose. In the instant case, the petitioner had made a categorical averment in Para 4 of the petition that he had put in 37 years of meritorious service, was obedient, sincere and hard working throughout his career. Such a categorical averment has been denied in the affidavit in reply dated 17. 4. 2001. The contents of Para 4 of the petition and the reply thereto as given by the respondent Corporation are quoted as under:-

"4. The petitioner "4. Referring to further says and submits paragraphs 4,5 and 6 of the that as stated above, he petition, I say that all joined the service of the benefits have been given Corporation on 7. 1. 51 and to the petitioner and, without any break in therefore, he has no service he puts 37 years right to make grievance further says and submits about the same. " that as stated above, he joined the service of the Corporation on 7. 1. 51 and without any break in service he puts 37 years of meritorious service in the respondent corporation. He was obedient, sincere and hardworking throughout his career. "

(10) AFTER this reply no further reply whatsoever has been filed despite the grant of opportunity by the Court on 25. 7. 2001. Therefore, it is clear that the respondent has failed to point out any material whatsoever and it appears from the pleadings that not even a little finger could be raised against the petitioner and not even an iota of material has been placed on record to justify the order of retirement while the same was challenged way back in the year 1991 and this petition was remained pending for a period of about 10 years by now. This Court, therefore, finds it to be a case of total absence of any evidence or material to justify the order of compulsory retirement and one fails to understand as to why the petitioner was subject to compulsory retirement under rule 5 (a) and for what reasons and conclusion the notice of compulsory retirement was given to the petitioner does not stand the judicial scrutiny even within the limit and permitted scope of judicial review in such cases. In the opinion of this Court, it is a case of blatent arbitrary exercise of power under Rule 5 (a) and therefore without going into the question of validity of Rule 5, the notice of compulsory retirement by which he was subjected to compulsory retirement w. e. f. 31. 8. 1998 is found to be wholly unjust and arbitrary order. It may be observed that even if a rule is valid, the exercise of power under that rule in an arbitrary and unreasonable manner renders the action taken under that rule to be invalid and therefore the impugned notice dated 30. 5. 88 as was given to the petitioner by which he was made to retire compulsorily w. e. f. 31. 8. 88 before his attaining the normal age of super annuation of 58 years is hereby quashed and set aside. In view of the conclusion to which this Court has arrived, it is not necessary for this Court to go into the question about the settlement which had been arrived at between the Staff Union and the Municipal Corporation in 1996 as in this aspect, there are disputed question of fact as per the pleadings of the parties that the normal age of retirement must be 60 years and therefore, this Court has proceeded on the basis that the normal age of retirement according to the rules was 58 years.

(11) ACCORDINGLY, this Special Civil Application is allowed. The notice dated 30. 5. 88 by which the petitioner was subjected to compulsory retirement w. e. f. 31. 8. 88 is hereby quashed and set aside. Whereas the petitioner has already crossed the normal age of superannuation of 58 years, it is ordered that as a result of the quashing and setting aside of his compulsory retirement in terms of the notice dated 30. 5. 1988, the petitioner shall be entitled to all consequential benefits as if the notice dated 30. 5. 88 had never been issued against him and all the retiral benefits shall also be computed on the basis as if he had continued to work till he attained the age of 58 years and any benefits, dues, arrears, etc. shall be paid to the petitioner after adjusting the amounts which have already been paid to him as stated by the respondent in their reply. Rule is made absolute. No order as to costs.