Bibhuti Bhusan Basu v. Corporation Of Calcutta — 1979 DIGILAW 172 (CAL)

JUDGMENT 1. THE petitioner was initially appointed as draftsman and thereafter transferred. to the Drainage Department and has claimed to be the Draftsman-in-charge, blue Print Section, Drainage department of the respondent Corporation of Calcutta. He has alleged that the duties of Draftsman-in-charge of Blue Print Section are not only risky, dangerous and onerous but such duties are full of responsibilities. In view of the risky, dangerous and onerous character of the duties as required to be performed by the Draftsman-in-charge and persons working under him and on representations being made, it was resolved by the Standing Finance Committee, on or about 21st January, 1965, that the petitioner amongst others be granted a special pay equivalent to 1/5th of his basic pay for discharging onerous duties in the matter of blue and Oxalic printing and performing duties beyond office hours including holidays until mechanic section of Blue printing is introduced in the Drainage Department and that the schedule of establishment as contemplated in section 78 of the Calcutta municipal Act (hereinafter referred to as the said Act), is amended accordingly. Such resolution, by an order of 19th March, 1965, passed by the Corporation of calcutta, was approved and duly ratified. It has been stated that the schedule of establishment as contemplated under section 78 of the said Act was also amended accordingly. It has been stated further in the petition that while discharging the functions and duties in the department as aforesaid, persons employed there including the petitioner were and are required to deal with various dangerous, corrosive and injurious chemicals, such as potassium ferrietaman snide, potash citrash, liquid amonia as a result where of persons employed in the said section by such handling and inhaling of the said chemicals, do sometimes suffer from severe diseases including skin disease and even blood cancer. Because of such character of employment, joint representations were made to the Commissioner, Corporation of Calcutta, for necessary protections and security and ultimately it was decided that persons employed in the concerned department should be provided with a pair of rubber gloves. It has been alleged by the petitioner that even inspite of such recordings and directions, nothing has as yet been done. 2. IT has been alleged by the petitioner that in 1971, as a vindictive measure he was transferred from the post of Draftsman-in-charge of the Blue Print Section. It has been alleged by the petitioner that even inspite of such recordings and directions, nothing has as yet been done. 2. IT has been alleged by the petitioner that in 1971, as a vindictive measure he was transferred from the post of Draftsman-in-charge of the Blue Print Section. He challenged the said order of transfer in Civil Rule No. 2618 (W) of 1971, which was ultimately made absolute and his order of transfer vas set aside. Thereafter, again on 3rd February, 1972 the Executive Engineer, Drainage Department of the Corporation of Calcutta, sought to transfer the petitioner from the Blue Print Section to Drawing Section and such action was also challenged in Civil Order No. 440 (W) of 1972 which on 10th november, 1974, was allowed and the order in question Was set aside by Anil Kumar Sen J. While making the order as aforesaid, his Lordship has observed that the post held by the petitioner was created as a special post with a special designation and with a special pay. As such to transfer the petitioner from such post to some other post with lesser pay, would really amount to penalty, being imposed not in accordance with the regulation. It appears that his lordship further observed that a special post of a Draftsman-in-charge of Blue Print Section as was created with special pay and was given to the petitioner while holding the said post, though the special pay was not allotted to the post itself. It further appears that in the meantime the petitioner went on making representations to the Executive engineer, Drainage Department, for the supply of protective materials as mentioned hereinbefore and which was directed. He has alleged that nothing was done and has as yet been done. As a result whereof, persons who were working there including the petitioner himself have suffered. 3. IT Ms been alleged categorically in the petition that because of the series of successes of the petitioner in this court, whereby orders which were illegally passed against him, have become nugatory and of no effect, Sri B. Nandi, Executive Engineer, Drainage department became displeased with him and as such in order to get rid of him, the said Sri Nandi with the help and assistance of Sri Sukumar Mitra, Deputy Executive Engineer, Drainage department, took various steps and actions against the petitioner. To give vent to such malafide action, the petitioner is alleged to have been served with a Memo of April 1,1975, calling upon him to produce documents and certificates in proof of his age and qualifications. Such Memo was duly replied to by the petitioner on 7th April, 1975. At that time one Sri Peary Shaw, Chairman in the Blue Print Section took privilege leave for 27 days from 23rd February. 1973 and no substitute was provided for in his place. In such circumstances, the petitioner sent a note to the said Sr. Sukumar Mitra for making arrangements for running the Blue Print Section. He has alleged that instead of sending any substitute the said Sri Mitra asked the petitioner to rub the poisonous chemicals in solution on paper himself. This was admittedly the work of the said Sri Peary Shaw. As such the petitioner duly pointed the fact to the said sri mitra. The said Sri Mitra thereafter, on 24th February, 1975, sent a note to Sri B. Nandi, on the basis were of he issued directions that the petitioner Will have to rub the chemicals, himself. Since the petitioner expressed his inability to comply with such, illegal and unwarranted order, the said Sri Nandi and Sri Mitra threatened to take disciplinary action against him. From the correspondences and records as disclosed, it would appear that all throughout the petitioner asked for the protective materials but they were not supplied to him. It has been alleged that instead of supplying such materials or for making arrangement for such supply all on a sudden Sri Nandi, on 8th March, 1976, issued a notice calling upon the petitioner to show cause why disciplinary action should not be taken against him. The petitioner has stated to have duly replied to the said show cause. He has alleged that the lack of sympathy and concern for the safety of subordinates by the said Sri Nandi and Sri Mitra created dissatisfaction amongst the concerned employees and ultimately the drainage department suffered in its working. The petitioner has further alleged that those officers were not concerned with the sufferings either of the department or of the employees who were employed there but as mentioned hereinbefore, they were out to harass the petitioner for the reasons as mentioned hereinbefore. Then come an order of 30th March, 1976, which was received by the petitioner on 2nd. The petitioner has further alleged that those officers were not concerned with the sufferings either of the department or of the employees who were employed there but as mentioned hereinbefore, they were out to harass the petitioner for the reasons as mentioned hereinbefore. Then come an order of 30th March, 1976, which was received by the petitioner on 2nd. April, 1976, whereby the Chief Engineer purported to withhold the petitioners special pay amounting to 1/5th of his pay, with effect from March, 1976. Such action, the petitioner has contended to be wholly illegal, arbitrary, malafide and without jurisdiction He has further alleged that the said order was procured at the machination and instance of the said Sri Nandi and the said Sri Mitra and that too for the reasons as mentioned hereinbefore. 4. HOWEVER, against the said order, the petitioner obtained Civil Rule No. 5141 (W) of 1976, which was made absolute on 20th July, 1976 by Amiya Kumar Mukherjee J. and His Lordship was pleased to set aside the order of withholding special pay and His lordship made it clear that such order would not prevent the Corporation of Calcutta to initiate departmental proceedings against the petitioner. The petitioner has stated that up to the issuing of the present Rule i.e. 16th December, 1976, no such departmental proceeding has been initiated against him. It further appears that after deductions on account of Provident Fund and Compulsory Deposit, the petitioner received a sum of Rs. 214.65 P as his wages for the month of February, 1976. He has stated that when the wages for March, 1976 was offered to him, he found that his special pay of Rs. 114/- was withhold and he was offered Rs. 590. 50 P only On 2nd April, 1976. The petitioner has stated that he has received such lesser payment under protest and without prejudice to his claim for special pay. This order of withholding of special pay as mentioned hereinbefore, was set aside by this Court. The petitioner has alleged that even inspire of such order his special pay has been withhold unilaterally and without basis, apart from being illegally. He, however, made a demand for his arrear wages which according to him has not been granted or in fact has been refused without any basis or due consideration. The petitioner has alleged that even inspire of such order his special pay has been withhold unilaterally and without basis, apart from being illegally. He, however, made a demand for his arrear wages which according to him has not been granted or in fact has been refused without any basis or due consideration. The petitioner, admittedly went on leave and while on leave, he received an order dated 26th October, 1976, passed by Sri N. K. Mukherjee, Commissioner, corporation of Calcutta, purporting to be under section 3 (1) of the West Bengal Municipal Employees' (Compulsory Retirement) Act, 1976 (hereinafter referred to as the said 1976 Act ). Section 3 of the said 1976 Act makes provision for compulsory retirement of any municipal employee and is in the following terms : section 3 : Notwithstanding anything contained in any law for the time being in force or anything contrary, expressed or implied, or in any customs or usage, to the contrary, any municipal employee whose basic pay exceeds Rs. 250/-per month and who has reached the age of 50 years may, (1) by order be compulsorily retired by the appointing authority without assigning any reason whatsoever by serving 3 months notice upon him in the prescribed manner or by giving 3 months wages in lieu of such notice ; provided that no order shall be passed by the appointing authority under this section without obtaining in such manner as may be prescribed prior approval of the State Government. The petitioner has alleged that the notice was improper, irregular and void, because it did not give his proper designation. It appears from the notice that a crossed cheque for Rs. 1,975. 05 p on the State Bank of India, stated to be 3 months wages was sent separately. The petitioner has of course denied receipt of any such cheque or the impugned order of compulsory retirement. He has stated that his pay and allowances as last drawn was Rs. 777.35 p and from such amount a sum of Rs. 54. 00 on account of Provident Fund and Rs. 8.00 on account of compulsory Deposit was required to be deducted. He has stated that after such deductions, his 3 months wages would amount to Rs. 2143. 95 p and thus the sum of Rs. 777.35 p and from such amount a sum of Rs. 54. 00 on account of Provident Fund and Rs. 8.00 on account of compulsory Deposit was required to be deducted. He has stated that after such deductions, his 3 months wages would amount to Rs. 2143. 95 p and thus the sum of Rs. 1975.05 p, which has been stated or offered, to be his 3 months wages in lieu of notice, would be far less than the actual 3 months wages. In that view of the matter, he has further claimed the order under challenge to be invalid, inoperative, irregular and void. He has further alleged that the said order was malafide too and was passed wholly on the basis of extraneous and irrelevant consideration and that too at the instance of the said Sri Nandi and Sri Mitra. In the petition, the petitioner has claimed that he would be entitled to get Rs. 5116. 35 p with 12% interest from the Corporation of Calcutta, on account of his arrear pay and allowances from March, 1976 to 31st october, 1976. He has further claimed other consequential benefits, as would be available to him, because the order under challenge is inoperative and void for the reasons as stated above. These apart, he has claimed, the exercise of power under section 3 (1) of the 1976 Act, by the Commissioner, Corporation of calcutta, as colorable and not bonafide. He has in fact alleged that the said Commissioner, Corporation of Calcutta, without application of mind and in fact mechanically and at the instance of Sarbashree Nandi and Mitra as referred to hereinbefore issued the impugned order and in fact there is no due formation of opinion. He has further contended the order to be a nullity because payment of 3 months actual wages, which according to him was a condition precedent, was not complied with or satisfied. Although there has been grave allegations of malafide and machination against Sri B. Nandi Executive engineer, Drainage Department and Sri Sukumar Mitra Deputy Executive Engineer of the same Department, no return to the rule has been filed by them. But a return has been filed through Sri Ajay Kumar Lal, the Personnel Officer of the Corporation of Calcutta. Such return has of course been filed by the said Sri Lal, not only on his behalf, but also on behalf of the other answering respondents. But a return has been filed through Sri Ajay Kumar Lal, the Personnel Officer of the Corporation of Calcutta. Such return has of course been filed by the said Sri Lal, not only on his behalf, but also on behalf of the other answering respondents. In the said return, the imputation, malafide intention and machination as has been alleged against Sarbashree Nandi and Sukumar Mitra, have been denied. That apart, it has been denied that the petitioner's service, as alleged, was free from any blemish whatsoever. It has been contended by the answering respondents that the action in the instant case visa, in superannuating the petitioner in terms of section 3 (1) of the said 1976 Act was due, bonafide and proper and there was no illegality or any irregularity in the same. It has also been contended that due payment of 3 months wages, as the condition precedent of the passing of the impugned order under section 3 (1), was duly made or at least there was substantial compliance with such requirements. One thing is certain that while making the payment and in computing 3 months wages, the special pay, which the petitioner has contended to be entitled to has not been taken into consideration. 5. MR. Pradipta Roy, who initially opened the case and thereafter the proceeding was taken up by his leader Mr. Saktinath Mukherjee, apart from making submissions for substantiating the malafide nature of the order, contended that the impugned order, on the face of the record, was bad and void as admittedly 3 months wages, to which the petitioner was entitled to, was not sent or tendered along with the impugned order, which according to them, was a mandatory requirement. It was thus submitted that since such mandatory provisions have not been followed or complied with, the order on the face of it would be a nullity and would be of no avail. For the purpose of establishing that the petitioner was required to be paid 3 months wages, firstly reliance was placed on section 3 (1) of the said 197g Act. For the purpose of establishing that the petitioner was required to be paid 3 months wages, firstly reliance was placed on section 3 (1) of the said 197g Act. There is no dispute that in terms of the said section, the petitioner was entitled to his 3 months wages and the point for consideration thus in this case on the pleadings of the parties would be as to what point of time such wages should be tendered and what should be the wages of the petitioner which was required to be tendered. The fact that the class of employees who have been served with a notice under section 3 (1) of the said 1976 Act, would be entitled to 3 months wages, would also appear from rule 3 of the West Bengal municipal Employees' (Compulsory retirement Rules, 1976) which lays down the form of the notice and the manner of service. Rule 3 (1) requires that the appointing authority, may without assigning any reason, retire a municipal employee, with the prior approval of the State Government at any time after he has reached the age of 50 years, f his basic pay exceeds Rs. 250/- per month, after serving 3 months notice upon him in form "a" or by serving upon him an order in Form B in lieu of notice, with 3 months wages and (2) the notice and the order referred to In sub rule (1), shall be served by registered post with acknowledgment due. Thus, in the instant case the petitioner was required to be served with a notice in form "b" and it appears that such a notice in the said form has been served on him. Mr. Thus, in the instant case the petitioner was required to be served with a notice in form "b" and it appears that such a notice in the said form has been served on him. Mr. Mukherjee, for the purpose of establishing that the pay of the petitioner in the instant case would also include the special pay which was granted and on being discontinued, was allowed to be drawn by this Court in Civil Rule No. 440 (W) of 1972, submitted further, with reference to the service regulations of the Corporation of calcutta and more particularly to regulations 5, (14) and (17), which are to the following effect : 5 (14): Pay means the amount drawn monthly by an employee as (i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre, and (ii) special pay and personal pay, and, (iii) any other emoluments which may be specially classed as pay by the Corporation with the sanction of the State Government. 5 (17) : Personal pay means an additional pay granted to an employee (a) to save him from a loss of substantive pay in respect of a permanent post other than a tenure post due to a revision of pay or to any reduction of such substantive pay otherwise than as a disciplinary measure; or (b) in exceptional circumstances, on other personal considerations with the sanction of, the Corporation on the recommendation of the Commissioner. That the special pay of the petitioner was also required to be taken into consideration in the matter of calculating the 3 months pay which he was entitled to under section 3 (1) of the said 1976 Act. He has further submitted that such admitted non-payment of the 3 months pay has made in the impugned order, bad and void. It should be remembered that the term of section 3 (1) of the said 1976 Act require that the tenure of employee of the category of the petitioner, may be terminated by serving 3 months notice upon him in the prescribed manner or by giving him 3 months wages in lieu of such notice. It should be remembered that the term of section 3 (1) of the said 1976 Act require that the tenure of employee of the category of the petitioner, may be terminated by serving 3 months notice upon him in the prescribed manner or by giving him 3 months wages in lieu of such notice. In support of his submissions that 3 months due notice was not given and for such non-payment the order became inoperative. Mr. Mukherjee first relied on the case of Ram Nath v. State of Punjab, A.I.R. 1976 P and H 396 (F. B.). The petitioner in all the connected writ petitions in that case were employees of the Municipal Committee, Bhatinda. They were served with notice of discharge in terms of section 45 (1) of the Punjab municipal Act, 1911, which requires that in the absence of a written contract to the contrary, every officer or servant employed by a committee shall be entitled to one month's notice before discharge, unless he is discharged during the period of probation or for mis-conduct or was engaged for a specified term and charged at the end of it. Since the services of these petitioners were no more required by the Municipal committee, they were served with notice under section 45 (1) of the Punjab Municipal Act, 1911 to the effect that they were discharged with immediate effect from the service of the Municipal Committee and were informed that in accordance with the provisions of the Act, their wages for 1 month were tendered along with the notice, which again they were asked to collect on any working day during office hours. It was contended that even if the impugned notice were treated as notice under section 45 (1) as aforesaid, they did not comply with the mandatory provisions of the section itself, as firstly the section requires issue of 1 month's notice and not tendering of 1 month's salary in lieu of notice as made and secondly the tendering of 1 month's salary was in any case not legal or valid tender, is the amount representing one month's salary was not actually offered to the petitioners at the time of the service of the notice upon them. The Supreme Court has observed that the emphasize should be on the. The Supreme Court has observed that the emphasize should be on the. words "before" in section 45 (1) as would mean that the issue of 1 month's notice or tender of 1 month's salary in lieu of notice is a pre-requisite to the discharge of an employee. It has been observed by the Supreme Court that when it was stated in the notice of discharge that the employee could collect his 1 month's salary in lieu of notice, on any working day during the office hours, the notice was invalid. Thereafter, Mr. Mukherjee relied on the determination by the Supreme Court in the case of Senior Superintendent, R. M. S. Cochin v. K. V. Gopinath, AIR 1972 SC 1487 . In that case the provisions of rule 5 (1) and the proviso there under of the Central Civil Services (Temporary service) Rules, 1975, came up for consideration. There, the services of a temporary Government servant was terminated without paying the amount due to him for the notice period and construing the rule as mentioned above and on consideration of the arguments it has been observed that the proviso which requires that the services of any such Government servant may be terminated forthwith by payment to him of 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 his service, or, as the case may be, for the period by which such notice fall short of 1 month is capable of the only interpretation that the order of termination can be upheld if the requisite amount, in terms of the rule, was paid into the hands of the employee or made available to him at the time when he was served with the order. It has also been observed by the Supreme Court that the proviso does not lend itself to the interpretation that the termination of service becomes effective as soon as the order is served on the Government servant. The operative words of the proviso are "services of such Government servant may be terminated forthwith by payment". Therefore, to be effective the determination of service is to be made simultaneously with payment to the employee of whatever is due to him. These apart, Mr. The operative words of the proviso are "services of such Government servant may be terminated forthwith by payment". Therefore, to be effective the determination of service is to be made simultaneously with payment to the employee of whatever is due to him. These apart, Mr. Mukherjee relied on the determination of the Supreme Court in the case of K. Narsimyya v. S.C. Sing Gouda A.I.R. 1966 S.C. 330. In that case the provision of Mysore Town municipalities Act and more particularly section 27 (3), which require giving of notice to an employee, came up for consideration and the word "giving" has been construed to be anything as ordinarily understood in the English language and is not complete unless it is reached the hands of the person to whom it: is to be given. It has also been observed by the Supreme Court that in the eye of law however, "giving" him is complete in meaning matters when it has been offered to a person arid not accepted by him. It has been observed, further that tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refused to accept it. Mr. Mukherjee, lastly relied on the determination of this Court in the case of Narendra Nath Basu v. Union of India and Ors. 1977 Lab. I.C. 425, where this Court had occasion to construe rules 620 (i), 620 (ii) of the Railway Pension Rules, 1950. The question arose in that case as to whether 3 months notice as mentioned in Rules 620 (i) and (ii) as referred to above could be given or should follow after an order for rectification is passed by the authority and it was observed that the order as made, was bad and inoperative as the payment was not made simultaneously. The said determination has been modified by the division Bench of this Court in the case of Union of India and Ors. v. Narendra Nath Basu, 1976 Lab. I.C. 1601, and or. consideration of the Rules and more particularly Rule 620 (ii) it has been observed that the impugned order was "jegal and valid but it had not taken effect as admittedly the respondents has not paid the employee concerned, his pay and allowances for 3 months in lieu of notice. v. Narendra Nath Basu, 1976 Lab. I.C. 1601, and or. consideration of the Rules and more particularly Rule 620 (ii) it has been observed that the impugned order was "jegal and valid but it had not taken effect as admittedly the respondents has not paid the employee concerned, his pay and allowances for 3 months in lieu of notice. As such Their Lordships in the Division Bench, have observed that the respondents employee could not be retired from service. Their Lordships have further observed that the impugned order in that case would be effective and the respondent could retired him from services, the moment the payment would be tendered with 3 months pay and allowances. 6. MR. Sarker, appearing for the answering Respondents placed the languages of section 3 (1) of the said 1976 Act which speaks of 'giving' three months notice, the terms of section 45 (1) of the Punjab Municipal Act as construed in the case of Ram Nath v. The State of Punjab (supra) and which has used the word "entitled", the terms of Rules 620 (ii) as interpreted in the case of Union of India v. N. N. Bose (supra) and the language whereof is "shall give", section 27 (3) of the Mysore Town Municipalities Act, which again has used the word "giving" and as has been construed in the case of K. Narasimhia v. H. C. Singvi Gowda and Ors. (supra) and those of Rule 5 (1) of the Central Civil Services (Temporary Services) Rule 1965, which has issued the word "forthwith" and has been construed in the case of Senior Superintendent, R. M. S. Cochin and Anr. v. K. V. Gopinath (supra) and submitted that in view of the difference between the catch words for necessary entitlement in those connected provisions and that of the proceedings as involved in this case, which is "by serving three months" notice, excepting the one in the case of K. Narasimhia v. H. C. Singvi Gowda (supra) those determinations would be of no avail or any assistance to the petitioner and in fact the terms as used in section 3 (1) of the said 1976 Act, would neither require to pay for three months wages "forthwith" nor would the same come within the purview of the terms "shall give' or would mean entitlement of such pay by the employee. He submitted that in view of the specific terms used, the employees concerned in those statutes, which were construed by the determinations as indicated above, could have claimed three months wages either prior to the order or simultaneously with the same and as a condition precedent. But that would not be the position in the instant case, and in view of the terms of section 3 (1) of the said 1976 Act, if three months notice is given, even at any stage or after the order in question, there would be due and substantial compliance. He, in fact submitted that even no simultaneous or immediate payment of the three months wages is contemplated under the said provisions. He of course mentioned that although simultaneous or immediate payment was not required, yet the Respondents duly paid or tendered the wages due to the petitioner for three months along with the order under challenge. But the petitioner has not accepted the same, on grounds, which are not appropriate and tenable. It is an admitted fact that the amount of three months wages, which was tendered to the petitioner was calculated without taking into account his special pay, which was stated to be withheld and as such the petitioner has contended that there was no due tender of his three months wages, which as submitted by him was required to be tendered at once or along with the order, in terms of the mandatory provisions of the statute. That the compliance with the language or terms of section 3 (1) of the said 1976 Act is mandatory, cannot be doubted or in dispute. Mr. sarker of course submitted that in the matter of tender of 3 months wages in the instant case there was at least substantial compliance with the requirements of the statute and as such the impugned order cannot be set aside on the grounds as alleged and rather the same should be found and held to be valid and proper It is true that the language of section 3 (1) of the said 1976 Act is "by giving" the employee three months' wages and there is no apparent element of must, which is there in the other statute as mentioned hereinbefore and as construed in the determinations as cited at the Bar. But if we construe those words strictly and consider them with the attending circumstances, there would be no other way out but to hold that due payment or tender of three months wages, along with the order was required. Otherwise and if Mr. Sarker is correct in his submissions, that such payment may be made even at a later day, without knowing when such payment would be made, the situation would become impossible, because in terms of the determinations of this Court in the case of Union of India and Ors. v. Narendra Nath Bose (supra), even if the order is valid and legal, the same cannot take effect so long the necessary payment of three months wages is made in him of notice and so long such payment is made, the employee concerned cannot be retired. Thus when steps have been stated to have been taken to pay the necessary three months wages to the petitioner in this case the question would be whether he was duly paid his wages. Such payment of wages must be calculated in terms of the actual wages drawn by the petitioner which would include his special pay as granted and on being challenged has been determined to be receivable by him the petitioner by the order of this Court as referred to hereinbefore. Since wages would include the special pay of the petitioner, so admittedly there was to valid tender or offer or payment of three months wages as required by the section, as admittedly, such wages was calculated without taking into account the petitioners' special pay and furthermore the action to with-hold such special pay, in view of the categorical determinations by this Court, was improper and un authorised. The tender or offer of three months wages would mean and include the special pay of the petitioner and that not having been done, there was no due or appropriate tender at all. Wrong or improper calculation, in my view, would not entitle the Respondents to contend that they have made due payment and such payment of lesser amount, on such or any wrong or improper calculation, would mean no proper or due payment of three months wages and the-theory of substantial compliance, in the facts of the case and as argued by Mr. Sarker, would have no application. Sarker, would have no application. Since the special pay of the petitioner has not admittedly been taken into consideration so there was or has been no due compliance with the requirements of section 3 (1) of the said 1967 Act, read along with the other provisions, including the definition of personal pay as referred to hereinbefore. So the impugned order was a nullity on the face of the same and the records and as such it must be observed that the petitioner has not been duly superannuated. The order as made, would have been perfectly legal and valid, of the three months wages, on the basis of calculation as referred to hereinbefore and not on the basis as calculated, was tendered or given. 7. THE above being the position, the petitioner's service should be deemed to have not been duly superannuated and as such the Rule is made absolute. There will be no order as to costs. 8. I must have it on record also that during the pendency of the Rule, the petitioner has, in the usual course and taking into account the actual age of retirement of municipal employees of his category, retired with effect from 17th march 1978. I must also keep it on record that the allegation of malafide have not been duly rebutted on affidavit by proper persons.