Ashutosh Gupta vs Union of India (UOI)

Masud, J.—This is a suit for a declaration, inter alia, that the order of the Deputy Accountant General, Posts &; Telegraphs, Calcutta, dated January 14, 1952, asking the Plaintiff to retire on and from January 16, 1952, is ultra vires, illegal and void and also for a decree for Rs. 2,947-8-0 being the arrears of salaries or alternatively as damages payable to the Plaintiff. According to the Plaintiff, he was appointed on December 13, 1916, an upper division clerk in the office of the Deputy Accountant General, Posts & Telegraphs, Calcutta, under the Defendant at its office at No. 7 Koilaghat Street, Calcutta. Since the date of his appointment the Plaintiff was working in that capacity until 1948 when he was getting the maximum scale of pay @ Rs. 230 p.m. In or about 1948 the office of the Deputy Accountant General, Posts & Telegraphs, Calcutta, was divided for administrative reasons and a new office was formed out of it which was known as office of the Deputy Accountant General, Postal Life Insurance, Calcutta. The Plaintiff was taken to the new office on the same grade and scale of pay. In July 1949, the Plaintiff applied for leave for a period of four months. But the leave was granted only for two months and 24 days. During the period of leave the Plaintiff remained at Mirzapur, U.P., for reasons of health. But as he could not fully recover there, he applied for leave for a further period of 38 days. In or about November 15, 1949, the Plaintiff joined his duty when he was served with a charge-sheet alleging incapacity, inefficiency and failure to report to duty. In or about January 21, 1950, while the Plaintiff was on leave again he was informed by a letter that action was going to be taken for removing him from service on account of misconduct and inefficiency.

He was not allowed to join his office in April 1950, but subsequently he was allowed to continue his service from July 15, 1950, as all the previous charges against him were withdrawn. On November 27, 1950, he was again served with a fresh charge-sheet to which he submitted a written explanation. By a memo. No. 5984 dated December 14, 1951, the second charge-sheet was also not proceeded with. By another memo. No. 5983 dated December 13/14, 1951, the Plaintiff was informed that his period of absence without sanction had been commuted into leave without pay and he was allowed to continue in the office. By the said memo. No. 5984 dated December 14, 1951, the Plaintiff was also asked to show cause why he would not retire from service from December 15, 1951, on completion of his 55 years of age on the ground of his mental and physical unfitness reflecting on his efficiency for continued service. On December 29, 1951, the Plaintiff submitted a statement that no such order for compulsory retirement could be made without the certificate of a doctor and without proof of his inefficiency. According to the Plaintiff, he was fit to continue in service upto the age of 60 and, as such, the Defendant had no right to compel him to retire prematurely at the age of 55 years. The Plaintiff has also alleged that the Defendant''s conduct was mala fide inasmuch as baseless allegations were made against him and the order passed by the Defendant on January 14, 1952, for his premature retirement was illegal and malicious. The Plaintiff also claimed a sum of Rs. 2,947-8-0 being the amount earned by way of salaries or damages @ Rs. 328-8-0 for about nine months from October 8, 1949 to November 14, 1949 and from November 21, 1949 to July 14, 1950.

According to the Defendant there were legitimate grounds for which the Government decided to pass the said order for compulsory retirement on the Plaintiff. According to them, under provisions of the Fundamental Rules 56(b), the Plaintiff has no absolute right to continue in service until the age of 60 years. The Plaintiff was not only physically ill for a long time but also was absenting himself from duty although no leave was sanctioned to him. His failing health, his refusal to submit the medical certificate with his application for leave and his decision to leave Mirzapur wherefrom he applied for leave without informing the office of his new address have adverse effects on the work of the department and, as such, the authorities decided not to grant him extension after he reached 55 years of age. The charge-sheets that were framed against the Plaintiff were not proceeded with inasmuch as he was on the verge of retirement and he was allowed to continue on compassionate grounds. In any event, the authorities have their discretion to retain his service after the age of 55 years under Fundamental Rules 56(b) read with Audit Instructions No. 4, p. 116 of the Fundamental Rules issued by the Accountant General, Posts & Telegraphs (3rd ed., reprint). The issues settled are stated as follows:

(1) Is the order dated January 14, 1952, asking the Plaintiff to retire on and from January 16, 1952, void ?

(2) Is the Plaintiff entitled to a decree for Rs. 2,947-90 as set out in para. 14 ?

(3) What relief, if any, is the Plaintiff entitled ?

The Plaintiff has appeared personally and examined himself in support of the case. I may add that the Plaintiff has come to the Court with the help of his son and seems to be suffering from serious form of arthritis or some other disease as a result of which he cannot stand erect nor can he move or walk on his legs. He, however, could sit in a normal way and I allowed him to address the Court by sitting on the chair. He looks otherwise healthy. I have found him to be extremely irritable and short-tempered. He has submitted that all that he has got to say has been set out in a typed note comprising about 30 pages. According to him, as he has riot been able to engage a Solicitor or counsel, he wants to place the said written representation as his main contentions in the case. I have, however, allowed Mr. Mukherjee the Learned Counsel for the Defendant, to go through the said written statement and adjourned the matter for a day. On the next day of hearing I have asked him to refer to the material portions of the said representation and during his cross-examination he has been often answering Mr. Mukherjee from the said note. He insisted that his written argument should be returned. I, under the circumstances, have returned his note after having gone through it and have found out the following material points in his contentions:

(a) At all material times he was efficiently discharging his duties until July 1949 when he applied for four months'' leave from his home at Baidyabati, Chinsurah. He, on grounds of health, went to Mirzapur, U.P., and applied for a further extension of leave. After this application for extension of leave he went back to his home at Baidyabati. As he did not get any intimation from his office as to whether his leave was sanctioned or not, he attended his office. Thereafter, after working for 6 days he had to take leave again until April 1950 when he wanted to join. But for reasons best known to the department, he was asked to join in July 1950. From July 1950 he has been regularly attending his office until December 1951, when he was asked to show cause why he should not be allowed to retire at the age of 55 years.

(b) Charge-sheets were framed against him on the allegations of inefficiency, insubordination and physical and mental unfitness. But the department did not proceed with the enquiry into such allegations and was subsequently dropped. The department found the allegations against him absolutely baseless and, as such, allowed him to join in July 1950 without interruption. The allegations having been withdrawn against him, the department has no legitimate ground to pass the order for compulsory retirement on grounds of inefficiency and physical and mental unfitness.

(c) The very fact that the department allowed him to continue in service from July 1950 till the end of 1951 and also the fact that no allegation of inefficiency and unfitness was proved against him, he could not be asked to retire compulsorily at the age of 55 years unless he was found to be unfit on medical grounds by a doctor during the period preceding January 1952. On the contrary, there is a certificate of the Staff Surgeon, Fort William, dated July 11, 1950, whereby he has been found to be in good health. Reliance was placed by him on F.R. 56 which, according to him, gives him unqualified right to continue to work until he reaches the age of 60 years unless he is found to be inefficient.

(d) Reference has also been made to Rule 172 of the Manual of Standing Order of the Accountant General, Posts & Telegraphs (2nd ed.�corrected up to March 1, 1954, p. 93), on the basis of which it has been contended that a leave application should ordinarily be accepted as regular if a medical certificate by a registered medical practitioner is granted. The department was wrong in insisting on his examination by the Civil Surgeon, Hooghly, or by the Staff Doctor in the Fort William.

(e) In any event, he was asked to show cause why he should not compulsorily retire at the age of 55 years, but he has not been given opportunity to defend himself against the allegations of inefficiency and physical and mental unfitness and, as such, is denied natural justice.

(f) The department has acted mala fide in compulsorily retiring him inasmuch as the department acted on absolutely false materials. The department has acted on the advice of a Board of Members in refusing him to work upto the age of 60, but the constitution of such Board is not warranted in law.

In my opinion, the short point to be decided in this case is whether on a proper interpretation of Rule 56(b)(i) of the Fundamental Rules framed by the Government of India, the Plaintiff has a right to be retained in service till the age of 60 years. The relevant provisions of the Fundamental Rules reads as follows:

56(b)(i): A ministerial servant who is not governed by Sub-clause (ii) may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient upto the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the local Government.

(ii) A ministerial servant (1) who enters Government service on or after the 1st April, 1938, or (2) who being in Government service on the 31st March, 1938, did not hold lien or a suspended lien on a permanent post on that day, should ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public grounds which must be recorded in writing, and with the sanction of the local Government and he must not be retained after the age of 60 years except in very special circumstances.

F.R. 67: Leave cannot be claimed as of right. When the exigencies of the public service so require discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it.

The relevant provisions of Audit Instructions as set out in the Fundamental Rules at p. 116 reads as follows:

In view of the occurrence of the word ''ordinarily'' in F.R. 56 (b), a ministerial Government servant can be retired from Government service between the ages of 55 and 60 years on grounds other than of efficiency and in such a case he has no claim to be retained in service upto the age of 60 years, nor is he entitled to any compensation for loss of appointment. The purpose of F.R. 56 is not to confer upon Government servants any right to be retained in service upto a particular age, but to prescribe the age beyond which they may not be retained in service....

There is no dispute that the Plaintiff is a ministerial servant nor it is the contention of the Plaintiff that Rule 56(b)(i) has no application to his case. In fact, the Plaintiff has relied upon this Rule. The plain construction of this Rule 56(b)(i) read with the said Audit Instructions No. 4 is that a ministerial Government servant has no right to be retained in his post upto the age of 60 years although there is no question of inefficiency before the age of 55 years. The words "a ministerial servant may be required to retire at the age of 55 years show that the Government has got the right to retire him at the age of 55 years or may allow him to continue upto the age of 60 years. The words "should ordinarily be retained in services if he continues to be efficient, upto the age of 60 years" do not give a Government servant an unqualified right to remain in his post upto the age of 60 even if he is efficient. Further, the very fact that the words ''should'' and ''ordinarily'' have been used in the second part of this Rule indicate that there may be cases where the authorities may not retain the services of a. Government servant after the age of 55 years even if he is efficient. The language used is not that a ministerial servant shall retire at the age of 55 years nor it is stated that the Government shall retain the Government servant upto the age of 60 years if he continues to be efficient. It is true that the discretion is given to the authorities in the first part of the clause, or, in other words, the Government has power to retain the Government servant upto the age of 60 years if found efficient, yet, it must be stated that the Government has not the absolute power to refuse to retain him upto the age of 60 years if found efficient unless there are circumstances which justify such conclusion. The Government''s power to retain or not to retain a servant upto the age of 60 years must be circumscribed by some objective facts which enable the appointing authorities to decide in favour of or against the servant. Otherwise, there is no meaning in adding the second part of the Rule if the discretion is unfettered. The right of a Government servant to be retained even after the age of 55 years if he is efficient becomes academic or meaningless if the appointing authority exercises discretion arbitrarily or in a discriminating manner. The facts and circumstances on the basis of which the Government exercises its discretion to retain a servant after the age of 55 are justifiable, but the Court should not interfere with the decision of appointing authorities if there are some reasonable grounds in support of such decision. It should be remembered that, after all, the administrative authorities are the proper persons who are in a position to adjudge the efficiency or the merits of a Government servant better than anybody else. The service records, the confidential reports, the quality of the Government servant''s work, the regularity in attendance and even the temperament are relevant factors on the basis of which the appointing authority can decide the question of efficiency. The Court, however, should evaluate those facts from administrative point of view and would be hesitant to interfere with the discretion of the appointing authorities and would not substitute its own judgment on the merits of a servant unless the Government had acted arbitrarily, mala fide, or the conclusion arrived at is perverse or based upon palpably absurd or untrue allegations. In my opinion, the Rule, on a proper construction, does not give rise to an absolute obligation on a Government servant to be retained upto the age of 60, nor the Government has the absolute right to refuse his retention beyond the age of 55 years. Reliance may be placed on Kailash Chandra Vs. Union of India (UOI), where the Supreme Court considered an analogous rule, namely, Rule 2046/2 of the Railway Establishment Code, which is substantially identical with the Fundamental Rule 56(b). Das Gupta, J. in his judgment made the following observations:

This option to retain for the further period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option, the authority has to consider circumstances other than the question of efficiency also ; in the absence of special circumstances he ''should'' retain the servant; but what are special circumstances is left entirely to the authority''s decision. Thus, after the age of 55 is reached by the servant, the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient�Page 1349

The next point to be decided is whether the appointing authority in the instant case has exercised its discretion properly in refusing to retain the services of the Plaintiff; or in other words, I must find out whether there are some materials, or the ''special circumstances'', in the words of the Supreme Court, whereby the Defendant is justified in refusing his retention beyond the age of 55 years. I may now discuss the evidence to find out whether from the administrative point of view the decision of the Government can be justified. In my opinion, the following facts clearly show that the Government has not acted mala fide nor can it be said that the Government''s decision is unjustified:

(a) Admittedly, in or about July 1949 the Plaintiff applied for leave for a period of 4 months. Although the Plaintiff was granted leave only for 2 months 24 days the Plaintiff did not resume his duties. The Plaintiff''s case is that he could not join because of his illness. The Plaintiff did not make any formal application for his extension of leave on the prescribed form certified by a medical practitioner. During the period of leave the Plaintiff remained at Mirzapur, U.P., on grounds of health, but as he did not fully recover there, he applied for leave for a further period of 38 days. When he first applied for leave from Mirzapur, he intimated the office in his application from his Mirzapur address. But the Government''s reply to him could not be served on him because he left Mirzapur without informing the office of his new address. He was asked to be examined by the Civil Surgeon, Hooghly, but he refused to do so. Although his house is at Baidyabati, Chinsurah, he took the trouble of going to Howrah and, according to him, he got himself examined by the Civil Surgeon, Howrah. But it appears from a letter dated October 22, 1951, (Ex. 3) written by the Civil Surgeon, Howrah, addressed to his Advocate, Mr. P. K. Shome, that no medical certificate was ever granted to the Plaintiff (Plaintiff: Qs. 45-47, 86-89). His son, Souven Gupta, wrote a letter to the office on January 29, I960 (Ex. 4) where he has made the following statement:

I have to inform you that due to vertigo his brain has not been in order. So I am giving a reply to your above.

There is no change in his address. But Baidyabati being a village, where no good medical help is available, he has and had to come down to Howrah and Calcutta temporarily for that purpose.

As regards the question of his appearing before the Staff Surgeon, I have to inform you that, in the present condition of his health which is so bad, that we cannot allow him to go to Fort William for medical examination. However; he may go when he will be better.

There is no explanation why the Plaintiff did not get himself examined at that time either by the Civil Surgeon, Hooghly, or by the Staff Surgeon, Fort William, when he could come to Howrah and Calcutta.

(b) The confidential records of the Plaintiff are not satisfactory (Bhanja: Q. 9). It is true that the charge-sheets were framed against him, but the said charge-sheets were not proceeded with. The specific allegations set out in the charge-sheets might or might not have been proved against him if the departmental proceedings were taken against him. There is great force in the contention of the Plaintiff because^ as the department did not find strong enough to prove the case against him, they dropped the proceedings. But, assuming that to be true, the Court should not ignore the service records of a Government servant. The service records by themselves may not be sufficient to discharge a servant, but if the service records are not satisfactory enough, the appointing authority and the Court cannot overlook them at least for the purpose of deciding whether the servant should be retained or not after the age of 55 years. I find no evidence to support that the Government''s reliance on the service records is mala fide simply because the charge-sheets drawn against him were subsequently withdrawn. There is evidence to show that the Government decided to drop the proceedings on compassionate grounds, because he has rendered 37 years of service to the Government, and as he was not maintaining good health and was on the verge of retirement, the departmental proceedings were not continued against him. But, in any event, I feel that as the charge-sheets have not been proved, I should not make any decision on the basis of the allegations against him as set out in the charge-sheets. (Exs. 6, 7).

(c) He was on leave continuously for about 9 months excepting for 6 days in 1949 and 1950 (Bhanja: Qs. 21, 22) although application for medical leave was not duly made nor his medical leave was sanctioned (Plaintiff: Qs. 58, 30); such absence from duty does impair the work or the department (Bhanja: Q. 22). On his own evidence after attending the office for 6 days in 1949, he again absented himself from duty and on his own admission he did not attend the office till July 1950. The Plaintiff''s allegation is that he was not allowed to join duties in April 1950. Thus, the Plaintiff admits that he was again absent from January to April 1950 even; if his grievance is correct. The Plaintiff himself has admitted in para. 10 of the plaint, that the Plaintiff was staying in hospital for a long period. The illness of a person, I agree, is unavoidable and unfortunate and the Government servant should not be held responsible for his sudden illness. But, at the same time, it cannot be denied that a continuous illness of a Government servant does have effect on the work and services expected from the Government servant. The illness certainly by itself should not be a ground for his discharge or compulsory retirement before the age of 55 years. But it is certainly very material fact which can be legitimately taken into consideration by the appointing authority while exercising their discretion as to whether the services of such a servant should be retained or not after the age of 55 years. In this connection, reference may be made to Ex. 1 where the Staff Surgeon, Fort William, Calcutta, has granted him a certificate (Ex. 1), which shows that he was physically fit to carry on his duties. The certificate was obtained at a stage much later than the date when he had applied for leave, that is, on July 11, 1950. It is on the basis of this certificate, the department allowed him to join because, according to the certificate, he was not physically unfit to continue his job. This certainly helps the Plaintiff, but it cannot be said that, because he was physically fit in 1950, he must be allowed to be retained after January 1952 when he would reach 55 years of age. Nor does the production of certificate in 1950 for the purpose of resumption to duty obliterates the fact of Plaintiff''s refusal to be examined by Civil Surgeon, Hooghly, or Staff Surgeon, Fort William, in 1949.

(d) The Plaintiff was given sufficient opportunity to produce medical certificate and to get himself examined by the Staff Surgeon, Fort William, in 1949, but he had refused to do so. The Plaintiff relied upon Rule 172 of the Manual of Standing Orders, but it is clearly stated in the said Rule that a second medical opinion may be required only in exceptional circumstances. Assuming the Plaintiff''s contention is correct that at a later stage he did submit a certificate granted by a registered medical practitioner, the Government can insist for a second medical opinion. The Government did ask him for getting himself examined by the Staff Surgeon, Fort William, but he refused to do so. The Plaintiff, however, alleged that he could not be held to be inefficient on grounds of physical and mental unfitness inasmuch as he continued his job without any complaint from July 1950 to December 1951. He also supported his case by stating that the Government, without a medical report showing his unfitness to do work in 1950 and 1951, could not arbitrarily consider him inefficient or unfit to work upto the age of 60 years. There is great force in this contention if he would have been discharged before his age of retirement on grounds of medical unfitness. He was only asked to retire on the completion of his 55 years when the Government exercised their power to consider the merits of his case in recommending his extension upto the age of 60 years. The Government is not bound to get a Government servant medically examined just before he reaches the age of 55 years in every case if the Government otherwise decides against the retention of a particular servant.

(e) It is not correct to say that the Plaintiff has been denied any principle of natural justice because he was not given opportunity to defend himself. There is no question of the Plaintiff defending himself in the instant case, because no proceeding was continued against him, nor was he asked to be relieved of his job as a result of some proceedings. In any event, he has admitted in para. 8 of the plaint that he submitted a written explanation on every item. He was also asked to show cause in or about December 14, 1951, why he should not be retired from services from January 15, 1952, and he has also replied to such notice on December 29, 1951. The appointing authority did consider his explanation and decided not to retain his services after the age of 55 years. In any event, this is not a case where he has been relieved of his duty by way of punishment. In this connection, Mr. Manotosh Mukherjee, Learned Counsel for the department, relied upon the fact that the Plaintiff appeared before a Board consisting of three high officials who considered the merits of his case. But, in view of the fact that Mr. Mukherjee could not show me any original circular or notification under which the Board was constituted I do not want to give any importance to that part of the evidence.

For all these reasons, I am convinced that the Government has acted lawfully in exercising their discretion in retiring him at the age of 55 years.

The Plaintiff has also claimed a sum of Rs. 2,947-8-0 as arrears of salary for the period of his illness. In my view, leave cannot be claimed as a matter of right. Reference may be made in this connection to F.R. 67 of the Fundamental Rules, vol. 1, 3rd ed., p. 125. The discretion of the appointing authority to allow a leave with pay or without pay should not be interfered with by me unless the Plaintiff can show that the department has acted mala fide. On the contrary, the Government has granted him leave without pay to mitigate the loss which he might have suffered as a result of the break of service. The leave which he has enjoyed without sanitation has been commuted to leave without pay to enable him to resume his duty from July 1950. He worked there from July 1950 until he reached the age of 55 years and duly received his salary (Plaintiff: Q. 80). Accordingly, his claim on grounds of arrears of salary also must be rejected. It may be added here that in answer to Qs. 60, 61 and 62 Mr. Bhanja has admitted that the Plaintiff is entitled to get pension and provident fund if the necessary formalities are complied with by the Plaintiff. I am surprised that the Plaintiff did not apply for withdrawal of this amount which must be a substantial sum in view of the fact that the pension is due to him from the year 1952. I, however, hope that the Government will make the payment to this sick man if, of course, the latter chooses to ask for the same now.

Lastly, Mr. Mukherjee raised a point that the suit should be dismissed inasmuch as the Plaintiff has not proved the service of notice u/s 80 of the Code of Civil Procedure. As stated earlier, the Plaintiff has appeared personally, and naturally the Plaintiff has not technically proved the said notice. But, in view of the fact that the notice in fact had been duly disclosed, and that no issue was raised by the Defendant on this point, the objection is more of form than of substance and, as such, I reject Mr. Mukherjee''s said contention.

For all these reasons, the issues should be answered as follows:

Issue No. 1�No. Issue No. 1�No.

Issue No. 3�No. The suit is, accordingly, dismissed, but there will be no order as to costs.