L.C. Bawa vs V.K. Kapoor And Anr.
1987 Latest Caselaw 261 Del

JUDGMENT

Jadish Chandra, J.

(1) Rule D. B.

(2) The petitioner L.C. Bawa was holding the post of Assistant Engineer (Civil) as on 21-2-1986 on which date the impugned order directing his premature compulsory retirement under Fundamental Rule 56(j) was passed by the respondents. At the time of the impugned order the petitioner bad already attained the age of 50 years.

(3) Fundamental Rule 560) provides :__ Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice;

(I)if he is in Group A or Group B service or post in a substantive, quasi permanent or temporary capacity, or in a Group C post or service in a substantive capacity, but officiating in a Group A or Group B post or service and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;

(II)in any other case after he has attained the age of 55 years;"

(4) It was contended by Mr. Chandrachud learned counsel for the petitioner that while passing the impugned order the respondents had not considered the confidential reports of the petitioner and that the same had reported his conduct and performance in the job as 'good' and there was nothing adverse reported against him therein and that the order in question was passed entirely on irrelevant considerations. This contention of the learned counsel cannot be accepted. The perusal of the counter-affidavit filed by the respondents and deposed to by Shri Vishnu Swaroop Sharma Assistant Commissioner of Municipal Corporation of Delhi does go to show that the confidential reports of the petitioner were considered by the respondent before the passing of the order of premature compulsory retirement but the same was passed not on the consideration of the confidential reports of the petitioners, but otherwise on the basis of the over all assessment oF his work and conduct which was considered. It was further stated in the counter-affidavit that the 8 confidential reports could not be considered as authenticated record for judging the performance of the official. A long list of the regular departmental action cases against the petitioner has been filed along with their counter affidavit and the perusal thereof shows that he had been punished dc,partmentallv in a large number of those cases and the punishment awarded were in the form of stoppage of annual increments which ranged from one increment to six increments, as also record able warning, warning and censure and some of those punishments are also of the years 1984 and 1985 and the punishment of stoppage of six increments is dated 10-9-1985. So, obviously in view of these departmental enquiries and the punishments awarded to the petitioner therein the confidential reports pertaining to the petitioner wherein no stigma has been entered against him and which favored him throughout as a good officer, were rightly discarded by the respondents while passing the impugned order, as not authenticated record for judging his performance and conduct and the aforesaid departmental enquiries and punishments could be rightly taken into consideration by the respondents in passing the order of premature compulsory retirement, in public interest and to arrive at this conclusion the respondents had the absolute right under Fundamental Rule 56(j). So, we do not find any fault with the impugned order on this ground.

(5) The learned counsel for the petitioner then assailed the order in question on the ground that payment of three months' pay and allowances in lieu of three months' notice had to be made by the respondents simultaneously with the passing of the impugned order, which according to him was not done and which factor had the effect of invalidating this order. On the plain reading of Fundamental Rule 56(j) it is unmistakably clear that the order of retiring compulsorily an official can be passed only by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice which would mean that the giving of notice of not less than three months has to be at least three months prior to the passing of such an order or in the alternative in lieu of such a notice three months' pay and allowances have to be paid to the official sought to be retired prematurely either prior to the passing of such an order or at least simultaneously with the passing of such an order and if this is not done the order of premature compulsory retirement cannot be passed and in his view of the matter such an order would be invalid.

(6) In the case in hand admittedly no notice was given by the respondents to the petitioner before the passing of the impugned order, but an undated cheque in the sum of Rs. 6,677.25 was issued by Municipal Corporation of Delhi in favor of the petitioner. That cheque was drawn on the State Bank of India, Chandni Chowk branch Delhi and. on presentation, was dishonoured by the bank on 31-3-1986 for the reason that the cheque required to be dated. It, thus, means that the issuance of this cheque by the respondents to the petitioner was no payment to him towards his three months' pay and allowances, and the contention of the learned counsel for the respondents that it was the duty of the petitioner, while receiving this cheque from the respondents, to have asked the respondents to put a date therein, or at any rate after this cheque was dishonoured, he ought to have got it dated from the respondents and then presented the same to the bank for encashment, is fallacious' and cannot be accepted, as it was the duty of the respondents to give a proper cheque to the petitioner before or at the time of passing the impugned order and the defective cheque having been dishonoured by the bank on presentation was tantamount to non-payment. Even the subsequent rectification of the cheque would not cure the defect for the reason that the payment of three months' pay and allowances is mandated to be made before or simultaneously with the passing of the order of premature compulsory retirement. So, on this score the impugned order is invalidated. The payment of three months' pay and allowances to the petitioner is not a matter of his right to collect the same subsequently. There are a number of authorities supporting this view. M/s. National Iron and Steel Co. Ltd. and others v. The State of West Bengal and another Air 1967 S.C. 1206(1) dealt with the case of a workman who was retrenched and S. 25F of the Industrial Disputes Act provides that a workman employed in any industry should not be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice had empired, or the workman had been paid in lieu of such notice, wages for the period of the notice. That provision of law was not complied with inasmuch as the notice in that case was to the effect that the employee's services were terminated with effect from 17-11-1958 and that he would get one month's wages in lieu of notice of termination of his services and he was further asked to collect his dues from the cash office on November 20, 1958 or thereafter during the working hours. With those facts, it was held by the Supreme Court as follows :- "THAT is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with S. 25F, we need not consider the other points raised by the learned counsel. . . . "

(7) The same view was also taken in two other authorities of the Supreme Court reported as The State of Bombay and others v. The Hospital Mazdoor Sabha and others and The State Bank of India, v. Shri N. Sundra Money which also dealt with the question of retrenchment of a workman under S. 25F of the Industrial Disputes Act, 1947 and the time of payment of compensation to him.

(8) In the case Krishna Kamal Ghosh v. Union of India and others 1980(1) Slr 531(4), Fundamental Rule 56(j) recording compulsory retirement and the question of payment of three months' salary in lieu of notice was the subject-matter of consideration and it was held as follows by a Division Bench of the Calcutta High Court at page 532 :- "AS the petitioner appellant is being retired compulsorily under Rule 56(j) the respondent, in our opinion, must along with the order of compulsory retirement pay the officer three months' pay and allowances as admissible to him on the date when the order of compulsory retirement is made." It was also found in that case that the petitioner therein was entitled to pay and allowances for three months which would be atleast Rs. 300 more than which was paid to him and on that account also it was held that Rule 56(j) was patently violated. The order of compulsory retirement was, therefore, set aside.

(9) In Jamshed Newroji Sarkary v. The Zonal Manager, Food Corporation of India and another 1978 (1) Slr 471(5) Andhra Pradesh High Court was dealing with the same question with reference to Regulation 22(2) of Food Corporation of India (Staff) Regulation 1976 which reads as follows :-- "THE appropriate authority shall, if it is of the opinion that it is in the interest of the Corporation to do so, have the absolute right to retire category I, Ii, Iii and Iv employee after he has attained the age of 50 years. by giving him a notice or three months' pay and allowances in lieu of such notice." The language used in Regulation 22(2) is identical with the language of Fundamental Rule 56(j), While interpreting the Regulation 22(2) Andhra Pradesh High Court observed as follows : - "WHAT do these words by giving him a notice......of three months.. ...or three months' pay and allowances in lieu of such notice" imply ? Do they not insist on payment and service of order of termination simultaneously ? There are words like 'termination forth with by payment to the employee'. But the words 'the appropriate authority shall retire the Government Servant by giving him three months' notice or three months' pay and allowances in lieu of such notice' make it abundantly clear that the three months' notice or three months' pay and allowances in lieu of such notice are condition precedent for the retirement to follow. For the retirement to be effective, termination of service has to be simultaneously with the payment to the employee of the three months' pay and allowances."

 (10) In P. V. Subbaiah and others v. The Railway Board, New Delhi and others 1982 Labour & Industrial Cases 1523(6) Andhra Pradesh High Court was dealing with a similar question vis-a-vis Rule 2045(h) of Railway Establishment Code which 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 giving him notice of not less than three months' pay and allowances in lieu of such notice."  

 It was held as under :-    "IT is clear from the language employed that before or at the time when he is asked to retire, the employer must be given three months' pay and allowancess. The language used is in para materia with the language used in S. 25F of the Industrial Disputes Act." In that authority reliance was placed on M/s. National Iron and Steel Co. Ltd.'s case (supra).  

 (11) The same question was also decided similarly in A. Muthuswamy and others v. The Divisional Personnel Officer 1987(1) Slr 541(7) (at 557) and the order of compulsory retirement was held vitiated for non-payment of three months' pay and allowances in lieu of notice simultaneously with the service of the order of compulsory retirement.   

(12) It was also pointed out by Mr. Chandrachud the learned counsel for the petitioner and also conceded by the learned counsel for the respondents that the aforesaid amount of Rs. 6,677.25 of the said cheque did not include the conveyance allowance. It was contended on behalf of the petitioner that the non-inclusion of the conveyance allowance in this cheque amount of Rs. 6,677.25 was again a violation of Fundamental Rule 56(j) which had the effect of invalidating the impugned order. On the other hand, Mr. Agnani learned counsel for the respondents contended that conveyance allowance was not part of 'wages' or 'pey' and was. thus, not to be paid to the petitioner as after the passing of the impugned order he did not remain in service and could, thus, not incur any traveling expenditure and for that reason was not entitled to any conveyance allowance for three months. This contention of Mr. Agnani is erroneous as what is contemplated in Fundamental Rule 56(j) is not only 'pay' but also 'allowances' and so the contention that 'pay' and 'wages' did not' include 'traveling allowances', is irrelevant. The learned counsel for the respondents has not been able to show that the word 'allowances' used in F. R. 56(j) was not inclusive of 'conveyance allowance'. It was conceded at the Bar during the course of argument by Mr. Agnani learned counsel for the respondents that a fixed amount used to be paid to the petitioner by way of conveyance allowance at the rate of Rs. 110.00 per month. "Thus, the ascertainment of the conveyance allowance was beyond the pale of difficulty and this allowance was also payable to the petitioner prior to the passing of the impugned order or simultaneously with the passing thereof, and on this ground also the impugned order becomes invalid.

(15) In view of what has been stated above, the impugned order dated 21-2-1986 compulsorily retiring the petitioner from service is invalid and consequently quashed. The parties to bear their own costs.