Mahavir Singh vs Upper District Magistrate (D) and Others

Paritosh K. Mukherjee, J.—By means of the present writ petition, the Petitioner has challenged the order of compulsory retirement dated 3.1.1992, which is contained in Annexure 4 to the writ petition.

Unofficial English translation of the impugned order has been presented today. It appears from perusal of the impugned order that exercising power under clause (j) of Rule 56 of the Fundamental Rules, the Additional District Magistrate (Development), Muzaffarnagar, claiming himself to be appointing authority of the Petitioner, passed order in public interest that Sri Mahabir Singh, Village Development Authority (Gram Vikas Adhikari) will retire from service with effect from 3.1.1992 (afternoon) and he will be entitled to salary for three months at the same rate and allowance on which he was retiring.

Sri A. K. Singh, learned Counsel for the Petitioner submitted two points before me. His first contention is that the order of compulsory retirement has been passed by an authority who was not competent to pass such order, since he was not the appointing authority of the Petitioner. The second submission is that the order of compulsory retirement dated 3.1.92 was passed on the basis of adverse entry dated 22.6.90 awarding punishment in the shape of compulsory retirement, however, the copy of the said entry was never supplied to the Petitioner.

Having heard learned Counsel for the Petitioner and the learned standing counsel, this Court is of the view that order of compulsory retirement can be passed by Respondent-authorities on the basis of formation of opinion, may be, either on the recommendation of the review committee or on the basis of adverse report, and the principle of natural justice is not required to be compiled with before Issuance of order or service thereof on the concerned employee. Thus, I find no substance in the second submission of the learned Counsel for the Petitioner.

So far as first contention of the learned Counsel for the Petitioner is concerned, since the letter of appointment was issued by Additional Director, Agriculture, I am of the view that the Additional District Magistrate is not competent to pass order of compulsory retirement in exercise of power under Rule 56 (j) of the Fundamental Rules, as has been done on the facts and in the circumstances of the present case.

Although, learned Counsel for the Petitioner has not cited any decision either of this Court or of Supreme Court, this Court is not unmindful of an unreported decision of Calcutta High Court in T.K. Das v. Union of India 1980 (1) Cal (HC) 255, rendered by a Bench presided by Hon''ble Mr. Justice Murari Mohan Dutta (as His Lordship then was) on 9.9.1979, following the ratio of an earlier appellate court judgment in F.M.A. No. 94 of 1975 dated November 4, 1976 wherein it was held that order of compulsory retirement cannot be passed on the basis of report of disciplinary proceedings and the same was liable to be set aside.

In view of what has been said above, the writ petition is allowed and the Impugned order of compulsory retirement dated 3.1.1992 (Annexure 4) is quashed. The Petitioner is entitled to all consequential benefits, including salary and allowances. However, this will not prevent the Respondent-authorities to pass fresh order of retirement in respect of the Petitioner (by competent authority) after due formation of opinion, in accordance with law. Since the Petitioner was not granted any Interim order at the time of moving of the writ petition, the Petitioner is entitled to resume his duties within a week from today. Let a certified copy of this order be issued to the parties on usual charges within 24 hours.