ASHUTOSH GUPTA Vs. UNION OF INDIA (UOI)

JUDGEMENT

(1.) 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.

(2.) 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:

(3.) 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: