DAYAL SARAN SANAN Vs. UNION OF INDIA

JUDGEMENT

(1.) DAYAL Saran Sanan (hereinafter called the petitioner) was appointed as a Sub-Divisional Officer on September 20, 1941, in a temporary capacity. By order, dated March 23, 1950 (Annexure 'a' to the return read with item 39 of list 'g' attached thereto), the petitioner was confirmed with effect from August 15. 1947. The result was that with effect from August 15, 1947, the petitioner became a permanent Superintendent Grade II in the Military Engineering Service. Under order, dated September 30, 1950 (Annexure 'b' to the return), the petitioner, who had earlier been promoted to grade I was reverted to grade II. It is stated that he had subsequently been removed from service, but in pursuance of the decree of a competent Civil Court, he was reinstated by order, dated November 17, 1956 (Annexure 'e' to the return), and the earlier notification cancelling his permanent appointment was withdrawn. On October 24, 1962, the petitioner submitted an application (copy Annexure A-2 to his replication) to the Commander Works, engineer, Chandigarh, for the grant of four months' leave preparatory to retirement from January 1, 1963, to April 30, 1963, as he was completing the age of fifty-five years on May 14 in that year. In Government's reply, dated December 28, 1962 (Annexure 'a-3'), the petitioner was informed that the leave applied for by him could not be granted as the age of compulsory retirement of Central government servants had been raised from 55 years to 58 years. On December 24, 1964, an order was issued by the Chief Engineer, Western Command, Simla (copy Annexure 'h' to the return) directing the transfer of the petitioner from the establishment of the C. W. E. Chandigarh to that of the Chief Engineer, Delhi and rajasthan Zone, Delhi Cantt. It was directed that the move should be completed forthwith. The petitioner's request to cancel his transfer wag admittedly refused. In the meantime, however, he continued on the pay roll of the Chief Engineer, chandigarh, and admittedly received all the emoluments due to him for the period ending January 31, 1965. In confidential letter, dated February 13, 1965 (Annexure H-I to the return), the chief Engineer, Chandigarh, wrote to the Chief Engineer, Western Command, simla, that the petitioner had not complied with the order of transfer, that his application for casual leave had not been sanctioned, and though he had been relieved of his duties on February 6, 1965, he had not collected the movement order and left station, i. e. , he left Chandigarh on that day (February 6, 1965 ). In paragraph 6 of the said communication. It was stated that the petitioner was expected to return on February 13, 1965, but he was being struck off the strength. In the last paragraph of the letter, dated February 13, 1965, the Chief engineer, Chandigarh, stated that the action of the petitioner showed indiscipline and this would be reflected in his report. The petitioner submitted an application, dated February 19, 1965 (Annexure 'p' to the return which corresponds to annexure 'a-l' to the replication), to the Engineer Incharge Army Headquarters, new Delhi, wherein he complained that his transfer had been wrangled by some interested person as he had demanded an open Court of enquiry against a particular contractor on certain allegations. He then added in the application that he was to retire in May, 1966, after availing of his leave preparatory to retirement with effect from January, 1966, and he should not be disturbed from Chandigarh as one of his daughters was studying in M. A. English, and the second one in higher Secondary at this place. He also requested for an Investigation into the alleged loss which the State had suffered on account of the alleged conduct of the contractor. The petitioner followed up the abovesaid communication with his letter, dated February 23, 1965 (Annexure 'n' to the return) wherein he again stated that he intended to avail of his leave preparatory to retirement with effect from january, 1966, and he prayed that the decision to transfer him be reconsidered and he may be allowed to continue at Chandigarh, failing which he might be granted leave preparatory to retirement due to him as his family circumstances did not permit him to leave his family alone at Chandigarh. The petitioner then wrote letter, dated June 10, 1965, to the Chief Engineer, Delhi Cantt that he had not so far received any movement order nor was he prepared to accept one as his transfer from Chandigarh had been made mala fide. It was added that the question of the petitioner's resuming duties at Delhi did not arise as he had referred the case to the Engineer In Chief, New Delhi, and to the Ministry of defence, and as the direction for his transfer was contrary to the order of the government of India because the petitioner was about 57 years old. In reply to the petitioner's complaint against the contractor, he was informed by the Chief Engineer, Western Command, Simla, in the latter's memorandum, dated september 16, 1965 (Annexure 'q' to the return) that a departmental Court of enquiry had been ordered to investigate into the allegations made by the petitioner, but that the Court of enquiry had found that there was no substance in the petitioner's complaint. It was mentioned in the memorandum that it had been reported that the petitioner had been insolent and insubordinate to his superiors, and had not cared to study the provisions of the contract in question. In paragraph 3 of this communication, it was mentioned that the petitioner had been struck off the strength of Garrison. Engineer Lalru, on February 12, 1965, on permanent posting to the Chief Engineer, Delhi and Rajasthan Zone, but that the petitioner had not reported for duty at his new formation till then. At that stage the petitioner filed Civil Writ 2896 of 1965, in this Court on November 22, 1965. In that writ petition, the history of the case upto the reinstatement of the petitioner consequent upon the decision of the litigation in the Civil Court was mentioned, and it was then stated that though he had been reinstated, no order had been passed regarding the payment of the salary or other allowances for the period during which he had remained under order of dismissal. He then stated that in reply to petitioner's notice under Section 80 of the Code of Civil Procedure, he had been informed that he would get his arrears of pay and allowances which were within time, but that the salary etc. for the period commencing from November 1, 1950 to October 31, 1953, had become barred by time. He complained that a sum of Rs. 9,120/- due to him for the abovesaid period had been withheld from the petitioner. The petitioner complained that under Rule 193 (2) (b) (1-a) of Chapter 10 of the Indian Civil Services and Military Officers Rules, the petitioner was entitled to get arrears for the entire period beginning from the date of the order of his dismissal up to the date of reinstatement. It was prayed by the petitioner that the Union of India and the Chief Engineer, Western Command, Simla, be directed to decide his case of arrears of emoluments under the above-said rules; and to pay him the sum of Rs. 9,120/-as detailed above. No other complaint was made in the writ petition, and no other specific relief was claimed therein. The writ petition was dismissed in limine by the order of the Motion Bench (Falshaw. C. J. , and Khanna, J.), dated November 23. 1965.

(2.) RESUMING the narrative of the facts leading to the filing of the present petition, it may be stated that on January 29, 1966, the Chief Engineer, Delhi Cantt. , sent a memorandum to the petitioner (copy Annexure 'j' to the return) wherein it was stated that he was informed (SOS) by Garrison Engineer, Lalru, on the afternoon of February 12, 1965, that he was permanently posted to the office of the Chief engineer, Delhi and Rajasthan Zone, Delhi Cantt. , but he had not reported for duty till then. It was added in the communication that for the aforesaid reason, the petitioner had no lien on his appointment under Article 189 of the Civil Service regulations. He was advised in the last paragraph of the letter to resume duty by the 15th of February, 1966, at the latest in his own interest. The petitioner ultimately sent his reply, dated March 1, 1966 (Annexure 'k' to the return corresponding to Annexure 'a-4' to the replication) wherein he again referred to his letter, dated February 23, 1965, to the Chief Engineer, Western Command, simla, and his letter, dated June 10, 1965, addressed to the Chief Engineer, Delhi cantt. The petitioner reiterated in his letter Annexure 'k' that the question of his resuming duty at that stage did not arise at all, as he was over 55 years of age and was going to complete the age of 58 years on May 14, 1966. He claimed that in accordance with certain instructions of the Government of India, he stood retired on October 9, 1965, as he had given a notice with effect from June 11, 1965, in his letter, dated June 10, 1965. The petitioner prayed in the said communication that his pension papers may be completed and said that he would attend the office for signing the same as and when intimated to him by the Chief engineer, Western Command. In confidential letter, dated March 15, 1966, from the Chief Engineer, Western Command, to the Engineer-In-Chief, Army headquarters. New Delhi, information regarding various communications sent by the petitioner to the office of the Engineer-in-Chief was furnished. In the last paragraph of the communication, it was stated that the insolence and insubordination of the petitioner had been taken notice of prior to October, 1964, for which he had been warned verbally. The entire communication related to the petitioner's complaint against the contractor. On May 30, 1966, the Chief engineer, Western Command, wrote to the Chief Engineer, Delhi Cantt. (copy annexure 'm' to the return), in connection with the posting/transfer of the petitioner. Inter alia as follows:--

(3.) IN the written statement filed in this case by Shri K. L. Bawa, Superintending engineer, Commander Works Engineer (Projects), Chandigarh, on behalf of the respondents (the Union of India, the Chief Engineer, Western Command, Simla, the Chief Engineer, Chandigarh, and the Commander of Works, Chandigarh), reference has been made to the various communications of which I have already given the details and the impugned order refusing to grant pension and gratuity to the petitioner has been justified in the following words:-