It has then been argued by Mr. Bhansali that the notice (Ex. 1) was issued to Poonam Chand on September 4, 1968, and that as he was to retire on December 15, 1968, it was quite in order, for it was for a period of not less than three months. The learned counsel has tried to find support for his argument by a reference to Rule 2045(1) of the Indian Railway General Code, Vol. I which provides as follows:-- "2045. Date of effect of Sanction. --(1) Unless otherwise expressly stated in the communication itself, all rules, orders and sanctions issued by an authority take effect from the date of issue of the communication viz., office memorandum, notification, letter or telegram in which the rule, order or sanction is conveyed."
It is however not quite clear whether this rule can be said to govern Rule 2046 of the Indian Railway Establishment Code,
Volume II, which has been made under the proviso to Article 309 of the Constitution. Moreover, it refers to "rules, orders and sanctions," but does not make a mention of notices, so that it cannot be said to curtail the period of the three months' notice provided by the other rule. Any other view of the matter would in fact detract from the full benefit of the period of three months' notice, and there is no reason why the delay in the delivery of the notice to the petitioner should not be excluded in computing the period of the notice. Reference may in this connection be made to paragraph 166 of Halsbury's Laws of England, third Edition, Volume 37, where it has been stated as follows:-- "When a period is fixed before the expiration of which an act may not be done, the person for whose benefit the delay is prescribed has the benefit of the entire period, and accordingly in computing it the day from which it runs as well as the day on which it expires must be excluded and the act cannot be done before midnight of that day."
Railway Establishment Code - Rule 2045 & 2046--3 months notice prescribed--Whether notice given for shorter period is invalid & be ignored.
Rajasthan High Court
Poonam Chand Joshi And Ors. vs Union Of India (Uoi) And Ors. on 12 May, 1970
Equivalent citations: AIR 1971 Raj 12, 1970 (3) WLN 326
P.N. Singhal, J.
1. These three writ petitions arise out of facts which are quite similar. They have been argued together by the learned counsel for the parties and I shall dispose them of by this judgment as suggested by them.
2. All the three petitioners were confirmed employees of the Union of India (respondent No. 1) serving in the Northern Railway. They were going on 55, when they were served by three separate orders each of which has been marked Ex. 1, giving, inter alia three months' notice of their retirement. The orders were issued by the Divisional Personnel Officer with the approval of Divisional Superintendent, Jodhpur. They were issued on different dates. In the case of Poonamchand, order, Ex, 1 was issued on September 4, 1968, retiring him finally from December 15, 1968. It is not disputed that the order was served on him on October 1, 1969 (1968 ?). There is, however, no dispute about the inadequacy of the notices given to Pukhraj and Kanwar Singh, so that it is not necessary to give their dates. The petitioners have moved this court on a number of grounds which I shall have occasion to examine when I deal with the arguments of their learned counsel. It will be sufficient to say that although it was one of grievances of the petitioners that the notices were issued by an authority subordinate to that by which they were appointed, that ground has not been pressed for my consideration.
3. The respondents have denied the allegations regarding the invalidity of the impugned orders (Ex. 1) and have pleaded, inter alia, that the question of retirement was examined objectively in each case and a decision was taken by the Divisional Superintendent in the public interest.
4. It is common ground that the orders of retirement have been passed under Rule 2046 (h) of the Indian Railway Establishment Code, Volume II, hereinafter-referred to as "the Rule", It reads as follows,--
"2046(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 on attainment of the age of fifty-five years or thereafter by giving him notice of not less than three months in writing.
(i) Any railway servant may by giving notice of not less than three months in writing to the appointing authority retire from service on attainment of the age of fifty-five years or thereafter:
Provided that it shall be open to the appointing authority to withhold permission to a railway servant under suspension who seeks to retire under this Clause.
Note:-- Appointing Authority means the authority competent to make the first appointment to the grade which the railway servant for the time being holds.
Note:-- The three months' notice referred to in Clause (h) or Clause (i) may be given before the railway servant attains the age of fifty-five years, provided that the retirement takes place on his attaining that age."
5. The first point for consideration is whether the rule is violative of Article 14 of the Constitution on the ground that it permits discrimination against those employees who may be picked up for retirement at the age of 55 years, and the others, and also because it does not have a rational relation to the object sought to be achieved by the rule inasmuch as the criterion of "public interest" is far too subjective and vague. The learned counsel for the petitioners have laid much emphasis on this argument and have tried to support it by a reference to Moti Ram Deka v. N. E. Frontier Rly., AIR 1964 SC 600; S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427 andHarak Chand Ratan Chand Banthia v. Union of India, (1969) 2 SCC 166 - (AIR 1970 SC 1453). They have also made a reference to paragraph 9.18 (at page 201) of the "Constitutional Law of India" by H. M. Seervai.
6. It will be sufficient for me to say however that the validity of such a law relating to retirement has been conclusively upheld in several decisions of their Lordships of the Supreme Court beginning from Shyamlal v. State of Uttar Pradesh, AIR 1954 SC 369. As has been observed by their Lordships in T.G. Shivacharana Singh v. State of Mysore, AIR 1965 SC 280 where the impugned rule applies to all government services, it is not open to challenge under Article 14. A similar view has been taken by a Division Bench of this court in Gopalmal v. State, 1965 Raj LW 44 on the basis of the judgments of their Lordships cited above.
7. In AIR 1964 SC 600 arguments were made regarding the invalidity and the validity of Rules 148(3) and 149(3) of the Railway Establishment Code (1959), Vol. I, and even though no principle, such as the principle of "public interest" mentioned in Rule 2046(h) was contained in those Rules, their Lordships of the Supreme Court did not express any opinion on the controversy so that the judgment is really of no avail to the petitioners, AIR 1967 SC 1427 cited by the learned counsel for the petitioners did not deal with the question of retirement in terms of the service rules, and is not really in point.
8. Rule 2046 (h) lays down the criterion of "public interest" for the retirement of a Railway servant on attaining the age of 55 years or thereafter, and it has been argued that it is far too subjective and vague. The argument has been supported by reference to (1969) 2 SCC 166 = (AIR 1970 SC 1453), and my attention has been invited to paragraph 21 where their Lordships have made observation, inter alia, that the expression "public interest" in Section 27 (6) (g) of the Gold Control Act, 1968 does not provide any objective standard or norm or guidance. That case however related to Gold Control and it was found that the criterion of "public interest" did not provide a proper objective standard in the scheme of that law and in the facts and circumstances of that case. Even so their Lordships upheld the validity of Section 27 on the ground that it did not violate the guarantee under Article 14 of the Constitution. No substantial benefit can therefore be taken by reference to that judgment.
9. The question of classification and the conferment and exercise of discretionary power within the meaning of Article 14 of the Constitution have been lucidly dealt with in Chapter IX of the "Constitutional Law of India" by Seervai but there is nothing in paragraph 9.18 of that commentary which could be said to justify the argument that Rule 2046 (h) is violative of Article 14 of the Constitution. The learned commentator has in fact gone to the extent of assuming that an unfettered discretionary power was conferred by law, and has then posed the question whether that is enough to render it void irrespective of the question whether the power has in fact been exercised arbitrarily or capriciously? He has answered the question as follows:-- "It is submitted that there is no reason for striking down a provision because it confers unguided power if the power has not been exercised at all or in fact the person exercising the power has acted on a reasonable standard."
As it happens, the learned counsel for the petitioners have not shown that such a reasonable standard or criterion has not been applied in the case of the petitioner or that the impugned orders could be said to have been passed arbitrarily for any reason whatsoever.
10. In fact it may well be said that the rule making authority has clearly stated its legislative policy by providing in the rule that the right to retire any railway servant on attaining the age of
55 years, or thereafter, shall be exercised only if the appointing authority is of the opinion that it is in the "public interest" to do so. And such legislative policy can well provide a sufficient and satisfactory standard or criterion for the guidance of the appointing authority. It may be pointed out that the expression "interests of the general public" has been used in Article 19(5) of the Constitution, and Clause (b) of Article 304 uses the very expression "public interest" while dealing with restrictions on trade, commerce and intercourse within the country. There is therefore high authority for the view that such expressions can well serve the purpose of laying down the policy of the legislature and criterion for the guidance of the concerned authorities.
It may also be mentioned that even though the definition of "public purpose" in Section 2(f) of the Land Acquisition Act was not useful for ascertaining the ambit of the expression, and even though it was realised that "public purpose" was bound to vary with the times and the prevailing conditions, their Lordships upheld that criterion in Smt. Somawanti v. State of Punjab, AIR 1963 SC 151 for the purpose of declaring the need for acquisition of land. No objection can therefore be taken to the use of such an expression. Similarly, it has been held by their Lordships of the Supreme Court- in Ram Krishna Dalmia v. Justice S. R. Tendolkar, AIR 1958 SC 538 that the expression "public importance" in Section 3 of the Commissions of Inquiry Act, 1952, is sufficient to guide the Government in regard to the policy of the Law, and that the power could not be said to be unguided or uncontrolled. I have already made a reference to AIR 1954 SC 369 and AIR 1965 SC 280 and in both of these cases the criterion of "public interest" found favour with their Lordships of the Supreme Court.
11. Moreover, their Lordships of the Supreme Court have held in Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465 that once the policy underlying the legislation has been laid down, it will be sufficient to guide the discretion of the executive authority, and that its exercise can be regulated by the issue of administrative directions. In the present case, the learned counsel for the respondents has invited my attention to "Serial No. 3037-Circular No. 831--E/9-V(Eiv)," dated 7-7-1965 read with "Serial No. 3829-Circular No. 831 E/169/2-II(Eiv)" dated 4-4-1967 for retention of railway servants beyond the age of 55 years. The directions contained in these Circulars are unexceptionable and the learned counsel for the petitioners have not been able to urge anything against them.
12. I am therefore unable to think that there is any justification for the criticism put before me that the rule gives unguided or uncontrolled power and is violative of Article 14 of the Constitution. I am fortified in this view by the decision in Bairagi Ram v. State of U. P., AIR 1966 All 92, Rishi Ram v. Union of India, 1968 Lab IC 1317 (Delhi), R.L. Butail v. Union of India, AIR 1969 Delhi 15 and Somnath Misra v. Union of India, AIR 1969 Orissa 37.
13. The argument of the learned counsel for the petitioners that the impugned rule gives unbridled powers to the appointing authority and is arbitrary, does not require separate consideration, and it will be sufficient to say that Premadhar v. State of Assam AIR 1970 Assam 1 (FB) cited by them was a different case because the memorandum issued by the Government as a general order under F. Rule 56 raising the age of retirement to 58 years provided, inter alia, that the appointing authority may, "without assigning any reason", require the Government servant to retire after he had completed 55 years of age. That decision cannot therefore avail the petitioners because Rule 2046 (h) clearly requires that the opinion of the appointing authority in this respect should be based on a consideration of the "public interest" so as to rule out any unbridled or arbitrary decision.
14. It has next been argued that the rule violates the principles of natural justice because it does not provide for a show cause notice to the employee against his retirement even though he has a right to serve up to the age of 58 years under the rule. The argument has been supported by a reference to the decision in J.N. Sinha v. Union of India,1970 Ser LR 213 (Delhi), State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 and A.K. Kraipak v. Union of India, AIR 1970 SC 150.
15. A reading of the whole of Rule 2046 shows, however, that while a railway servant may be said to have the expectation that he would continue in service until he attains the age of 58 years in accordance with Clause (a), that is subject to the right of the railway administration to retire him under Clause (h) on attaining the age of 55 years, or thereafter in accordance with the conditions of that Clause. The one right is therefore counter-balanced by the other. The use of the expression "notwithstanding" in the opening words of Clause (h) in fact leaves no room for doubt that the Clause has an overriding effect, so that it cannot be doubted that Clause (a) is subject to it. The non obstante Clause has the effect of providing that it shall prevail and will have full operation in spite of the other provision in the rule, so that it is futile to contend that a railway servant has a right to serve up to the age of 58 years. This view is supported by the reasoning adopted in South India Corporation (P.) Ltd. v. Secy. Board of Revenue, AIR 1964 SC 207 and K. Parasuramaiah v. Pokuri Lakshmamma, AIR 1965 Andh Pra 220.
16. It cannot therefore be doubted that the appointing authority had the power to retire the petitioners on attaining the age of 55 years or thereafter, and the question is whether it was necessary for it to give them any notice before passing the impugned orders (Ex. 1).
17. Now the question of giving show cause notice is connected with the question whether the order is likely to affect any right of the other party. As I have taken the view that any right of the petitioners to retire at the age of 58 years was subject to the right of the railway administration to retire them at the age of 55, the petitioners cannot justifiably make a grievance because a show cause notice was not given to them before the passing of the impugned orders. It is by now well settled by the decisions of their Lordships of the Supreme Court in AIR 1954 SC 369, the State of Bombay v. Saubhagchand M. Doshi, AIR 1957 SC 892 and Dalip Singh v. State of Punjab, AIR 1960 SC 1305 that an order of compulsory retirement in accordance with the service rules has no stigma or implication of misconduct, misbehaviour or incapacity and does not entail the loss of the benefits already earned by the employee. They have further held that such an order of retirement cannot be challenged on the ground that the employee was not afforded an opportunity of showing cause against the action sought to be taken in regard to him.
18. So when retirement under the service rule is not a punishment and does not involve the loss of any benefit, there is really no scope for the argument that natural justice requires that the person concerned should be given a show cause notice or a hearing before the making of the order of retirement. It cannot be disputed that any such principle of natural justice will have no application when an employee is retired, in the normal course, on attaining the age of superannuation, and there is, a priori, no reason why it should not equally be so when he retires in terms of his service rule without any detriment to his terminal benefits. There is no force therefore in the argument that the petitioners should have been given a show cause notice, or a hearing, before the making of the impugned orders. I am fortified in this view by the decisions in Abdul Ahad v. Inspector General of Police, U. P., AIR 1965 All 142, Gopinath Gupta v. Post Master General, AIR 1966 Cal 483 and Abdul Rahim Ahmed v. State of Mysore, AIR 1969 Mys 248 which are directly in point. It has to be appreciated that the question of retirement under the service rules is not typically justiciable and the absence of notice cannot be considered an affront to justice.
19. Moreover any such show cause notice will really be futile and meaningless in such cases, for what cause will the employee show if he is served with such a notice? The issue of the notice will therefore be an empty formality. If, however, the argument for the issue of the notice is based on the ground that it will enable the employee to make a factual representation to the appointing authority, that purpose will amply be served by the three months' notice provided by the rule, so that he can always have the opportunity of making his representation well before the date of retirement.
20. I have gone through the cases cited by the learned counsel for the petitioners. With all respect to the learned Judges who decided the case of Col, J. N. Sinha v. Union of India, 1970 SLR 213 (Delhi) I am unable to take the view, for the reasons already stated, that the order of retirement involved "civil consequences" and should have been passed consistently with the rules of natural justice. In that case there were allegations of bias and hostility, but the learned counsel for the present petitioners have frankly admitted that they are not in a position to make out any such reason, or even to contend that sufficient data was not available to the appointing authority for the purpose of taking the decision for the retirement of the present petitioners. It may be mentioned, as an instance, that all that has been stated in paragraph 16(vi) of Poqnam Chand's petition is that a notice giving reasonable opportunity was not served upon him. This is a bald statement and does not furnish any ground for concluding that the giving of a notice was at all necessary in the facts and circumstances of his case. AIR 1967 SC 1269 was a vastly different case because the petitioner's date of birth was altered by the State Government to her prejudice in violation of the rules of natural justice and fair play inasmuch as she was not given an opportunity to set up her version or defence and had no opportunity of correcting or controverting the evidence which was utilised against her.
Similarly, AIR 1970 SC 150 was a vastly different case in which one of the members of the Selection Board was a candidate for the selection and, although he did not take part in the deliberations of the Board at the time of his own selection he took part throughout while making the selections of the other candidates including his rival candidates. It was therefore held that the selection list prepared by the Board was vitiated for violation of the rules of natural justice. That case can be of no avail for purposes of the present controversy.
21. I may here examine the other argument of the learned counsel for the petitioners that the power to make an order of retirement under the rule is quasi-judicial and should be exercised as such. Reference in this connection has been made to paragraph 16.55 (at page 606) of the "Constitutional Law of India" by Seervai, and Bhagwan v. Ram Chand, AIR 1965 SC 1767.
22. Paragraph 16.55 summarises the conclusions emerging from decided cases on the duty to act judicially, but those conclusions do not support the argument of the learned counsel for the petitioners. The reason is that ministerial or executive acts have been excluded from the category of the acts for which a duty is cast to act judicially, and it has further been observed that the "conferment of a discretion which is subjective shows that judicial review is excluded". Reference may also be made to paragraph 16.150 where it has been stated, on the basis of the decided cases, as follows:-- "It has also been held that where a decision is left to the subjective satisfaction of any authority, the decision of that authority is not quasi-judicial and rules of natural justice do not apply."
The argument based on paragraph 16.55 is therefore amply met by the other observations in the commentary which are directly in point. Experience has shown that it is not possible to deal with such a question in the abstract and that the only feasible course is to answer it with reference to the requirements of particular situations.
23. AIR 1965 SC 1767 cited by the learned counsel lays down that an obligation to act judicially exists where the authorities deal with the rights of the citizen, as well as in cases in which such an inference can be drawn from the scheme of the statute and its material provisions. There is, however, nothing in the rule to show that it deals with the rights of the petitioners or casts any obligation on the appointing authority to act judicially. There is therefore no force in this line of argument also.
24. An argument has however been made in Poonam Chand's case (Civil Writ Petn. No. 987 of 1968) that the petitioner was not given a notice of "not less than three months" and that order Ex. 1 must therefore be held to be invalid. As has been stated, that order was issued on September 4, 1968, and it is not disputed before me that it was served on the petitioner on October 1, 1969 (1968?), terminating his service with effect from December 15, 1968. The order did not therefore give him the minimum notice of three months,
25. It does not require much argument to say that "notice of not less than three months" means a notice of at least three months. In fact that was all that the employee was entitled to under the rule, and there is no reason why he should be denied that much of the benefit.
26. The normal age of retirement is 58 years, and retirement at the age of 55 years is therefore a very serious matter for the employee at that period of his life. The provision for the grant of notice therefore serves a useful purpose in many ways. It enables the employee to prepare himself for the retirement. It gives him time to apply for leave preparatory to retirement, get it verified and avail of it at the time of the retirement. It also enables him to explore the possibility of an alternative employment, if necessary. And there is no reason why the benefit of the full period of notice should not be given to the employee, for he can ask for no more,
27. In fact a perusal of the impugned order Ex. 1 shows that the petitioner had a lot to do within the period of the notice given to him. He was asked to apply for leave preparatory to retirement, for there was the threat that in the event of non-receipt of his application "within the period of notice" he would not be eligible for any such leave. Then he was informed that he would be retired finally from December 15, 1968, and that the three months' notice period and the leave period due to him "can run concurrently". Thus even though the order of retirement called upon the petitioner to do a lot within the period of the notice, that notice, in fact and substance, fell short of the minimum period of three months. There is no reason therefore why the insufficient notice should not be held to be prejudicial and invalid.
28. It has then been argued by Mr. Bhansali that the notice (Ex. 1) was issued to Poonam Chand on September 4, 1968, and that as he was to retire on December 15, 1968, it was quite in order, for it was for a period of not less than three months. The learned counsel has tried to find support for his argument by a reference to Rule 2045(1) of the Indian Railway General Code, Vol. I which provides as follows:-- "2045. Date of effect of Sanction. --(1) Unless otherwise expressly stated in the communication itself, all rules, orders and sanctions issued by an authority take effect from the date of issue of the communication viz., office memorandum, notification, letter or telegram in which the rule, order or sanction is conveyed."
It is however not quite clear whether this rule can be said to govern Rule 2046 of the Indian Railway Establishment Code,
Volume II, which has been made under the proviso to Article 309 of the Constitution. Moreover, it refers to "rules, orders and sanctions," but does not make a mention of notices, so that it cannot be said to curtail the period of the three months' notice provided by the other rule. Any other view of the matter would in fact detract from the full benefit of the period of three months' notice, and there is no reason why the delay in the delivery of the notice to the petitioner should not be excluded in computing the period of the notice. Reference may in this connection be made to paragraph 166 of Halsbury's Laws of England, third Edition, Volume 37, where it has been stated as follows:-- "When a period is fixed before the expiration of which an act may not be done, the person for whose benefit the delay is prescribed has the benefit of the entire period, and accordingly in computing it the day from which it runs as well as the day on which it expires must be excluded and the act cannot be done before midnight of that day."
I have no doubt therefore that as notice Ex. 1 fell short of the minimum period of three months, petitioner Poonam Chand was entitled to ignore it as an invalid notice in view of the clear requirement of the rule that the notice shall be of not less than three months. I am fortified in this view by the decision in Mohan Singh v. State of Haryana, 1968 Ser LR 461 = (1968 Lab IC 1435 Punj). Mr. Bhansali has cited Bhawani Sahai v. State of Rajasthan, 1966 Raj LW 624 and State of Uttar Pradesh v. Dinanath Rai, 1969 Ser LR 646 (SC) as cases in which a shorter notice was upheld, but they were different cases. In the former case it was held that the circular issued by the Dewan of the former Jodhpur State barring dismissal without notice did not have the force of law as it was merely advisory. In 1969 Ser LR 646 (SC) there was a provision for payment of salary in lieu of notice, and so the case was decided on the basis of provisions which were quite different. These two cases can therefore be of no avail to the respondents. It may be mentioned that a somewhat similar point came up for consideration before their Lordships of the Supreme Court in State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313. It was a case in which an order of dismissal was passed against a government official, but was kept on his file without communication to the officer concerned, or publication. Their Lordships took the view that the order could not be said to take effect unless the officer concerned knew about it or it was otherwise communicated to him. There is no reason why the same criterion should not apply in the present case.
29. Faced with such a situation, Mr. Bhansali tried to argue that as a period of much more than three months has passed since the delivery of order Ex. 1 to petitioner Poonam Chand, there is now no reason why that should not be considered to be sufficient compliance of the rule. It will be a simple answer to say, however, that as the notice was invalid for the reasons mentioned above, petitioner Poonam Chand was entitled to ignore it altogether. There is therefore no force in this argument also.
30. It must therefore be held that order Ex. 1 is not in accordance with the law and deserves to be quashed.
31. This, however, will give relief only to petitioner Poonam Chand, for there is no dispute regarding the sufficiency of the notice in respect of the other two petitioners. Mr. Mridul, learned counsel for petitioner Kanwar Singh has therefore argued with reference to paragraphs 9A, 9B, 9C and 9D of his petition that he is entitled to full leave preparatory to retirement as well as the other terminal benefits. A similar argument has been made in the case of petitioner Pukhraj by Mr. Joshi. It is not necessary for me, however, to examine the claims because it has been stated by Mr. Bhansali, learned counsel for the respondents, that the respondents have always been willing to grant the full terminal benefits, including leave preparatory to retirement, to the extent admissible under the rules, to the petitioners. The point is not therefore in controversy and does not call for decision.
32. In the result, Writ Petition No. 987 of 1968 (Poonam Chand v. Union of India and others) is allowed to the extent that the impugned order Ex. 1 retiring him from service is quashed. But it is clarified that it will be permissible for the concerned authority to retire him by giving a notice in accordance with the law. The writ petitions of Pukh Raj and Kanwar Singh (Writ Petitions Nos. 3 of 1969 and 695 of 1968) fail, and are dismissed with the observation that the petitioners shall be entitled to the full terminal benefits admissible to them under their service rules. In the circumstances of the case, the parties are left to bear their own costs in all the three cases.
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