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2000 DIGILAW 140 (GAU)

Union of India v. Sadananda Sen

2000-04-01

BRIJESH KUMAR, D.N.CHOWDHURY

body2000
D. N. Chowdhury, J.-This writ application is directed against and arises out of a judgment and order dated 16.6.98, passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal), Guwahati Bench in Original Application No.69 of 1991 (hereinafter referred to as the OA), whereby the order of compulsory retirement that was passed against the applicant/respondent, Sadananda Sen, on 7.12.88 issued by the Deputy Chief Accounts Officer (Traffic) was set aside. The facts leading to issuance of the aforesaid order are as follows. The respondent/applicant, at the relevant time was working as Accounts Assistant in the North East Frontier Railway and posted at New Jalpaiguri. By order under No.AD/COM/Review/Service/policy dated 7.12.88, the respondent/applicant was compulsorily retired from service. The respondent submitted two representations, one on 22.6.89 addressed to the Financial Adviser and Chief Accounts Officer, NF Railway, Maligaon and the other one on 16.2.90 addressed to the General Manager, NF Railway, Maligaon. Failing to get appropriate remedy, the respondent applicant presented an application under section 19 of the Administrative Tribunal Act, 1988 in the Central Administrative Tribunal at Guwahati on 30.4.1991, challenging the order of his compulsory retirement dated 7.12.88, as illegal and without jurisdiction. The Railway authorities (petitioners herein) contested the application filed before the Tribunal and submitted their written statement denying and disputing the claim of the respondent/applicant. The applicant filed a rejoinder some time in 1997 wherein it was stated that at the time of presenting the application under section 19 of the Administrative Tribunal Act, he was not aware about the period of his qualifying service. That after presentation of the said application, the respondent/applicant came across a letter under number PNO/AD/Con/D&A/46(SS) dated 24.4.96 from the Financial Adviser and Chief Accounts Officer, NF Railway Maligaon, which contained the information that the applicant had only 2-1/2 years of qualifying service for pension. The learned Tribunal, upon considering the materials on record and on hearing the parties, allowed the application and set aside the order of compulsory retirement dated 7.12.88, The learned Tribunal held that though the impugned order of compulsory retirement was passed under clause (h) of Rule 2046 of the Indian Railway Establishment Code, the said rule was no longer in existence/ force on the date of passing of the impugned order and that a new rule had come into force with effect from March, 1988, viz. Rule 1803 of the Indian Railway. Rule 1803 of the Indian Railway. Establishment Code, Vol. n, Sixth Edition 1987, and under the said rule, a person can be retired from service at any time after completion of thirty years of service qualifying for pension. The learned Tribunal relying upon an office note dated 16.3.98 issued by the Assistant Accounts Officer, held that the respondent/applicant did not complete thirty years of service qualifying him for pension and, therefore, the condition precedent for invoking the power of compulsory retirement was absent. The learned Tribunal also held that the impugned order of compulsory retirement suffered from the vice of non-application of mind on the ground that the impugned action was taken by the Railway authorities under Rule 2046 (old) which was non-existent on the date of passing of the impugned order. Hence the writ petition assailing the order of the learned Tribunal passed on 16.6.98 in OA No.69 of l991. 2. Mr. BK Sharma, learned senior counsel appearing on behalf of the Railway petitioners, assailed the order of the Tribunal both on facts as well as in law. Mr. Sharma submitted that the application presented before the Tribunal did not contain any such plea of whatsoever form, to the effect that on the date of passing of the impugned order of compulsory retirement, the Railway employee concerned did not complete thirty years of qualifying service. The OA was admitted on 2.5.1991 and the same was dismissed for default on 16.1.1995 by a reasoned order. After dismissal of the OA, the applicant/respondent made correspondences with the Railway authorities for settlement of his retiral benefits. By his letter dated 18.9.95 addressed to the Railway authority, the applicant/ respondent gave necessary certificate towards acceptance of compulsory retirement and prayed for final settlement of the final dues. The OA was thereafter restored to file by an order dated 26.2.97 and the same was again dismissed for default on 1.8.97. The application was again restored on 17.3.98. By his letter dated 18.9.95 addressed to the Railway authority, the applicant/ respondent gave necessary certificate towards acceptance of compulsory retirement and prayed for final settlement of the final dues. The OA was thereafter restored to file by an order dated 26.2.97 and the same was again dismissed for default on 1.8.97. The application was again restored on 17.3.98. After restoration of the application, the applicant/respondent filed a rejoinder to the written statement filed by the Railway/respondents (petitioners herein) enclosing therewith a copy of the communication dated 24.4.96, issued by the Financial Adviser and Chief Accounts Officer, Maligaon, stating inter alia that on review of the personal' case and the settlement papers of the applicant/respondent, it was found that the qualifying service of the applicant for pension was to the extent of twenty eight and a half years and not 32 years as claimed by the applicant/respondent. The Railway authority/petitioners in this writ petition, has stated that no amendment was brought to the original application and all the aforesaid facts were brought by way of a rejoinder and after eight years of his compulsory retirement, the applicant/respondent raised the issue of qualifying period of service for pension. 3. Mr. BK Sharma, the learned senior counsel for the petitioners, submitted that the letter dated 24.4.96, issued from the office of the Financial Adviser and Chief Accounts Officer (FA and CAO in short), NF Railway (petitioner No.2), did not in any way affect the order of compulsory retirement of the applicant/ respondent. That the Railway authorities passed the impugned order on consideration of all the aspects of the matter on being satisfied that the applicant/ respondent on the date of passing of the impugned order of compulsory retirement, completed thirty years of service qualifying him for pension. The aforesaid position could not have been altered or affected by a letter written by the Assistant Accounts Officer, New Jalpaiguri. Referring to the materials on record, Mr. Sharma, the learned counsel for the petitioners, submitted that the subsequent note clarified the position and the learned Tribunal fell into error in overlooking the real aspect of the matter. The learned counsel appearing on behalf of the petitioner/Railway submitted that assuming there was any wrong recording of a provision of rules in the impugned order, ipso facto it cannot invalidate an order passed by the authority within its competence. The learned counsel appearing on behalf of the petitioner/Railway submitted that assuming there was any wrong recording of a provision of rules in the impugned order, ipso facto it cannot invalidate an order passed by the authority within its competence. The learned senior counsel lastly submitted that under the circumstances, the learned Tribunal fell into error in setting aside an lawful order. 4. Mr. GK Bhattacharyya, learned senior counsel appearing on behalf of the respondent/applicant, submitted that the learned Tribunal considered all the aspects of the matter and thereafter on evaluation of the facts, reached a conclusion that the respondent/applicant on the date of passing of the impugned order of compulsory retirement, did not complete thirty years of service qualifying for pension. The learned Tribunal duly considered the contentions of the parties including the plea raised by the petitioners respondents and upon considering the respective argument of the parties as well as the materials on record, came to a definite conclusion that the respondent applicant (employee) did not complete thirty years of service qualifying for pension. The finding of fact reached by the learned Tribunal is binding and conclusive in the absence of perversity, submitted the learned counsel for the respondent/applicant. Mr. Bhattacharyya, the learned senior counsel for the respondent/applicant, submitted that on the own. showing of the writ petitioners (Railway authorities), the respondent/applicant did not complete thirty years of service even after the impugned order as was indicated by the communication that was sent by the Assistant Accounts Officer. The learned senior counsel appearing on behalf of the respondent/applicant further submitted that it is not a case of wrong quoting of a section. The learned counsel indicated that the learned Tribunal set aside the impugned order of compulsory retirement also on the ground of non-application of mind. The Railway authorities in a most mechanical fashion, resorted to the power of compulsory retirement pertaining to the career and livelihood of its employee. The authority in these circumstances, ought to have acted with all seriousness on applying its mind to the relevant facts as well as to law. Admittedly, the rule referred to by the Railway authorities in prematurely determining the services of the respondent/applicant by way of compulsory retirement, was not in existence, submitted Mr. Bhattacharyya, the learned senior counsel. The authority in these circumstances, ought to have acted with all seriousness on applying its mind to the relevant facts as well as to law. Admittedly, the rule referred to by the Railway authorities in prematurely determining the services of the respondent/applicant by way of compulsory retirement, was not in existence, submitted Mr. Bhattacharyya, the learned senior counsel. The second ground, in support of the conclusion of the learned Tribunal for allowing the appeal of the applicant relating to the description of the law in the impugned order, need not detain us. An error in mentioning/describing the source of a power will not ipso facto render an order passed by the competent authority within its competence, invalid. The real test is not the form of the order in which it is issued, but the competence of the authority to pass the order. An order will not become invalid simply because the order was passed under the wrong provision of the law. If the power is otherwise established, the fact that the source of the power was/is wrongly described, it will not by itself annul/invalidate the order (Refer : P. Balakotiah vs. Union of India, AIR 1958 SC 232 ; Afzal Ullah vs. State of UP, AIR 1964 SC 264 ; and HL Mehra vs. Union of India, AIR 1974 SC 1281 ). The power and competence of the Railway authority to pass an order of compulsory retirement is not under challenge. What was under challenge was the legality and competence of the order. The power to determine the services of a Railway employee by way of an order of compulsory retirement is/was never in dispute. Rule 1803 of the Indian Railway Establishment Code (IREC), 1987 Edn, was very much in existence on the date of passing of the impugned order, which provided the authority concerned the absolute right to retire a Railway servant governed by any Pension Rule after he has completed thirty years of qualifying service for pension and after giving notice in writing in that behalf. The right to retire a Railway servant was never under challenge, nor was it ever challenged that the respondent/applicant was not governed by the Pension Rules of the Railway Services. In the circumstance, mere wrong mentioning of the provision of the law cannot be held to be fatal. 5. The right to retire a Railway servant was never under challenge, nor was it ever challenged that the respondent/applicant was not governed by the Pension Rules of the Railway Services. In the circumstance, mere wrong mentioning of the provision of the law cannot be held to be fatal. 5. The impugned order of compulsory retirement dated 7.12.88, referred to clause (h) to Rule 2046 of IRE Code as the source of power. Rule 2046 corresponds to FR 56. The relevant provisions contained in clause (h) to Rule 2046 of the IRE Code (old) reads as follows : "2046. (FR 56) - (a) Except as otherwise provided in this rule, every Railway servant shall retire on the day he attains the age of fifty eight years. (h) Notwithstanding anything contained in this rule, the appointing 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 Railway servant 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 Class I or Class II service or post and had entered Govt service before attaining the age of thirty five years, after he has attained the age of fifty years, (ii) in any other case after he has attained the age of fifty-five years." At the time of passing of the impugned order of compulsory retirement, a new set of rules came into force pertaining to retirement as mentioned in Chapter XVIII of the IRE Code, Vol. II, Sixth Edition 1987. Rule 1801 speaks of attainment of the normal age of superannuation at fifty eight years. Under Rule 1802, the Railway authority is conferred with the absolute right to retire any Railway servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice on conditions contained in (a) (i) or (a) (ii) of the said provision. Under clause (b) of Rule 1802, any Railway servant as mentioned thereunder, may retire from service by giving notice as indicated therein. Rule 1603 contains the provision for retirement by notice from either sides on the conditions prescribed thereunder, which are produced below : " 1803. Under clause (b) of Rule 1802, any Railway servant as mentioned thereunder, may retire from service by giving notice as indicated therein. Rule 1603 contains the provision for retirement by notice from either sides on the conditions prescribed thereunder, which are produced below : " 1803. (a) Notwithstanding anything contained in these rules, or any other rule or order for the time being in force, the appointing authority shall, if it is of the opinion that it is in public interest to do so, have the absolute right to retire a Railway servant governed by any Pension Rules after he has completed thirty years service qualifying for pension after giving a notice in writing in this behalf to the Railway servant at least three months before the date on which he is required to retire, or three months pay and allowances in lieu of such notice. (b) A Railway servant who is governed by any of the Pension Rules, may retire from service at any time after completion of 30 years of service qualifying for pension, after giving notice in writing to the appropriate authority, at least three months before the intended date of retirement: Provided that it shall be open to the appropriate authority to withhold permission to a Railway servant under suspension, who seeks to retire under this clause. Note: Both in the cases falling under Rule 1803 (a) and (b), orders permitting/requiring a Railway servant to retire after completing 30 years' qualifying service should, as a rule, not be issued unit/after the fact, that the Railway servant has indeed completed the qualifying service of thirty years, has been verified in consultation with the Accounts Officer." As per clause (a) of Rule 1803, a discretion is conferred on the appointing authority on formation of an opinion, to retire a Railway servant governed by the .Pension Rules, if he or she has completed thirty years' service qualifying for pension after giving notice in writing in that behalf to the Railway servant at least three months before the date on which he is to retire or three months' pay and allowances in lieu of such notice, if the appointing authority is of the opinion that it is in the public interest to do so. An absolute right is conferred on the authority to cause retirement of any such employee on fulfillment of the conditions prescribed. An absolute right is conferred on the authority to cause retirement of any such employee on fulfillment of the conditions prescribed. The rule says that the appointing authority has the absolute right to retire a Railway servant if it is in the public interest to do so. The power can be exercised subject to the conditions indicated in the rule. One such condition is that the appointing authority has to form an opinion that it is in the public interest to do so. If the authority honestly reaches such an opinion, the correctness of the opinion cannot be assailed before a Court/Tribunal. It is, however, always open to the aggrieved party to state and contend that the requisite opinion has not been formed or that the decision to retire is based on irrelevant considerations/grounds, or that the same suffers from the vice of arbitrariness. 6. The impugned order of compulsory retirement dated 7.12.88, was not attacked on the ground of malafide. Nor was it assailed on the ground that the requisite/required opinion that it was in the public interest to do so, was not formed, It was assailed only on the ground that the employee on the date of the impugned order, did not complete thirty years of service qualifying for pension and on the ground that the said order was passed arbitrarily without application of mind. In support of the first ground, the respondent/applicant referred to a communication sent from the office of the Financial Adviser and Chief Accounts Officer, dated 24.4.96, responding to the appeal filed by the applicant on 4.3.96, for release of his pensionary benefits. The full extract of the aforesaid communication is reproduced below: "On receipt of your appeal through GM/NF Rly under reference, your personal case along with settlement paper has been reviewed. It appears from the review that your qualifying service for pension comes to 28½ years only and not 32 years as pointed out by you due to deduction of non-qualifying service. The proportionate pension comes to Rs. 402/- only. Since 90% pension was sanctioned as provisional pension, the PPO was issued for Rs.362/- only. But in that case minimum pension i.e. Rs.375/- should have been sanctioned as provisional pension by the competent authority. However, necessary action is being taken by AAO/NJP to revise your pension from Rs.362/- to Rs.375/- and payment of difference of the two i.e. Rs. Since 90% pension was sanctioned as provisional pension, the PPO was issued for Rs.362/- only. But in that case minimum pension i.e. Rs.375/- should have been sanctioned as provisional pension by the competent authority. However, necessary action is being taken by AAO/NJP to revise your pension from Rs.362/- to Rs.375/- and payment of difference of the two i.e. Rs. 13/-)PM (Rs.375-62/- = 13/-) at the earliest." The learned Tribunal in its judgment, referred to said communication dated 24.4.96 and held that there was no material before the competent authority on the date of passing of the impugned order, that the respondent/applicant had completed thirty years of service qualifying for pension. The Railway authorities produced the records in support of their case. Pointing to the records, the learned counsel appearing on behalf of the Railway authorities, submitted that the applicant/respondent remained absent from duty for 1409 days while a period of 588 days was treated as leave on medical ground, the period of 821 days was treated as 'dies non'. If the period of 821 days is excluded from the period of the total service rendered by the applicant, the actual service of the applicant comes to thirty years one month and eleven days. The learned Tribunal referred to the note dated 17.4.96 that was given by the Deputy Chief Accounts Officer whereby it was suggested that the entire period of 1409 days may be treated as 'dies non'. The learned Tribunal inferred" from the aforesaid note that till 17.4.96, the authorities concerned did not grant medical leave for 588 days. The learned Tribunal also referred to a note dated 16.3.98, issued by .the Assistant Accounts Officer. The above note was extensively quoted by the learned Tribunal in its judgment, which reads as follows : "For arriving at the correct position the records have been called with a view to linking the broken period. While pointing out some mistakes towards calculation of pension the then AAO/AD had committed another mistake towards calculation of pension. In N/17 para 3 (ii), the 32 years 3 months and 3 days has been altered by deducting 3 years 10 months and 14 days (i.e. 1409 days). For the purpose of linking the period of 'dies-non' only the period of unauthorised absence should be taken into consideration. Examination of the P/case shows that there are broken period which are covered by medical certificates. For the purpose of linking the period of 'dies-non' only the period of unauthorised absence should be taken into consideration. Examination of the P/case shows that there are broken period which are covered by medical certificates. A chart showing such periods are placed at SN side showing reference to the medical certificates. The total is 588 days. To arrive at the correct unauthorised absence for 'dies-non' that period should be deducted from total 1409 days (i.e. 1409-588-821 days should be treated as 'dies- non' and loss of pension should be for this period only (i.e. 2 years 3 months and 1 day). He should, therefore, get pension for 32 years, 3 months, and 3 days (-) 2 years 3 months and 1 day.= 30 years, 0 month and 2 days = 30 years for calculating pension for qualifying service. In view of the above position, it would not be correct to pay pension for 28½ years as calculated earlier (N/l7). This may also invite complaints from the pensioner and it will be very difficult to justify payment of the pension. As the letter dated 24.4.96 was issued immediately after the order of FA and CAO on 23.4.96 and in view of the top-priority, the details of the 'dies-non' was not probably calculated meticulously. However, the pension is still provisional. If approved, we may advice AAO/NJP to take issue of revised PPO taking the correct period as explained above. The pensioner should also be informed accordingly. AAAO/ NJP should also call for the explanation as ordered by FA & CAO(N/18). Submitted for perusal." The learned Tribunal referring to the said note, observed that the authority till then did not grant medical leave to the applicant/respondent. May be that the leave was granted on a later date, but that could not cure the invalidity of the order since on the date of the order, on the own showing of the Railway authority, the respondent/applicant did not complete thirty years of qualifying service. 7. We find it difficult to reach a conclusion that the respondent/applicant did not complete thirty years of qualifying service as on 7.12.88 on the basis of the above quoted letter dated 24.4.96 as well as the above stated note dated 17.4.96. We have already extensively quoted the communication dated 24.4.96 issued for the FA and CAO which was sent to the respondent/applicant. We have already extensively quoted the communication dated 24.4.96 issued for the FA and CAO which was sent to the respondent/applicant. The said letter was sent to the respondent/applicant while the authority concerned was dealing/attending to his appeal dated 4.3.96 that was made before the Hon'ble Minister of Personnel Welfare, Govt of India, that wag sent to the Accounts Section through the General Manager, North East Frontier Railway. By that letter, the Accounts Section intimated their own calculation. The note referred to by the learned Tribunal dated 16.3.98, also on its own shows that the aforesaid communication dated 24th April, 1996 was not the correct reflection of the state of affairs. The afore mentioned note clearly pointed out that the said letter dated 24th April, 1996 was issued immediately after the order of the FA and CAO on 23.4.96 and in view of the top priority, the details of the 'dies-non' was not probably calculated correctly. The note also indicated that the Assistant Accounts Officer, New Jalpaiguri should also be called for an explanation, as ordered by the FA and CAO. In these circumstances, it cannot be said that the respondent/applicant did not complete thirty years of service qualifying for pension. Compulsory retirement is not punitive in nature. It only embodies one of the procedures of retirement. Numerous considerations may weigh on the appropriate authority in exercising the power conferred under the Rules. Compulsory retirement does not involve any civil consequences. The employee does not lose any of the rights that he acquired before retirement. For the reasons stated above, we are unable to agree with the conclusion reached by the learned Tribunal that the impugned order of compulsory retirement dated 7.12.88 issued by the competent authority of the Railway is illegal and without jurisdiction. In the circumstances, we allow the writ petition and set aside the judgment order dated 16.6.98, passed in OA No. 69 of 1991 by the learned Tribunal, and consequently dismiss the original application. However, in the facts and circumstances of the case, we make no order as to costs.