Arun Kumar Dutta, J.
1. This writ application under Article 226 of the Constitution of India the writ petitioner Rampada Sinha (hereinafter referred to as petitioner) has prayed the Court for issue of a writ of and/or direction in the nature of mandamus commanding and directing the Respondents each one of them, their agents, servants, subordinates and assigns to forthwith cancel, withdraw and/or rescind the purported notice dated October 8, 1986, and October 7, 1987, contained in Annexure 'C' and 'J' hereof and to refrain from giving any effect and/or further effect and/or taking any step for further steps in terms thereof and/or thereunder and to act in accordance with law, 'further directing them not to give any effect or further effect and/or take any step or further step in terms thereof or seek to retire him (petitioner) before completion of the age of 60 years, along with the other reliefs prayed for therein, for the reasons stated and on the grounds made out therein.
2. It is contended by the petitioner that as there was a steady decline of demand with consequential fall in production of Messrs. Sen Raleigh Industries of India Limited at Kanyapur and the said Company continued to incur losses, the management of the said Sen Raleigh Limited, along with all its associates and subsidiary unit, was taken over by the Central Government under the provisions of the Industries (Development and Regulation) Act, 1951 in the month of September, 1975, by an Ordinance promulgated by the President of India the undertakings of Sen Raleigh Limited were taken over by the Central Government under the Hind Cycles Limited and Sen Raleigh Limited (Nationalisation) Ordinance, 1980. The said Ordinance was replaced by the Hind Cycles Ltd. and Sen Raleigh Ltd. (Nationalisation) Act, 1980. The service condition of the employees of Sen Raleigh Ltd., whose services were transferred to and contained in the Cycle Corporation of India Ltd. (for short corporation), was protected by Section 13(1) of the same Act, by a Notification issued under Section 6 of the said Act the undertakings of Sen Raleigh Ltd. were transferred to and vested in the said corporation with effect from October 25, 1980.
3. The petitioner, who was undisputedly born on November 1, 1929, was appointed as Personnel Manager of the said Corporation on probation for a period of one year on April 20, 1982, His services were confirmed with effect from July 1, 1983 on successful completion of his probationary period. He was informed by the Secretary of the Corporation by the impugned letter dated October 8, 1986 that the date of his retirement falls on November 1, 1987 (obviously on his attaining 58 years of age). The petitioner had thereafter requested the Secretary of the Corporation by his letter dated October 16, 1986 for not giving effect to the aforesaid letter dated October 8, 1986 for the reasons stated therein. The Secretary of the Corporation in his reply thereto by his letter dated February 5, 1987 had informed the petitioner that Officers recruited by the Corporation are governed by the Rules of the Public Sector Undertakings where the retirement age is 58 years. The Petitioner had thereupon made a prayer to the Chairman-cum-Managing Director of the Corporation by his letter dated August 17, 1987 requesting him to quash the aforesaid letter of the Secretary dated February 5, 1987 and allow him (Petitioner) to continue in service. But his request was not acceded to. Hence the instant Writ Application.
4. It is contended by the Writ petitioner that the action of the Corporation asking him (Petitioner) to retire on November 1, 1987 on his attaining the age of 58 years is discriminatory, arbitrary, illegal and whimsical inasmuch as the other Officer of the Company had retired on attaining the age of 60 years. Instances of such Officers were sought to be given by the Petitioner by annexures 'G', 'H' and 'I' to the Writ Petition and in Paragraph 6 of his Supplementary Affidavit affirmed on July 14, 1995. It is also contended in ground V to the Writ Application that the action of the Corporation was mala fide and vindictive, which had resulted in violation of his Constitutional rights guaranteed under Articles 14, 16 and 21 of the Constitution of India.
5. The Writ Petition is resisted by the Respondent-Corporation by filing Affidavit-in-Opposition. The Petitioner's allegation that the issue of the impugned letter dated October 8, 1986, being Annexure 'C to the Writ Application, was discriminatory, arbitrary, illegal, whimsical, mala fide and vindictive is denied by the Respondent-Corporation in their Affidavit-in-Opposition and Supplementary Affidavit filed in the matter. And having regard to the materials on record, the Petitioner could not substantiate that any employee of the Corporation appointed after the nationalisation had retired at an age beyond 58 years. It appears from the documents annexed to the Affidavit-in-Opposition and the Supplementary Affidavit filed by the Respondent-Corporation that one, A.B. Mukherjee, Secretary, and T.R.Ahuja, General Manager of the Corporation, who were appointed after the Nationalisation, had been appointed temporarily on ad-hoc basis in view of the necessity of the Corporation after their retirement on attaining 58 years of the age. The same could hardly amount to a discriminatory practice on the part of the Respondent-Corporation.
6. Upon hearing the submissions of the Learned Advocates for both sides and perusal on the materials on record, it appears that there are admittedly, the following two retirement ages for the two categories of employees of the Corporation:
(i) 60 years for those employees appointed before the nationalisation whose services were transferred to the Corporation upon nationalisation; and
(ii) 58 years for those employees who were appointed after the date of nationalisation and vesting on October 25, 1980 under the aforesaid Nationalisation Act.
7. The aforesaid fact does not seem to be in dispute and is also corroborated by Annexures 'D' and 'E' to the Supplementary Affidavit filed by the Respondent-Corporation, affirmed on August 7, 1995.
8. The question which at once emerges for consideration is whether the aforesaid two retirement ages, one at 60 years and the other at 58 years for the aforesaid two stages of employees of the Corporation, one appointed prior to the nationalisation and the other appointed after the nationalisation, is discriminatory and hit by Article 14 of the Constitution of India. In line with the decision of the Supreme Court of India in the Life Insurance Corporation and Anr. v. S.S.Srivastava and Ors., (1987-II-LLJ-414) in the facts and circumstances therein, it also seems to me, in the facts and circumstances of the instant case before us, that there is no similarity between those recruited by the Sen Raleigh Company Limited before the nationalisation and those recruited by the Corporation after the nationalisation. The fixation of the petitioner's age of retirement at 58 years, appointed after the nationalisation, in such circumstances, could not, therefore, be challenged by him. And, keeping another decision of the Supreme Court in B.S. Yadav v. Central Government of India, 1987 II LLN 423 in mind, classification of the aforesaid two categories of employees of the Corporation fixing 60 years of age for those recruited subsequent to the nationalisation (on October 25, 1980), in the facts and circumstances of the instant case, cannot be held to be invalid and unconstitutional, as the same satisfies the tests of valid classification laid down under Articles 14 and 16 of the Constitution of India.
9. The next question cropping up for consideration is whether the fixation of 58 years as the age of retirement in the case of the employees who entered the service of the Corporation after the nationalisation is unreasonable or arbitrary. As observed by the Supreme Court in the decision in Life Insurance Corporation of India and Anr. v. S. S. Srivastava and Ors. (supra) at paragraph 24 thereof, the Court, while dealing with this question, can take judicial notice of the different ages of retirement prevailing in the several services of India. In almost all the Public Sector Corporations, Central Services and State Services 58 years age is considered to be a reasonable age at which Officers can be directed to retire from their service. So the determination of 58 years as the age of superannuation, by itself, cannot be considered to arbitrary.
10. The Respondent-Corporation is stated to be consistently following the retirement age in respect of its employees appointed after the nationalisation at 58 years in line with the retirement age of the employees in the Public Sector Undertakings, as appearing from the Annexures 'B' and 'C' to the Affidavit-in-Opposition affirmed on December 9, 1987 and the Annexures 'E' to 'G' to the Supplementary Affidavit and Annexure 'A' to the Affidavit-in-Opposition affirmed on December 8, 1995. The action of the Respondent-Corporation asking the Petitioner to retire on November 1, 1987 on his attaining the age of 58 years could not, therefore, be termed to be discriminatory, arbitrary or illegal.
11. The Learned Advocate for the Petitioner had referred the decision in Mahinder Singh Gill and Anr. v. Chief Election Commissioner, : [1978]2SCR272 in support of his contention. But the said decision does not seem to be applicable to the facts and circumstances herein as the Corporation, being a Public Sector Undertaking, appears to be following the retirement age applicable to the employees' in the Public Sector Undertakings. The Annexures 'C' and 'J' to the Writ Application, which are under challenge in the Writ Application, are neither required to contain any reason therefor. There is no dispute in the instant case before us that the Petitioner had attained the age of 58 years on November 1, 1987.
12. In view of the discussions above, the Petitioner's contention that the action of the Corporation asking him to retire on November 1, 1987, on his attaining the age of 58 years, cannot clearly be held to be discriminatory, arbitrary, whimsical and unreasonable, as sadly contended by him.
13. The Petitioner had feebly sought to make out a case of mala fide by making a bald allegation. No specific case of mala fide appears to have been made out by him. The requisite particulars to make out a case for mala fide are also wanting in the Writ application. As held by the Supreme Court in E. P. Royappa v. State of Tamil Nadu and Anr., (1974-I-LLJ-172) we must not overlook that the burden of establishing mala fide is very heavy on the person who alleges it. The allegations of mala fide are often more easily made than proved; and the very seriousness of such allegations demands proof of a high order of credibility, which is remarkably wanting in the instant case.
That being so, the Petitioner's prayer for directing the Respondent-Corporation to withdraw/cancel/rescind the impugned letters dated October 8, 1986 and October 7, 1986 being Annexures 'C' and 'J' to the Writ Application could not clearly be entertained.
14. That apart, the Petitioner has, admittedly, joined the Corporation in terms of the appointment letter dated April 20, 1982 being Annexure 'A' to the Writ application, after the nationalisation in terms thereof. In terms of the said letter the petitioner was offered the appointment as Personnel Manager at an initial basic pay of Rs. 2075/- only per month, also clearly indicating therein that the 'other allowances and benefits are as per Company's Rules.'
It is contended by the Learned Advocate for the Respondent that the Service condition of the employees of the Sen-Raleigh Company Ltd., whose services were transferred to the Corporation after the nationalisation, was protected by Section 13(1) of the Nationalisation Ac(. As already indicated above, the Annexures 'D' and 'E' to the Supplementary Affidavit affirmed on behalf of the Respondent-Corporation on August 7, 1985, would clearly show that the retirement age of the members of all categories of the employees of Sen- Raleigh and Co. Ltd. was fixed at 60 years in terms of the Circular dated January 14, 1961. The employees of the said Company, whose services were transferred to the Corporation, were to be governed by the Standing Orders, service conditions relating to leave, gratuity superannuation and other matters, which would have been applicable to them in the said Companies prior to the nationalisation, until the same were changed in terms of the subsequent Circular dated October 29, 1980. It was further indicated in the said Circular dated October 29, 1980 that pending switching over the service conditions of the Public Sector Undertakings in all respects, the Corporation would follow their retirement age in respect of persons appointed after nationalisation (on October 25, 1980) fixing their retirement age at 58 years. There is nothing in the Annexure 'A' to the Writ Application, the offer letter to the Petitioner, that he was to retire on his attaining the age of 60 years. Per contra it had been clearly indicated thereon that the other allowances and benefits (obviously including retirement benefits) would be as per the Company's Rules. In the absence of any material on record to show that the Petitioner, appointed after the nationalisation, was to retire on his attaining the age of 60 years, he could not be said to have acquired a legal right to retire on his attaining the age of 60 years, as claimed by him. There is nothing either on record to indicate that there (sic) was any corresponding legal duty cast upon the Respondent-Corporation to allow him (Petitioner) to continue in service till he attained the age of 60 years. The Petitioner has sought for issue of a Writ of Mandamus in terms of the prayers made in the Writ Application. But Mandamus lies to secure the enforcement of a public or statutory duty by the authority concerned. As already indicated above, the petitioner could not be said to have derived any legal right to obtain a Writ of Mandamus, as prayed for. As noted, there must exist a legal right in the Petitioner and a corresponding legal duty cast upon the respondent for enforcing the same by means of Mandamus. The Petitioner cannot certainly seek the relief, prayed for, merely on the doctrine of legitimate expectation that he could continue in service till attaining the age of 60 years, enjoyed by the employees of the Company, appointed prior to the nationalisation.
15. It would also be pertinent to note the conduct of the Petitioner in filing the Writ Application. By the impugned letter dated October 8, 1986, being Annexure 'C' to the Writ Application, the Petitioner was advised that his date of retirement falls on November 1, 1987 (on his attaining the age of 58 years), more than a year before his retirement in terms thereof His representation thereagainst dated October 16, 1986, being Annexure 'D' to the Writ Application, was disposed of, and he was informed by the Respondent-Corporation by letter dated February 5, 1987, being Annexure 'E' to Writ Application, that he, being recruited by the Corporation after the nationalisation, would naturally be governed by the Rules of Public Sector Undertakings where the retirement age is 58 years. Despite the receipt of the aforesaid letter dated February 5, 1987 in time, he (Petitioner) had long been sleeping over the matter till August 16, 1987. On August 17, 1987 he appears to have made another prayer before the Chairman-cum-Managing Director of the Corporation for quashing of the Order/letter of the Secretary dated February 5, 87 (vide Annexure 'F' to the Writ Application). He did not seek any relief in the matter before any competent Forum even though he was informed by the aforesaid letter of the Corporation dated February 5, 1987 that his retirement age is 58 years. He moved the instant Writ application on October 30, 1987, only two days' prior to his retirement on November 1, 1987, with serving deliberation with the ulterior object of continuing in service on the basis of an interim order sought for from the Court. His purpose was achieved by the interim order passed by the Court on October 30, 1987. The said interim order was slightly modified by the subsequent order dated November 18, 1987. On an Application filed by the Respondent-Corporation for vacation/modification of the interim order passed in the matter, the Court by order dated November 27, 1987 has directed that the matter would be heard on Friday next. 'In the meantime, the Petitioner will be entitled to his salary, but he will not attend the Office until further order of the Court'. which order still stands. The Petitioner, accordingly, went on receiving his salary etc. till attaining the age of 60 years without rendering any service to the Respondent-Corporation by virtue of the aforesaid interim order, even though the question as to whether he would retire on his attaining the age of 58 years or 60 years was yet to be decided in the writ Application. The aforesaid delay in filing the instant Writ Application without issuing any explanation therefor would at once seem to give the clearest and conclusive indication that he (sic.) was only intent upon continuing in service or receiving salary till attaining the age of 60 years on the strength of interim order, sought from the Court. It was, accordingly, submitted by the Learned Advocate for the Respondent-Corporation that the Writ Petition is liable to be dismissed and the Petitioner should be directed to return the amount received by virtue of the interim order passed in the matter, as claimed in the Supplementary Affidavit filed by them, or give them the liberty to appropriate his retiral benefit to the satisfaction of their claim, and take steps for recovery of the balance from Petitioner. It was contended by the Respondent- Corporation that they would not have paid salary to the Petitioner month by month since after he had attained the age of 58 years in the absence of the aforesaid interim orders, more particularly, the interim order passed on November 27, 1987, without rendering any service whatsoever. The said contention of the Petitioner cannot be lightly discarded for the reasons I shall presently discuss.
16. As held by trie Gujarat High Court in Vrajlal v. Jadavji : AIR1972Guj148 , the basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical-procedure of irregularities. Rules or procedures are the handmaid of justice and not the mistress of the justice. Ex debito justitae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which require emphasis.
17. It is also a well settled position in law that an act of Court should not injure any of suitors. The Privy Council in the well known decision of Alexander Rodger v. The Comptori 'D' Escompte De Paris 1871 3 PC 465 observed:-
'One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression 'act of the Court' is used, it does not mean merely the act of the primary Court, or any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in Courts.'
18. The Supreme Court has also observed in Union Carbide Corporation, etc. etc. v. Union of India, etc. etc. : AIR1992SC248 thereof that there is always an inherent jurisdiction to order restitution a fortiorari where a party has acted on the faith of an order of the Court. A litigant should not go back with the impression that the judicial-process so operated as to weaken his position and whatever it did on the faith of the Court's order operated to its disadvantage. It is the duty of the Court to ensure that no litigant goes back with a feeling that he was prejudiced by an act which he did on the faith of the Court's order. Both on principle and authority it becomes the duty of the Court as much moral as it is legal to order refund and restitution.
19. In view of the discussions above and in the light of the aforesaid judicial pronouncements the writ Petition should clearly fail, as it must; and the Respondent-Corporation would be entitled to an Order for restoration, refund and/or adjustment of the amount already paid to the Petitioner since after he had attained the age of 58 years on the strength of the aforesaid interim orders passed by the Court which had been complied with by them (Respondent- Corporation) on the faith of the Court's aforesaid Orders. It would also be pertinent to note in this context that they had also filed application for vacating the interim Order passed by the Court and also filed an appeal against the Order dated September 6, 1991 passed by the Court directing payment of retiral benefit to the petitioner, claiming that the Corporation is entitled to adjust Petitioner's retiral benefits towards their claim; and on their appeal, the said Order dated September 6, 1991 for payment of retiral benefits to the Petitioner was set aside.
20. In the result, the writ application be dismissed. The Respondent-Corporation shall be at liberty to appropriate the petitioner's retiral benefit to the satisfaction of their lawful claims, and may as well take steps for recovery of the balance, if any, according to law.
21. In the facts and circumstances of the matter, I direct the parties to bear respective costs of this hearing.
22. Later, December 22, 1995. Let a plain copy of the operative portion of this judgment and order duly counter-signed by the Assistant Registrar (Court), be given to the learned Advocate for the Respondents upon usual undertaking, as prayed for.