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1979 DIGILAW 403 (CAL)

Krishna Komal Ghosh v. Union of India

1979-12-12

B.C.RAY, BANERJEE

body1979
Judgment Banerjee J: 1. This appeal is as the instance of the petitioner who was at the relevant time Superintendent of Central Exercise and a class II Officer. He was such Class II Officer from 23.2.67, and at the relevant time was posted in the district of Malda under the control of Berhampore Division. On 31.10.75, the order of compulsory retirement dated 17.10.75 was served on the appellant and the said order was issued by the Collector in exercise of power conferred under Rule 56(j) of the Fundamental Rules. In lieu of three months notice he was directed to be paid full pay and allowances as is admissible under the Rules. A sum of Rs. 3086.10 (rupees three thousand eighty six and ten paise) was stated to be three months gay and allowances due to the petitioner appellant and according to the appellant however the pay and allowances come to Rs. 3386.10 (rupees three thousand three hundred and eighty six and ten paise). The petitioner had to hand over charges and sign a receipt, according to him under Correction of pay and allowance of three month amounting to Rs. 3086.10 (rupees three thousand eighty six and ten paise). 2. Being aggrieved by the said order of compulsory retirement the petitioner moved this Court and obtained the Rule which was discharged by the Hon'ble single Judge by the order dated 16.2.78. holding Inter alia that the payment of the full pay and allowances of the petitioner does not vitiate the order of compulsory retirement and further directed by the said order that the balance of Rs 300.00 (rupees three hundred) should be paid by the respondent within a reasonable time. . 3. Being aggrieved by the said order of discharge of the Rule the petitioner preferred this present appeal under Clause 15 of the Letters Patent. 4. Mr. Chakrabarty. appearing on behalf of the appellant. contended that the learned Judge was wrong in holding that nonpayment of the pay and allowances of three months in lieu of notice as it is contained under Rule 56(j) of the Fundamentals Rules does not vitiate the order of compulsory retirement. It is argued by Mr. Chakravarti that the condition procedure for the exercise of power under Rule 56(j) is that it must be (i) in the public interest (ii) a notice of three months pay and allowanced in lieu of notice then of. Mr. It is argued by Mr. Chakravarti that the condition procedure for the exercise of power under Rule 56(j) is that it must be (i) in the public interest (ii) a notice of three months pay and allowanced in lieu of notice then of. Mr. Chakravarti before us argued on the second branch only and did not make any argument about whether the order was made in the public interest. 5 Mr. D.K Sen, appearing on behalf of the respondent contended that there is no doubt that in making an order of compulsory retirement under Rule 56(J) the Government is to either give three months notice or in lieu thereof give the officer who has been retired compulsory, three months pay and allowances. Mr. Sen's argument is that in the facts of this case three months pay and allowances were given. According to him, three months pay and allowances come to Rs. 3086.10 (Rupees three thousand and eighty six and ten paise) and in support of this contention of Mr. Sen cantended that it is the petitioner's own case in his expenditure statement that he is entitled to full pay and allowances at the rate of Rs. 3086.10 (Rupees three thousand eighty six and ten paise). In our opinion however from the statement as found in annexure K-10 of the petition, it is clear that the petitioner pay and allowances come to Rs. 1128.10 (Rupees one thousands one hundred and twenty eight and ten paise). As the petitioner appellant being retired compulsorily under Rule 56(j) the respondent, in our opinion, must along with the order of compulsory retirement pay the officer three months' pay and allowances as is admissible to him on the date when the order of compulsory retirement is made. 6. Mr. Sen then contended on the basis of the Supreme Court judgment reported in AIR 1975 SC 1116 that the simultaneous payment as is necessary in the Central Service Rule should not be imported and it may be that the said pay and allowances be given afterwards. In our opinion, this cannot be done. 6. Mr. Sen then contended on the basis of the Supreme Court judgment reported in AIR 1975 SC 1116 that the simultaneous payment as is necessary in the Central Service Rule should not be imported and it may be that the said pay and allowances be given afterwards. In our opinion, this cannot be done. The officer is entitled to three months' notice or in lieu there of three months' pay and allowances at admissible under the Rule when the order in our opinion is passed This question came up for consideration by this Court in FMA 94 of 1975 (State of West Bengal v. N.N. Banerjee) on the 4th November. 1976 by the Division Bench of this Court were their lordships were considering the same question arising out of Rule 77(aa) of the West Bengal Service Rules, Part 1. After considering their lordships' held as follow. – A part from this it appears from the record that the full allowances and the pay were not rendered to the respondent with tile order of compulsory retirement, The learned Judge has noted that is more or less an admitted position and nothing has been shown to us that this conclusion of the learned judge is erroneous. That was bad." In the present case also in our opinion on fact it is clear that the petitioner is entitled to pay and allowances for three months which will be at least Rs. 300.00 (Rupees three hundred) more than which was paid. In our view therefore as three months' pay and allowances have not been paid as is admissible on the date when he was compulsory retired Rule 56(j) is patently violated. 7. In the circumstances therefore the order of compulsory retirement passed against, the petitioner appellant mast be set aside and the order of the Hon'ble single Judge holding that non-payment will not vitiate tile order cannot be sustained. 8. It is stated before us that in the meantime during the pendency of Rule and the appeal the petitioner appellant retired on superannuation. If that is so, the petitioner appellant will be entitled to all the pay and allowances from the date when he was compulsorily retired till the date of superannuation as if he was in service. 9. The appeal is allowed. There will be no order as to costs in this appeal. If that is so, the petitioner appellant will be entitled to all the pay and allowances from the date when he was compulsorily retired till the date of superannuation as if he was in service. 9. The appeal is allowed. There will be no order as to costs in this appeal. 10 There will be stay of the operation of the order for six weeks from this date. B.C. Ray, J: I agree. Appeal allowed.