V. Balakrishna Eradi, J.
1. The petitioner before me was holding the post of Superintending Engineer (Civil) in the service of the Kerala State Electricity Board (hereinafter referred to as the Board). On the 4th of November, 1968, he intimated the Board as per Ext. P-1 that he wished to proceed on voluntary retirement as per the provisions of Clause (iii) of the Board's Order No. R. Dis. 25790/66 dated 28.4.1967 since he had put in more than 10 years of qualifying service. He enclosed also an application for leave and requested that he may be granted with effect from 15th January, 1969 all the leave for which he was eligible and that he may be permitted to proceed on voluntary retirement at the end of such leave. There was a further request made in that petition for the grant of permission to tae petitioner to be self-employed professionally and to take up employment under a private agency as per Article 125, Section 5, Chapter VII, Part III of the Kerala Service Rules. The Board by its order dated 10.1.1969 granted earned leave to the petitioner for 112 days and half pay leave for 450 days from 15.1.1969. Subsequently by its proceedings evidenced by Ext. P-2 dated 23.1.1969 the Board passed orders permitting the petitioner to proceed on voluntary retirement on the expiry of the leave sanctioned to him. It is also stated in Ext. P-2 that the petitioner was permitted to practice as a consulting engineer and valuer under the Estate Duty Act, Wealth Tax Act and Gift Tax Act. Steps were thereafter taken by the Board to finally close the petitioner's provident fund account and it is seen from Ext, P-4 that the account was finally closed on 1.11.1969 by forwarding to the petitioner a cheque for Rs. 4256.
2. The petitioner states that on the faith of the orders passed by the Board granting him leave preparatory to retirement and permitting him to proceed on voluntary retirement on the expiry of the said leave and also to take up other work by self-employment or accepting employment under any other agency as consulting engineer, valuer etc. The petitioner had settled down in his native town of Tirunelveli and set up practice as a consulting engineer and entered into several commitments with many parties including departments of Madras Government and Municipalities and Panchayats for supervision of various construction works involving large financial outlay. In proof of the above fact the petitioner has produced Exts. P-7 to P-16 which are documents relating to some of these contracts.
3. On 30.3.1970 the Board sent a communication to the petitioner (Ext. P-6) informing that exigencies of service needed immediate revocation of the orders dated 10.1.1969 and 15.1.1969 whereby the petitioner had been granted leave and permitted to proceed on voluntary retirement etc. and that those orders, therefore, will stand revoked with effect from the afternoon of 1st May, 1970. The petitioner was called upon by Ext. P-6 to join duty on the forenoon of 2nd May, 1970 and to report himself to the Board's Chief Engineer (Civil) at his office at Trivandrum, It is to quash this order that the petitioner has come up to this Court with this writ petition.
4. The challenge made by the petitioner against Ext. P-6 is based on two grounds. Firstly, it is contended that the Board has acted without jurisdiction in purporting to revoke its earlier orders dated 10.1.69 and 15.1.1969 whereby the petitioner had been granted leave preparatory to voluntary retirement and permitted to proceed on such retirement on the expiry of the leave period-Secondly it is urged that even if it is to be assumed for the purposes of argument that the respondent had the power to recall the petitioner from leave and to revoke the permission already granted to him to proceed on voluntary retirement such action particularly in the circumstances of the present case where it was being taken after a period of more than one year and two months had elapsed since the passing of the prior orders whereby the petitioner had been permitted to engage himself in other employment with the adverse civil consequences and ought not therefore to have been taken without complying with the principles of natural justice. On this basis the order Ext. P-6 is contended to be void since no notice or opportunity of any kind had been given to the petitioner prior to its passing.
5. The learned Advocate appearing for the Board refuted both the contentions put forward by the petitioner as not tenable in law. It is contended by him that the Board has the absolute discretion to recall any officer from leave, if such action is called for in the exigencies of service. According to the Board's counsel the order Ext. P-6 came to be passed because it was discovered by the Board that the earlier orders issued in granting the petitioner all the leave available to his credit and permitting him to proceed on voluntary retirement on the expiry of the leave had been passed under a misapprehension regarding certain material facts and circumstances relating to the petitioner's work and conduct. Exhibit P-6 is therefore stated to be an action taken merely by way of rectification of a mistake. Counsel submitted that even though the principles of natural justice may be ordinarily applicable to such a proceeding there cannot be said to have been any violation of those principles in the present case since the order Ext. P-6, which was to become effective only on 2.5.1970 was communicated to the petitioner on 1.4.1970 itself and hence the petitioner had ample time to make any representations to the Board in case he desired to do so.
6. I shall first take up for consideration the question whether there is power vested in the respondent to revoke the permission which was granted to the petitioner to voluntarily retire from service under the provisions of Clause (iii) of Board's order No. R. Dis. 25790/66 dated 28.4.1967 read with Rule 64 of Chapter IV, Part III of the Kerala Service Rules. Rule 64 referred to above deals with 'Retiring Pension' and reads:
A retiring pension is granted to an officer who is permitted to retire after completing qualifying service of thirty years or such less time as may for special class of officers be prescribed.
Note I: Government retain an absolute right to retire any officer after he has completed qualifying service as stated in the above rule with out giving any reasons, and no claims to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of an officer.
Note 2: An officer may retire from service any time after completing 30 years' qualifying service provided that he shall give in this behalf a notice in writing to the appropriate authority, at least three months before the date on which he wishes to retire.
7. What has been done by the Board's Order dated 28.4.1967 is to prescribes a lesser period of qualifying service for its officers for the purposes of Rule 64 by fixing it at 20 years. On a combined reading of Notes 1 and 2 to Rule 64 the inference seems to me to be irresistible that the scheme underlying these provisions is to provide for reciprocal rights to the Government (or the Board as the case may be) as well as to the officer to put an end to the contract of service, at their option, provided the officer has already completed the requisite period of qualifying service mentioned therein and subject to the conditions enumerated in the rule. The condition to which the Government's power has been subjected is that it should not be exercised except when it is in the public interest to dispense with the further services of the officer. The corresponding condition subject to which the officer is given a right to voluntarily retire is only that he should give a notice in writing to the appropriate authority at least three months before the date on which he wishes to retire.
8. The learned Counsel appearing for the Hoard relied very strongly on the fact that in referring to an officer who has voluntarily retired the words used in Rule 64 are 'who is permitted to retire after completing qualifying service of 30 years'. He contended that the word 'permitted' which occurs in the rule clearly shows that voluntary retirement is made dependent on the grant of permission by the competent authority and that this necessarily involves the conferment of a discretionary power on that authority either to grant or refuse such permission. In my opinion, the permission referred to in the rule is only a formal permission which the authority is bound to grant under the terms of Note 2 thereof, in every case where a request is made by an officer who has put in the requisite qualifying service and given notice in writing of his intention to take advantage of the said provision at least three months before the date on which he wishes to retire. As I have already pointed out the right conferred on the officer under Note 2 of Rule 64, who has put in the requisite period of qualifying service, has been subjected only to one condition namely that he should give a notice in writing to the appropriate authority at least three months before the date on which he wishes to proceed on voluntary retirement. Once that condition has been complied with there is no jurisdiction for the authority concerned to refuse to such officer permission to take advantage of the benefit of the provision contained in Note 2 to Rule 64. Hence it is not possible to accept the contention put forward by the counsel for the Board that a discretion is vested with the Board either to grant or to refuse permission to an officer even if he has satisfied the requirements specified in Note 2.
9. In the present case, the petitioner had given intimation to the Board as per Ext. P-1 as early as on 4.11.1968 that he wished to proceed on voluntary retirement at the termination of the period of leave for which he was eligible and for the grant of which he had applied. The leave applied for by the petitioner was sanctioned and admittedly the period of the leave so granted extended to about 562 days from 15.1.1969. There is also no dispute before me that the petitioner had put in more than 20 years of qualifying service. In the circumstances it is clear that the petitioner had fulfilled all the requirements of Note 2 to Rule 64 of Chapter IV, Part III, or the Kerala Service Rules read with the Board's order dated 28.4.1967 whereby the requisite qualifying period had been reduced from 30 years to 20 years. In those circumstances the Board had no option or discretion under the Rules except to permit thy petitioner to proceed on voluntary retirement at the end of the period of leave sanctioned to him.
10. It now becomes necessary to consider whether after having granted permission to the petitioner to proceed on voluntary retirement at the termination of the leave as per the order evidenced by Ext. P-2 dated 23.1.1969 it was open to the Board more than one year and two months thereafter to revoke that order as has been done under Ext. P-6 dated 30.3.1970. Counsel appearing on behalf of the Board has not been able to rely on any specific rule contained in the Kerala Service Rules or even on any general order passed by the Board as constituting the source of power for taking such action. What was contended was only that the Board has exercised the inherent right, which every authority has according to counsel, to inks steps to rectify any mistake that it might have committed in the past. It is extremely doubtful whether a proposition stated in such broad terms can be accepted as correct thereby recognising such an unlimited and absolute power of rectification. I am not, however, called upon in this case to express any final opinion on that matter since the necessary factual foundation for advancing such a contention has not been laid by the respondent. There is little scope for such a contention being urged with any degree of plausibility unless it be that the prior order which is sought to be varied on the ground of mistake was passed on the basis of any assumption of fact which is later discovered to be vitiated by mistake or on some erroneous impression regarding the law. In the light of the interpretation which I have placed on the provisions of Rule 64 and the Notes thereto it is clear that only two factors had to be enquired into before granting permission to the petitioner to voluntarily retire from service and they were (1) whether the petitioner had put in the requisite period of qualifying service and (2) whether he had given a notice in writing intimating his intention to retire three months before the date on which he wished to retire. The respondent has no contention that in regard to either of these matters any mistake whatever had been committed by the Board. But, what is stated by the Hoard is that subsequent to the passing, of orders permitting the petitioner to proceed on voluntary retirement it has come to the Board's notice from an inquiry report received by it on 23.11.1960 from the Director of Vigilance that in the course of an investigation conducted into certain complaints relating to the grant of contracts in connection with the Idiki Project irregularities had been disclosed in which the petitioner was also involved. It is submitted in the Board's counter affidavit that 'had the Board knowledge of the irregularities seen now to have been committed by the petitioner, it is doubtful whether the petitioner would have been granted the leave or permitted on expiry of leave to retire...as has been allowed.' It is significant that even in the counter-affidavit the Board is not in a position to state categorically that permission would not have been granted to the petitioner to proceed in voluntary retirement if it had knowledge of the facts which are now stated to have been brought to its notice by the inquiry report received from the Vigilance Department. On the other hand, what is stated only is that 'it is doubtful' whether such permission would have been granted. Quite apart from that, I do not see how, even if the above statements in the counter-affidavit are accepted as correct, the order Ext. P-2 can be said to have been vitiated by fundamental mistake of the kind which can be suo motu corrected by the authority after the lapse of more than one year and two months subsequent to its passing. By the order Ext. P-2 the petitioner has been permitted to retire from service only with effect from 31.7.1970 and even if it be the case of the Board that initiation of disciplinary proceedings against the petitioner has been found to be necessary consequent on the information which has subsequently come into its possession, the order Ext. P-2 did not in any manner preclude the Hoard from taking such action, because so long as the officer's retirement had not actually taken effect any disciplinary proceeding could be initiated against him prior to the date of retirement and it could be validly continued under the rules even subsequent to that date. In fact, it was stated by the respondent's counsel that charges have been already framed against the petitioner and he has also submitted his statement of explanation. Such being the case, merely by reason of the tact that subsequent to the passing of the order granting permission to the petitioner to proceed on voluntary retirement certain irregularities alleged to have been committed had come to the Board's notice it cannot be said that the order Ext. P-2 was vitiated by a mistake so as to justify its revocation even if it is assumed that such a power of revocation is vested in the Board.
11. It must follow from the foregoing discussion that the respondent acted without jurisdiction in revoking the permission which had been granted to the petitioner under Ext. P-2 to proceed on voluntary retirement. As pointed out by the Supreme Court in Patel Narshi Thakershi v. Shri Pradyumansinghji Arjunsinghji (1970) I S.C.W.R. 491, the power to review is not an inherent power and has to be conferred by law either specifically or by necessary implication. In the absence of any provision either in the Kerala Service Rules or in any of the executive orders defining the Board's powers conferring on the Board the power to review an order passed by it under Note 1 of Rule 64 of Chapter IV, Part III of the Kerala Service Rules, it is not possible to accept the contention put forward by the Board's counsel that the order Ext. P-6 was validly passed in the exercise of the Board's inherent power to correct a mistake.
12. Counsel for the petitioner is also, in my opinion, well-founded in his contention that the impugned order Ext. P-6 in so far us it has proceeded to revoke the permission granted to the petitioner under Ext. P-2 to proceed on voluntary retirement is violative of the principles of natural justice. In this connection it is pertinent to recall that under Ext. P-2 the petitioner had been permitted to take up other remunerative employment by engaging himself as a consulting Engineer and valuer. The petitioner has produced Exts. P-7 to P-16 to show that on the faith of the permission so granted to him he had entered into various commitments undertaking to supervise the construction of several substantial building operations. There cannot be any doubt that in such circumstances any order canceling the permission granted to the petitioner for proceeding on voluntary retirement and recalling him back to service is bound to visit him with serious civil consequences and affect him adversely in respect of the contractual obligations entered into by him with third parties. It is imperative that before any such order which will visit a party with adverse civil consequences is passed, an opportunity should be afforded to that party to make his representations against the proposed action. In defence to the petitioner's contention based on the principles of natural justice it was submitted by the counsel on behalf of the Board that there was hardly anything which the petitioner could have urged against the proposed action even if he has been given a notice. This is not a plea which can be accepted in answer to an objection bused on violation of natural justice. As laid down by the Supreme Court in The Board of High and Intermediate Education, U.P. v. Kumari Chitra Srivastava (1970) I S.C.C. 121, the question whether a duty arises in a particular case to give a notice to the party affected does not depend on the authority's satisfaction that the person to be penalised has no defence but has to be decided with reference to the nature of the order proposed to be passed. In the present case the order Ext. P-6 in so far as it purports to revoke the permission granted to the petitioner to voluntarily retire from service does visit him with adverse civil consequences and hence it must follow that there was an obligation in law on the part of the respondent to afford to the petitioner an opportunity of showing cause against such action before final orders were passed.
13. I cannot also accept the further contentions advanced by the respondent that the procedural defect, if any, has not actually resulted in any denial of natural justice because the order Ext. P-6, though finally passed, was to take effect only after a month from its date and the petitioner could have, if he so wanted, made any representations which he wished to make before the Hoard. The requirement of natural justice is that an opportunity to make representations should be afforded before the order is passed and if that has not been complied with the order so passed is null and void.
14. I therefore hold that the order Ext. P-6 in so far as it has proceeded to cancel the permission granted to the petitioner to voluntarily retire from service, is illegal and void on both the grounds staled above.
15. Under Ext. P-6 the Board has also cancelled the leave preparatory to retirement granted to the petitioner and has recalled him from leave. Various contentions have been taken before me by the counsel appearing for the petitioner for challenging this action. Those arguments have been sought to be met by the Board's counsel by relying on the provision contained in Rule 65 of Chapter IX of Part 1 of the Kerala Service Rules which states that leave cannot be claimed as a matter of right and that when exigencies of public service so require, discretion to revoke leave of any description is reserved to the authority empowered to grant it. The period of leave granted to the petitioner expired on 31.7.1970 arid in one sense the question as to whether the leave was rightly revoked or not has become purely academic. It is no doubt true that the grant of leave simpliciter is a matter left to the discretion of the competent authority under Rule 65 of Chapter IX, Part 1 of the Kerala Service Rules and there is also power reserved to such authority to revoke the leave when the exigencies of public service so require The leave granted to the petitioner before me was leave preparatory to voluntary retirement and he had also been permitted to take up other employment as a consulting engineer and valuer for wealth tax, estate duty and gift tax. The petitioner's counsel invited my attention to Rules 70 and 72 of Chapter IX, Part I of the Kerala Service Rules and contended that on a reading of these rules it would be clear that an officer who has proceeded on leave preparatory to retirement cannot be compelled against his will to return to duty by revoking such leave. Rule 70 says that all orders recalling an officer to duty before the expiry of his leave should slate whether the return to duty is optional or compulsory. Rule 72(2) lays down that an officer on leave preparatory to retirement shall be precluded from withdrawing his request for permission to retire and from returning to duty, save with the consent of the authority empowered to appoint him. Note 2(a) to Rule 72 states:
When an officer who has proceeded on leave preparatory to retirement before the date of compulsory retirement is required for employment during such leave in any post under Government and he is agreeable to return to duty, he will be recalled to duty and the unexpired portion of his leave from the dale of rejoining duty will be cancelled. The leave so cancelled will be treated as leave refused and subject to the provisions of Rule 75 it may be granted from the date of compulsory retirement of the officer. Such recall will be treated as optional for the purpose of Rule 70.
It is pointed out by the Board's Advocate that Note 2(a) would apply in the cases of officers who have proceeded on leave preparatory to retirement immediately before the date of compulsory retirement and not to cases like the present one where the leave has been granted preparatory to voluntary retirement. What is, however, to be noted is that Rule 70 specifically requires that an order recalling an officer from leave should state whether such recall is optional or compulsory. Rule 72 contains a prohibition restraining the officer who has proceeded on leave preparatory to retirement from with drawing his request for permission to retire and from returning to duty except with the consent of the appointing authority and also a similar prohibition restraining the author from recalling such an officer from leave except in case where he is agreeable to come back to duty. In other words, an element of reciprocal concurrence appears to be clearly insisted on by the rule in the matter of cancellation of leave in case of officers who have proceeded on leave preparatory to retirement. Admittedly Clause (2) of Rule 72 will apply to all officers who have proceeded on leave preparatory to retirement, whether the retirement be voluntary or compulsory. That being so I do not think that the scope of Note 2 thereto can be legitimately restricted so as to take in only cases of grant of leave preparatory to compulsory retirement. That will also amount to a classification without any reasonable basis to support it. In my opinion, the proper construction to be placed on Note 2(a) is that it applies to all officers who have proceeded on leave preparatory to retirement before the date of their compulsory retirement has been reached. In that sense the petitioner is also an officer who has proceeded on leave preparatory to retirement before the date of his compulsory retirement.
16. I am therefore inclined to accept the petitioner's contention that under the Rules an officer who has proceeded on leave preparatory to retirement can be recalled from leave only in case he is agreeable to rejoin duty. It is, however, not necessary for me to rest my conclusion on this ground because, is my view, the revocation of the leave granted to the petitioner does, in the circumstances of this case, affect him adversely in regard to his civil rights. Inasmuch as the petitioner had been expressly granted permission by the Board to take up other employment to practise as a consulting engineer and valuer under the Estate Duty Act, Wealth Tax Act and Gift Tax Act and the revocation of the order granting him leave preparatory to retirement and recalling him to duty is bound to result in serious adverse consequences to him in regard to various contracted commitments which he might have entered into on the faith of the permission granted to aim. Counsel for the respondent sought to meet this point by laying emphasis on the fact that the wording employed in Ext. P-2 was that the petitioner was 'for the time being' allowed to practice as a consulting engineer etc. The attempt was to make out that the permission granted was only provisional and precarious in nature and that it was liable to be revoked at any time. But, a scrutiny of the correspondence that led to the passing of the order Ext. P-2 shows beyond doubt that the words 'for the time being' were used by the Board only with intent to convey that the restrictions which were placed on the nature of the activities which the petitioner was permitted to engage himself in were to enure for the time being. In this connection it is necessary to refer to the request made by the petitioner in Ext. P-1 and whit has transpired thereafter. In Ext. P-1 the petitioner stated 'during she period of leave and after retirement I may be permitted to be self-employed provisionally or employed under a private agency, as the case may be, as per Article 125, Section V, Chapter VII, Part III of K.S.R.' From the file produced in court by the counsel appearing for the respondent it is seen that on 9.12.1968 the Chief Accounts Officer addressed a letter to the Secretary of the respondent Board which dealt entirely with the petitioner's request for voluntary retirement. The last paragraph of the said communication runs thus:
The exact nature of employment Sri Ramaswamy seeks during the leave may be ascertained first and his request considered in the light of the provisions contained in Rule 125 K.S.R. Part III.
Thereupon the Secretary wrote, to the Chief Engineer on 23.12.1968 requesting him to ascertain and report the nature of the employment which the petitioner was to take up during the period of leave and alter retirement. A copy of this letter is seen to have been forwarded by the Chief Engineer to the petitioner calling upon him to furnish the required information. The petitioner thereupon wrote to the Chief Engineer on 26.12.1968 in these terms:
With reference to the letter cited above I may state that for the present I am only going to practise as a Consulting Engineer and Valuer, on my own. If at any time I am seeking any private employment I will intimate the Board and get the necessary permission of the Board.
It was after this information was communicated by the Chief Engineer to the Electricity Board that the order Ext. P-2 was passed wherein is contained the statement that the petitioner was for the time being permitted to practise as a consulting engineer under the Estate Duty Act etc. In the context it can only mean that the permission was for the time being restricted to only the particular types of activities enumerated in the order leaving it open to the Board to make appropriate modifications in respect of that matter by any future order, In using those words it was not the intention of the Board at the time of passing Ext P-2 to make the grant or permission precarious in the sense that the petitioner should not enter into any long term commitments even in respect of works which may be taken up by him while practising as consulting engineer and valuer.
17. It is also significant in this connection to remember that the conduct of the Board has also been such as to treat the petitioner as haying ceased to be in its service for all practical purposes because it is seen that in the list of Superintending Engineers published by the Board in 1970 in its diary the petitioner is not shown as a person in the service of the Board. It is also seen from Ext. P-4 that the petitioner's Provident Fund account was finally closed, although it is no doubt true that this fact is not by any means conclusive on this matter.
18. The principles of natural justice are not embodied rules and are not susceptible of being strait-jacketed into a rigid formula; the applicability of these principles to any given case will have to be determined with reference to facts and circumstances of each case. On the facts of this case I have no hesitation to hold that even if the respondent had the power to recall the petitioner without his consent from the leave granted to him preparatory to retirement such power ought not to have been exercised without giving the petitioner an opportunity to make his representations touching the matter; that is so because the order recalling the petitioner from leave does on the facts and circumstances of this case visit the petitioner with adverse civil consequences. The order Ext. P-6 in so far as it has proceeded to cancel the leave granted to the petitioner and to recall him compulsorily to duty without giving him any chance to make his representations to the Board is therefore illegal and void.
19. I may also add that even under Rule 65 of Chapter IX, Part I, of the Kerala Service Rules an officer can be recalled from leave only if the exigencies of service insist such action being taken. Nowhere in the counter-affidavit filed on behalf of the Board is it stated that the petitioner's recall to service was found to be necessary for any purpose other than to take disciplinary proceedings against him. That cannot be regarded, in my view, as an exigency of service of the type contemplated under Rule 65, particularly because there was nothing preventing the Board from taking disciplinary proceedings against the petitioner, even while he was on leave. It may be that if the Board had really formed an opinion about the existence of the jurisdictional fact it may not be open to this Court to investigate into the factual existence or otherwise of such exigency, but where the only plea put forward by the Board is that the impugned order has been passed on the ground that disciplinary proceedings had to be taken against the petitioner, the action taken in recalling the petitioner from leave preparatory to retirement cannot be regarded as one warranted by the terms of Rule 65 of Chapter IX, Part I of the Kerala Service Rules. On this ground also the first part of the order Ext. P-6 relating to the petitioner's recall from leave has to be held to be without jurisdiction.
20. In the result, I quash Ext. P-6 in its entirety and allow this writ petition. The parties will bear their respective costs.