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Vasudeo Pandurang Pathak Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 275 of 1977
Judge
Reported in1982(2)BomCR517
ActsBombay Civil Services Rules - Rule 161; Constitution of India - Article 311
AppellantVasudeo Pandurang Pathak
RespondentState of Maharashtra and anr.
Appellant AdvocateV.V. Karmarkar, Adv.
Respondent AdvocateC.D. Shenoy, G.P.
DispositionAppeal dismissed
Excerpt:
.....311 - contents of memo did not amount to threats - memo valid. - - his service record was good. he held that there was no evidence, whatsoever, to challenge the plaintiff's contention that his record was good and nothing adverse was ever communicated to him. the question of public interest does not or cannot arise when government servant voluntarily retire under clause (2). he does it obviously to better his prospects somewhere else or get out of unwanted situation. the district court appears to be perfectly justified in holding that the memo does not involve any kind of inducement. it is well settled that it does not involve any breach of article 311 of the constitution......memo do not amount to any threats. the rules confers authority on the government to compulsorily retire government servant whose such retirement is in public interest. the circular indicates in what manner the existence of such public interest is to be ascertained. such a compulsorily retirement is intended to be effective before the age of superannuation. it is well settled that it does not involve any breach of article 311 of the constitution. clause (c-2) merely confers the identical right on the government servant after specified years of service to get out of the job with available benefits even when government does not decide to so retire him compulsorily. in view of this, the memo merely draws plaintiff's such right to seek retirement under (c-2). no question of threat arises......
Judgment:

V.S. Deshpande, C.J.

1. This is the plaintiffs second appeal. The plaintiff was employed as a Police Prosecutor, with effect from 4th December, 1952. He continued to be in service till he received a notice from the Government compulsorily retiring him. The said notice was dated 15th October, 1970 based on the 'High Power' Special Review Committee's recommendations dated 7th July, 1970. Plaintiff's date of birth is 12th December, 1916. Ordinarily he could not have been retired before 12th December, 1974 on which date he would be at 58. However, his notice dated 15th October, 1970 was withdrawn. Notices for compulsorily retirements were issued by the Government in exercise of its powers under Rule 161 of B.C.S. Rules. The said rules were in the meanwhile amended. The above notice of compulsory retirement was withdrawn. The plaintiff thereafter was served with a memo dated 9th June, 1971. The memo indicated that the Government had decided to compulsorily retire the plaintiff. The said memo gave an option to him to voluntarily retire by giving notice of three months and also avail of the leave preparatory to retirement if there by any to his credit. The plaintiff thereafter exercised his choice of voluntary retirement on 8th July, 1971. He, however, indicated in the said notice dated 8th July, 1971 that he was retiring voluntarily without prejudice to his rights to his objections to the legality of the Government decision to retire him compulsorily. He, thereafter challenged the validity of this memo dated 9th June, 1971 by the suit giving rise to this second appeal instituted by him on 4th October, 1971.

2. Plaintiff's case can be summarised thus. His service record was good. There was nothing adverse against him. No adverse remark was ever communicated to him. Decision to compulsorily retire him was arbitrary and without any material on record and also in violation of principles of natural justice. His further case was that his voluntary retirement under the notice dated 8th July, 1971 was induced by the Government's offer to permit him to avail of the leave preparatory to retirement. He also further pleaded that the memo informing him of the Government's decision to compulsorily retire him also operated as a threat and his voluntarily retirement was under coercion. According to him the said notice of voluntary retirement was void for want of his volition.

3. All that the defendants had stated in their written statement was that his relevant confidential records were considered by the concerned Special Review Committee consisting of the four Secretaries and it was only thereafter that the decision to compulsorily retire him was taken. The plaintiff, however, was given a chance of voluntarily retirement in accordance with the provisions of 161(c-2) as amended. On his voluntary retirement the question of the legality or otherwise of the decision to compulsorily retire cannot arise.

4. At the trial Court, the plaintiff examined himself in support of his case. The defendants do not seem to have cared to lead any rebuttal evidence whatsoever. On this evidence the learned trial Judge decreed the plaintiff's suit. He held that there was no evidence, whatsoever, to challenge the plaintiff's contention that his record was good and nothing adverse was ever communicated to him. The learned trial Judge also thought that notice of voluntary retirement given by the plaintiff was the result of the inducement and the threat contained in the memo dated 9th June, 1971. He also held that the decision of the Special Review Committee or Government to retire him compulsorily was arbitrary and without any basis in the absence of any material produced by the defendants to support their contention.

5. On appeal by the Government the decree passed by the trial Judge is set aside. Hence, this plaintiff's second appeal. It shall have to be conceded that if the decision of this case were to rest on whether Government had any material whatsoever, to support its decision to compulsorily retire the plaintiff, it would have been necessary to confirm the finding and the decision of the Trial Judge. It is not in dispute that no material whatsoever is placed before the Court to indicate in what manner the service record of the plaintiff was defective and on what material the Special Review Committee had decided to compulsorily retire him. It is true that the decision as to whether the Government servant, liable or not is to be of the Government not of the Court. The Government has evolved a procedure for its such decision under which a Review Committee considers the service records etc. to decide if any particular servant should or should not be so retired. When, however, the decision is challenged in the Court as a arbitrary and being without any basis, the Government has to satisfy the Court that there has been relevant material on which it could so conclude. Not only that no material is placed before the Court in this case but no indication of his deficiencies is made available in the written statement beyond a bald statement that Special Review Committee decided to compulsorily retire the plaintiff after considering the service record. As however will be presently seen, decision of this case does not rest on this point as the plaintiff has chosen to avail of Clause (c-2) of Rule 161 and seeking voluntary retirement.

6. It will be convenient to quote Clause (c-1) and (c-2) of Rule 161 at this stage :

'(c-1) Notwithstanding anything contained in Clauses (a) and (b) of this rule, the appropriate authority, if it is of the opinion that it is in the public interest so to do, by giving notice of not less than three months in writing or three months pay and allowances in lieu of notice, have the absolute right to retire :---

(i) any Gazetted Government servant under rule making control of the State Government,

(a) if he had entered Government service under any Government in India, before attaining the age of 35 years, after he has attained the age of fifty years, and

(b) in any other case, after he has attained the age of fifty-five years;

(ii) any Government servant who holds a post in Class III services of the State, either pensionable or non-pensionable after he has attained the age of fifty years.

(iii) any Government servant who holds a post in Class IV service of the State and who is recruited in Government service on or after the 21st September, 1970, after he has attained the age of fifty-five years.

(c-2) Notwithstanding anything contained in Clauses (a) and (b) of this rule, any Government servant may, by giving notice of not less than three months in writing to the appropriate authority retire---

(i) in the case of a Government servant,---

(a) referred to in Clauses (c-1), (i), (a), after he has attained the age of fifty years;

(b) referred to in Clauses (c-1), (i), (b), after he has attained the age of fifty-five years;

(ii) in the case of a Government servant referred to in Clauses (c-1), (ii) and (iii), after he has attained the age of fifty-five years.

Explanation.---For the purposes of Clauses (c-1) and (c-2) :

(1) 'appropriate authority' means the authority which has the power to make substantive appointment to the post or service from which the Government servant retires, or wants to retire;

(2) the three months notice referred to in these clauses may be given either before or after the Government servant attains the age of fifty or fifty-five years provided that the retirement takes place after he has attained the age of fifty or fifty-five years, as the case may be;

(3) in computing the notice period of three months referred to in these clauses, the date of service of notice and the date of its expiry shall be excluded.'

7. It is necessary to note that the Clauses (1) or (2), though part of the same scheme, are independent of each other. Every Government servant is entitled to be in service up to the age of superannuation in accordance with his service rules. The Government is ordinarily bound to retain him in terms of the protection guaranteed to him under Article 311 of the Constitution. The Government servant is also bound to serve till this period. He can resign only on the pain of losing the service benefits. Premature termination on either side may expose the employer Government and the employee Government servant to certain civil consequences. Rules providing for (C.R.) compulsory retirement be the effect however of reducing this period of service without any advance consequence. Clause (c-1) confers right on the employer Government to retire the servant compulsorily before the date of his superannuation if it is found to be in public interest. Guidelines have been evolved to ascertain in requirements of such public interest in respect of each servant. Clause (2) confers identical right on the Government servant to seek retirement before his date of superannuation. He can seek such retirement without losing ordinary service benefits. This right can be exercised on either side after completing the prescribed number of years of service. The question of public interest does not or cannot arise when Government servant voluntarily retire under Clause (2). He does it obviously to better his prospects somewhere else or get out of unwanted situation.

8. Right conferred on the Government servant under Clause (c-2) is identical with the right of the Government under (c-1) or its decision to that effect. Government servant can exercise his right under Clause (c-2) even if Government does not want to act under (c-1). Right conferred on Government servant under (c-2) is another side of the same coin of which right conferred on the Government under (c-1) is. These two Clauses (c-1) and (c-2), really are aimed to ensure equality between employer and employers before the law.

9. The nature of the right under (c-2) or exercise thereof does not alter merely because right is so exercised because of the choice given to him under the memo of the Government dated 9th June, 1971. The memo reminds him of what is possessed by him in his own right under (c-1). When thereafter plaintiff sought retirement under (c-2), it was unnecessary to consider if the Government had decided to retire him and if so it was in public interest or not or if it was arbitrary and fanciful. All the points become irrelevant when retirement is under (c-2) and it is of his own volition. It does not cease to be his own volition because (1) it was suggested by the Government or suggestion was consequently to its decision to compulsorily retire him (2) or it was suggestion after Government communicated its such decision. Legality of the Government decision thus is irrelevant.

10. It will also be convenient at this stage to consider the two other points raised by the plaintiff to dispute the voluntary nature of his letter dated 8th July, 1971. The trial Court upheld his contention that this letter was the result of inducement and coercion. I am unable to see any substance in these two contentions of the plaintiff. Rule 161(c-2) requires the Government to permit the Government servant to avail of leave preparatory to retirement because but for such permission the Government servant would not be able to avail of any such leave. Under the Scheme of the leave Rules in Chapter XV, no servant can avail of such leave if he gives up the job of his own volition. He can avail of this only when his premature removal is imposed on him but due to no misconduct of his. Rule 683 and connected rules make the position in this behalf very clear. Clause (2), therefore, confers an additional right on the Government servant to avail of such leave preparatory to retirement, where retirement is of his own volition and not the result of the Government decision or does not happen to be compulsory. This is in keeping with the underlying policy to ensure the same equality of law. Right to avail of such leave available under Chapter XV or compulsory retirement is made available under (c-2) even if retirement happens to be voluntary after the completion of the service of the prescribed years. Clause (c-2) provides benefits to the Government servants which they cannot avail of under the B.C.S. Rules. This cannot be said to be inducement in any sense of the term. The District Court appears to be perfectly justified in holding that the memo does not involve any kind of inducement.

11. I also agree with the learned District Judge when he says that the contents of the memo do not amount to any threats. The rules confers authority on the Government to compulsorily retire Government servant whose such retirement is in public interest. The circular indicates in what manner the existence of such public interest is to be ascertained. Such a compulsorily retirement is intended to be effective before the age of superannuation. It is well settled that it does not involve any breach of Article 311 of the Constitution. Clause (c-2) merely confers the identical right on the Government servant after specified years of service to get out of the job with available benefits even when Government does not decide to so retire him compulsorily. In view of this, the memo merely draws plaintiff's such right to seek retirement under (c-2). No question of threat arises. Government can exercise its right whether Government servant exercises his right or not.

12. Looked at from this point of view it is incorrect to hold as held by the trial Judge that there was any obligation on the part of the Government to prove act or omission of the Government servant which prompted them to reach the decision and to give chance to the Government servants to retire voluntarily. Memo dated 9th July, 1971 consists of two parts, one part conveying the decision of the Government to compulsorily retire him and the other part giving chance to the Government servant to retire of his own volition before implementing its decision. The notice dated 8th July, 1971 shall have, therefore, to be an act of volition of the plaintiff. He cannot be said to have any cause of action claimed therein against the Government defendants in the Court.

13. It is true that the notice of the plaintiff dated 8th July, 1971 purports to have been given without prejudice to his right to challenge the legality of the Government's decision to compulsorily retire him. This reservation cannot be of any assistance to the plaintiff. Where the Government servant avails of his right under Clause (2) and retires voluntarily in exercise thereof, the need of the Government to rely or implement its decision is dispensed with the Government servant has no occasion then to challenge is legality. Thus there is no occasion to avail of the reservation. In this view of the matter the judgment and decree passed by the learned District Judge appears to me to the unassailable. The appeal is, therefore, liable to be dismissed. I accordingly dismiss the appeal without any order as to costs.


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