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Rajasthan High Court · body

2000 DIGILAW 409 (RAJ)

Surendra Kumar Verma v. Rugeit

2000-04-04

SHIV KUMAR SHARMA

body2000
JUDGMENT 1. - The petitioners, in the eye of the respondent- educational institution were 'dead-wood' and therefore the institution chopped off them in the public interest but the petitioners say that they are 'sandal wood' and the institution had no authority to use axe on them. 2. The question that falls for consideration in the instant writ petition is whether the Non-Government Education Institution (for short NGEI) possesses right to compulsorily retire its employee under third proviso of Section 16(1) of the Rajasthan Non-Government Educational Institutions Act, 1989 (for short 1989 Act). 3. Though the question posed is of general application yet the facts of the instant petitions have to be kept in sharp focus, therefore before embarking upon the consideration of the legal question, these facts require to be noticed in some detail at the very threshold. 4. The petitioners had entered in the services of the respondents No. 2 and 3 as teachers on August 6, 1964 and August 28, 1970 respectively. They taught the students of the respondent-institution in various capacities and when they were performing duties as lecturers they received orders dated June 27, 1994 issued by the respondent No. 3 whereby the petitioners were informed that a decision was taken by the Managing Committee to retire them compulsorily in the interest of institution with immediate effect as they have completed 50 years. Cheques of three months salary in lieu of notice were attached with the orders. The petitioner preferred appeals against the said orders before the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short the Tribunal) but they were dismissed by a common order dated May 30, 1995. In the instant petitions the petitioners seek to quash the aforesaid orders. 5. Respondent No. 3 in the reply raised preliminary objections in respect of maintainability of the writ petition. It was averred that petitions be dismissed on the ground of gross delay of one year, misjoinder of party, withholding of necessary documents. It was further pleaded that performance and efficiency of the petitioners reflected in the results of the institution was so alarming that it caused worry in the minds of the guardians of the students and the management. It was averred that petitions be dismissed on the ground of gross delay of one year, misjoinder of party, withholding of necessary documents. It was further pleaded that performance and efficiency of the petitioners reflected in the results of the institution was so alarming that it caused worry in the minds of the guardians of the students and the management. It resulted the ruining of the career of the students and tarnished the image of the institution in the eyes of general public therefore there was no alternative except to retire the petitioners compulsorily under Section 16 of the 1989 Act in the interest of the institution. Giving details of the necessary facts the institution made attempt to justify its action and stated that the Managing Committee thoroughly and objectively considered all relevant facts and it was not necessary to provide opportunity to the petitioners before taking decision of their compulsory retirement. It was also prayed that the cases be heard alongwith writ petition No. 4364/94. 6. I have pondered over the rival submissions and carefully weighed the material on record. Learned Counsel appearing for the parties have placed reliance on various judicial pronouncements which I shall deal in the later part of this judgment. Prayer to hear cases along with writ petition No. 4364/94 was however declined. 7. I will now proceed to examine the preliminary objections raised on behalf of the respondent No. 3. A look at the petitions demonstrates that they were filed in the month of September, 1995 against the order dated May 30, 1995 of the learned Tribunal. Delay of about four months in filing the writ petition cannot be termed as gross delay and it is not fatal. The objection regarding misjoinder of party also does not appear to be sound. If Director of Primary and Secondary Education has been impleaded in the writ petition, it hardly affects the rights of respondent No. 3. Now it is to be seen whether writ of certiorari is maintainable if record of the Tribunal is not provided by the petitioner. The objection regarding misjoinder of party also does not appear to be sound. If Director of Primary and Secondary Education has been impleaded in the writ petition, it hardly affects the rights of respondent No. 3. Now it is to be seen whether writ of certiorari is maintainable if record of the Tribunal is not provided by the petitioner. The whole object of a writ of certiorari is to bring up the record of the inferior court or other quasi-judicial body for examination by the superior court so that the latter may be satisfied that the inferior court of the quasi-judicial body has not gone beyond its jurisdiction and exercised it within the limits fixed by law. Non-production of the records completely defeats the purpose for which such writs are issued. Their Lordships of the Supreme Court in Ghaio Mal and Sons v. The State of Delhi, AIR 1956 SC 65 dealing with a case of writ of certiorari indicated thus - "We must also point out that when a superior court issues a rule on an application for certiorari it is incumbent on inferior court or the quasi- judicial body to whom the rule is addressed to produce the entire records before the court along with its return." 8. The writ of certiorari has its origin in England in the King prerogative power of superintendence over the due observance of law by his officials and Tribunals. The writ of 'certiorari' is so named because it required that the king should be certified of "the proceedings be investigated in order to examine whether the jurisdiction of the inferior Tribunal was properly exercised or not". During the British days in our country the three chartered High Courts of Calcutta, Bombay and Madras were alone competent to issue writs and that too within specified limits and the power was not exercisable by the other High Courts.Lord Justice Morris in Rex v. Northumber Land Compensation Appellate Tribunal, 1952(1) KB 338 explained the essential features of 'certiorari' thus - "It is plain that 'certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up to order or decision for re- hearing of the issue raised in the proceedings. It does not lie in order to bring up to order or decision for re- hearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown." 9. In Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192 their Lordships of the Supreme Court had occasion to consider writ of certiorari. It was propounded that - "Such writs as are referred in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to the taken or the order to be made." (Emphasis supplied) 10. Hon'ble Gajendragadkar J. speaking for the three-Judge Bench of the Supreme Court in Shri Ambica Mills Co. v. S.B. Bhatt, AIR 1964 SC 1970 said - "In a sense it would be correct to say that an error of law which can be corrected by a writ of certiorari must be self evident, that is what is meant by saying it is an error apparent on the face of the record and from that point of view, the test that the error should be self evident and should not need an elaborate examination of the record." 11. In the instant petitions when the petitioners have sought directions in the nature of writ of certiorari, it was necessary for them to produce the record of the tribunal. In the event of non-production of record the purpose of issuance of writ of certiorari is defeated. But here the petitioner impleaded Tribunal as party and this court thought it proper to issue notice also to the Tribunal and respondent No. 3 has already filed all the documents with its reply. In the event of non-production of record the purpose of issuance of writ of certiorari is defeated. But here the petitioner impleaded Tribunal as party and this court thought it proper to issue notice also to the Tribunal and respondent No. 3 has already filed all the documents with its reply. Under these circumstances it is the tribunal that is required to produce the entire record alongwith its return and the writ petitions cannot be dismissed on the ground of non-production of record by the petitioners. 12. Before proceeding further it will be useful to take stock of the settled principles relating to compulsory retirement. Their Lordships of the Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer, 1992(2) SCC 299 : 1992(2) SCT 92 (SC) laid down the following five principles : (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking decision in the matter of course attaching more importance to record of and performance during the later years. (v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis of interference. (v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis of interference. It is thus evident that if bonafide opinion is formed in the public interest by the appropriate authority to weed out dead wood, inefficient corrupt and people of doubtful integrity by compulsorily retiring them from service the court would not interfere with the order. 13. At this juncture I deem it appropriate to examine whether NGEI has jurisdiction to compulsory retire its employee under proviso three of Section 16(1) of 1989 Act. 14. Section 16 of 1989 Acts reads thus : "16. Power of the State Government to regulate the terms and conditions of employment. - (1) The State Government may regulate the recruitment and conditions of service, including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline, of persons appointed as employee of aided institutions in the State : Provided that the rights and benefits accruing to an employee of an existing institution under the grant-in-aid rules in force at the commencement of this Act shall not be varied to the disadvantage of such employee : Provided further that every such employee shall be entitled to opt for such terms and conditions of service as were applicable to him immediately before the commencement of this Act : Provided also that irrespective of the age of retirement prescribed, action may be taken for compulsory retirement of such an employee after completion of 25 years of service or on attainment of the age of 50 years whichever is earlier, in accordance with the procedure as may be prescribed. (2) Every registered institution shall constitute a provident fund for the benefit of its employees in such manner, and subject to such conditions as may prescribed and contribute to such fund and pay interest on the deposited amount at such rate as may be prescribed from time to time." (Underlining is mine) 15. Before considering the arguments advanced in respect of third proviso of Section 16(1) it is necessary to advert to the scheme of 1989 Act. It is an Act to provide for better organisation and development of education in the NGEIs in the State of Rajasthan. Before considering the arguments advanced in respect of third proviso of Section 16(1) it is necessary to advert to the scheme of 1989 Act. It is an Act to provide for better organisation and development of education in the NGEIs in the State of Rajasthan. Section 43 gives power to the State Government to make rules for the purpose of carrying into effect the provisions of the Act. Such rules may provide all matters expressly required or allowed by the Act to be prescribed. Section 16 starts with the heading "Power of the State Government to regulate the terms and conditions of employment." As per sub-section (1) the State Government may regulate the age of retirement of employee of aided institutions in the State but according to third proviso appended with sub-section (1) action may be taken for compulsory retirement of such employee after completion of 25 years of service or on attainment of the age of 50 years whichever is earlier, in accordance with the procedure as may be prescribed. 16. Mr. Virendra Dangi, learned Counsel for the petitioners urged that section 16(1) provides power only to the State Government and none else. Power to compulsorily retire an employee can only be exercised in accordance with the procedure as may be prescribed by the State Government. Such procedure may be prescribed under Section 43 by framing the necessary rules. Where procedure to compulsorily retire an employee is not prescribed the NGEI cannot compulsorily retire its employee. According to Mr. Dangi, learned Counsel, the language of section 16 is clear, unambiguous and intelligible it should be construed in its ordinary sense. The word 'may' used in sub-section (1) of Section 16 in the light of the context is capable of meaning 'must' or 'shall' as discretion is conferred upon the State coupled with an obligation. The word 'may' in sub-section (1) which denotes discretion should be construed to mean a command. Reliance was placed on Baldev Singh v. State of Punjab, 1980(3) SLR 385, D.D. Joshi v. U.O.I., 1983(1) SLR 552, Dr. Ajay Pradhan v. State of M.P., 1988(4) SCC 514 , State of U.P. v. Jogendra Singh, AIR 1963 SC 1618 , Govind Rao v. State of M.P., AIR 1965 SC 1222 . 17. On the other hand, Mr. Reliance was placed on Baldev Singh v. State of Punjab, 1980(3) SLR 385, D.D. Joshi v. U.O.I., 1983(1) SLR 552, Dr. Ajay Pradhan v. State of M.P., 1988(4) SCC 514 , State of U.P. v. Jogendra Singh, AIR 1963 SC 1618 , Govind Rao v. State of M.P., AIR 1965 SC 1222 . 17. On the other hand, Mr. N.K. Maloo, learned Counsel for the respondent No. 3 canvassed that this court should not interfere with the impugned orders of compulsory retirement of the petitioners. Various judicial decisions in support of this contention were placed before me. It is not necessary for me to consider all those pronouncements as I have already taken the view that if bonafide opinion is formed in the public interest by the appropriate authority to weed out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service, the court would not interfere with the order. The only question that remains to be considered is whether respondent No. 3 is 'appropriate authority' competent to take decision in view of third proviso of section 16(1) of the 1989 Act ? 18. According to Mr. Maloo, learned Counsel the respondent No. 3 had jurisdiction to compulsorily retire the petitioners under the third proviso of section 16(1). Provisions contained in this section were read over before me many a time and attempt was made to establish that only a discretion was given to State Government by using the word 'may' in the section to regulate the terms and conditions of employment and if rules were not framed by the State Government it does not render the section inoperative. It was urged that nowhere the section prohibit the NGEI to compulsory retire its employee. Reliance was placed on Surinder Singh v. Central Government, 1987 RRR 100 : AIR 1986 SC 2166 , U.P.S.E. Board v. City Board Mussoorie, AIR 1985 SC 883 and Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare, 1999(8) SCC 99 : 1999(3) SCT 845 (SC) . 19. Their Lordships of the Supreme Court in Surinder Singh v. Central Government (supra) indicated that where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of powers conferred by the statute does not depend on the existence of Rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression 'subject to the Rules' only means in accordance with the rules if any. If rules are framed the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute." 20. In UPSE Board v. City Board Mussoorie (supra) Hon'ble Supreme Court held that framing of regulations cannot be a condition precedent for fixing the Grid Tariff. If particular section provides that no Grid Tariff can be fixed until regulations are made, if only means that Grid Tariff should be fixed in accordance with such regulations and nothing more. 21. Similar view was expressed by their Lordships of the Supreme Court in Nagpur Improvement Trust case (supra). It was held that according to the general principles of service jurisprudence, the executive instructions and administrative decisions would operate in the field in making the appointments/promotion, in absence of statutory Rules governing the service conditions of the employees. 22. It is settled canon on construction, said Full Bench of Punjab and Haryana High Court in Baldev Singh v. State of Punjab (supra), that words are not to be imported and interjected into statutory provisions when the framers themselves did not choose to place them there and an interpretation which tends to do that has to be avoided. Placing reliance on the ratio of Baldev Singh's case, Mr. Virendra Dangi, learned Counsel submitted with some vehemence that words of Rule 244(2) of the Rajasthan Service Rules (for short the RSR) cannot be interjected in section 16(1) of 1989 Act. 23. A look at the entire scheme of 1989 Act goes to show that the State Government controls NGEIs through 'competent authority' or Director of Education as defined under section 2(e) and (f). Management of a recognised institution may be taken over by the State Government in the public interest under Section 10. The State Government may regulate the terms and conditions of employment under Section 16(1). Management of a recognised institution may be taken over by the State Government in the public interest under Section 10. The State Government may regulate the terms and conditions of employment under Section 16(1). As per third proviso of section 16(1) an employee of NGEI may be compulsorily retired in accordance with the procedure as may be prescribed, after completion of 25 years of service or on attainment of the age of 50 years whichever is earlier. It nowhere provides that such employee may be retired forthwith and on such retirement the employee shall be entitled to claim three months' pay and allowances in lieu of notice. It also does not say about pensionary and other financial benefits after retirement. In my considered opinion that provision of compulsory retirement incorporated in the third proviso of Section 16(1) is incomplete provision and that is why the framers did add the words "in accordance with the procedure that may be prescribed". I agree with the submissions of Mr. Dangi learned Counsel that the word 'may' used in sub-section (1) of Section 16 denotes discretion and it should be construed to mean a (sic) commanding order to retire an employee of NGEI compulsorily it is incumbent upon the State Government to prescribe an elaborate procedure. To make third proviso of section 16(1) a complete provision; words of Rule 244(2) of the RSR cannot be borrowed to supplement the existing provision of section 16(1) of the Act 1989 Act. The provisions of RSR which are applicable to the Government employees cannot be interjected in the third proviso of section 16(1) of the Act 1989 Act. 24. As said before that vide orders dated June 27, 1994 the petitioners were informed by respondent No. 3 that a decision was taken by the Managing Committee to retire the petitioners compulsorily in the interest of institution, with immediate effect as they have completed 50 years. Cheques of three months salary in lieu of notice were attached with the orders. There is no provision in the third proviso of section 16(1) that the employee may be retired forthwith and he shall be entitled to claim three months' pay in lieu of notice. It appears that with the aid of Rule 244(2) of the RSR the respondent No. 3 issued the orders dated June 27, 1994. 25. There is no provision in the third proviso of section 16(1) that the employee may be retired forthwith and he shall be entitled to claim three months' pay in lieu of notice. It appears that with the aid of Rule 244(2) of the RSR the respondent No. 3 issued the orders dated June 27, 1994. 25. Action against an employee of NGEI for compulsory retirement may be taken only in accordance with the prescribed procedure. Section 43 confers power on the State Government to make rules for the purpose of carrying into effect the third proviso of section 16(1). In absence of the rules there is a void and the NGEI is precluded from exercising the powers conferred by the third proviso of Section 16(1). There are no executive instructions or administrative decision which could operate in the field in absence of the statutory rules governing the mode of compulsory retirement of the employees of the NGEI. In view of this it is difficult to agree with Mr. N.K. Maloo, learned Counsel for the respondent No. 3. I am of the firm view that in absence of the rules governing the mode of compulsory retirement, third proviso of section 16(1) of 1989 Act is inoperative and the petitioners could not have been retired compulsorily by resorting the third proviso of section 16(1) of 1989 Act read with Rule 244(2) of the RSR. The respondent No. 3 did not possess authority to compulsory retire the petitioners under third proviso of section 16(1). 26. In the ultimate analysis I would hold that learned Tribunal has committed grave error in rejecting the appeals of petitioners and in upholding the impugned orders of compulsory retirement. The writ petitions accordingly succeed and stand allowed, "the impugned order dated June 27, 1994 and order of Tribunal dated May 30, 1995 are set-aside and respondents No. 2 and 3 are directed to reinstate the petitioners on the posts they held on the date of passing of the orders dated June 27, 1994 with all consequential benefits." The parties are however left to bear their own costs.Order accordingly. *******