UNION OF INDIA Vs. SADANANDA SEN

JUDGEMENT

(1.) This writ application is directed against and arises out of a judgment and order dated 16.6.98, passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal), Guwahati Bench in Original Application No. 69/91 (hereinafter referred to as the OA), whereby the order of compulsory retirement that was passed against the applicant/respondent, Sadananda Sen, on 7.12.88 issued by the Deputy Chief Accounts Officer (Traffic), was set aside. The facts leading to issuance of the aforesaid order are as follows. The respondent/applicant, at the relevant time was working as Accounts Asstt. in the North East Frontier Railway an posted at New Jalpaiguri. By order under No. AD/COM/ Review/Service/Policy dated 7.12.88, the respondent/applicant was compulsorily retired from service. The respondent submitted two representations, one on 22.6.89 addressed to the Financial Adviser & Chief Accounts Officer, NF Railway, Maligaon and the other one on 16.2.90 addressed to the General Manager, NF Railway, Maligaon. Failing to get appropriate remedy, the respondent/applicant presented an application under Section 19 of the Administrative Tribunal Act, 1988 in the Central Administrative Tribunal at Guwahati on 30.4.1991, challenging the order of his compulsory retirement dated 7.12.88, as illegal and without jurisdiction. The Railway authorities (petitioners herein) contested the application filed before the Tribunal and submitted their written statement denying and disputing the claim of the respondent/ applicant. The applicant filed a rejoinder some time in 1997 wherein it was stated that at the time of presenting the application under Section 19 of the Administrative Tribunal Act, he was not aware about the period of his qualifying service. That after presentation of the said application, the respondent/ application came across a letter under number PNO/AD/Con/D&A/46(SS) dated 24.4.96 from the Financial Adviser & Chief Accounts Officer, NF Railway, Maligaon, which contained the information that the applicant had only 28 years of qualifying service for pension. The learned Tribunal, upon considering the materials on record and on hearing the parties, allowed the application and set aside the order of compulsory retirement dated7.12.88. The learned Tribunal held that though the impugned order of compulsory retirement was passed under clause (h) of rule 2046 of the Indian Railway Establishment Code, the said rule was no longer in existence/ force on the date of passing of the impugned order and that a new rule had come into force with effect from March, 1988, viz. Rule 1803 of the Indian Railway Establishment Code, Vol. n, Sixth Edition 1987, and under the said rule, a person can be retired from service at any time after completion of thirty years of service qualifying for pension. The learned Tribunal relying upon an office note dated 16.3.98 issued by the Assistant Accounts Officer, held that the respondent/applicant did not complete thirty years of service qualifying him for pension and, therefore, the condition precedent for invoking the power of compulsory retirement was absent. The learned Tribunal also held that the impugned order of compulsory retirement suffered from the vice of non-application of mind on the ground that the impugned action was taken by the Railway authorities under Rule 2046 (old) which was non-existent on the date of passing of the impugned order. Hence the writ petition assailing the order of the learned Tribunal passed on 16.6.98 in OA No. 69/91.

(2.) Mr B.K.Sharma, learned senior counsel appearing on behalf of the Railway/petitioners, assailed the order of the Tribunal both on facts as well as in law. Mr Sharma submitted that the application presented before the Tribunal did not contain any such plea of whatsoever form, to the effect that on the date of passing of the impugned order of compulsory retirement, the railway employees concerned did not complete thirty years of qualifying service. The OA was admitted on 2.5.1991 and the same was dismissed for default on 16.1.1995 by a reasoned order. After dismissal of the OA, the applicant/respondent made correspondences with the Railway authorities for settlement of his retiral benefits. By his letter dated 18.9.95 addressed to the Railway authority, the applicant/respondent gave necessary certificate towards acceptance of compulsory retirement and prayed for final settlement of the final dues. The OA was thereafter restored to file by an order dated 262.97 and the same was again dismissed for default on 1.8.97. The application was again restored on 17.3.98. After restoration of the application, the applicant/respondent filed a rejoinder to the written statement filed by the Railway/respondents (petitioners herein) enclosing therewith a copy of the communication dated 24.4.96, issued by the Financial Adviser & Chief Accounts Officer, Maligaon, stating inter-alia that on review of the personal case and the settlement papers of the applicant/respondent, it was found that the qualifying service of the applicant for pension was to the extent of twenty-eight and a half years and not 32 years as claimed by the applicant/respondent. The Railway authority/petitioners in this writ petition has stated that no amendment was brought to the original application and all the aforesaid facts were brought by way of a rejoinder and after eight years of his copulsory retirement. the applicant/respondent raised the issue of qualifying period of service for pension.

(3.) Mr B.K. Sharma, the learned senior counsel for the petitioners, submitted that the letter dated 24.4.96, issued from the office of the Financial Adviser & Chief Accounts Officer (FA&CAO in short), NF Railway (petitioner No. 2), did not in any way affect the order of compulsory retirement of the applicant/respondent. That the Railway authorities passed the impugned order on consideration of all the aspects of the matter on being satisfied that the applicant/respondent on the date of passing of the impugned order of compulsory retirement, completed thirty years of service qualifying him for pension. The aforesaid position could not have been altered or affected by a letter written by the Asstt. Accounts officer, New Jalpaiguri. Referring to the materials on record, Mr Sharma, the learned counsel for the petitioners, submitted that the subsequent note clarified the position and the learned Tribunal fell into error in overlooking the real aspect of the matter. The learned counsel appearing on behalf of the petitioner/Railway submitted that assuming there was any wrong recording of a provision of Rules in the impugned,order, ipso facto it cannot invalidate an order passed by the authority within its competence. The learned senior counsel lastly submitted that under the circumstances, the learned Tribunal fell into error in setting aside an unlawful order.