Punjab State Vs. Mohan Singh Mahli - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the case of the employee was that the said termination was penal and the safeguards provided by article 311 of the constitution were attracted which had not been satisfied.order1. this is an appeal under clause x of the letters patent filed by the state of punjab against the decision of p.c. jain, j. by which he accepted a petition under articles 226 and 227 of the constitution filed by mohan singh malhi, respondent.2. the respondent joined service in the united punjab as a veterinary assistant surgeon on 1st december, 1933. later, on 4th july, 1939, he was taken in the punjab veterinary service, class ii. by direct recruitment by the public service commission and posted as deputy superintendent (civil), veterinary department. he was confirmed on 4th july, 1941. he was then promoted to the punjab veterinary service, class i, with effect from 5th august 1912, and confirmed as such on 5th august, 1944. subsequently, he held the post of the director of animal husbandry and warden of fisheries, punjab, from 16th march, 1957 to 14th august, 1959. there-after, pritam singh brar was appointed director in his place. when the said pritam singh brar completed the age of 56 years, the respondent was again ap-pointed director of animal husbandry, and he took over charge of this post on 4th august, 1965. he continued as such, when on 2nd september, 1967, he received the impugned order for his retirement on payment of three months' salary and allowances in lieu of the notice required under rule 5.32 (c) of the punjab civil services rides, volume ii. that led to the filing of the writ petition in this court in march 1968.3. the impugned order was attacked on the ground that no notice, as required by the relevant rule, had been served on the respondent. according to him, he could be retired by the appointing authority on or after he attained the age of 55 years of giving him not less than three months' notice and under the law, he could not be paid three months' salary and allowances in lieu thereof. he was born on 6th august, 1911, and was to attain the age of superannuation on 5th august, 1969, when he would have been 58 years old.4. the reply of the government was that the respondent had been retired in accordance with the relevant rule and he was entitled either to three months' notice or three months' salary and allowances in lieu thereof.5. the learned single judge came to the conclusion that the requirement of the relevant rule was giving of not less than three months' notice. under the said rule, their was no provision for the lender or the oiler of payment of three months' pay in lieu of the notice. according to the impugned order, the respondent had not received notice in terms of rule 5.32 (c). that being so, the order of his retirement was contrary to law the said order was consequently, quashed. against this decision, the present appeal has been filed by the state of punjab.6. the relevant, rule reads thus- '5.32(c). a retiring pension is also granted to a government servant otherthan a class iv government servant-(i) who is retired by the appointingauthority on or after he attains theage of 55 years, by giving him notless than three months' notice; and (ii) who retires on or after attainingthe age of 55 years by giving notless than three months' notice ofhis intention to retire to the appointing authority. provided that where the notice is given before the age of fifty-five years attained it shall be given effect to from the date on which the age of fifty-five years is attained.note appointing authority retains an absolute right to retire any government servant, except a class iv government, servant, on or after he has attained the age of 55 years without assigning any reason. a corresponding right is also available to such a government servant to retire on or after he has attained the age of 55 years.'7. the sole point for determination in this case is whether under this rule the government can retire an employee on or after he attains the age of 55 years by giving him three months' salary and allowances in lieu of three months' notice.8. the contention of the learned counsel for the appellant, was that the government had got an absolute right to retire its employee on or after he had attained the age of 55 years without assigning any reason. all that the employee was entitled to was either three months' notice or three months' salary and allowances in lieu thereof. in support of his contention, the learned counsel relied on a bench decision of this court, consisting of harbans singh and j.n. kaushal, jj., in union of india v. lachhmi narain, 1967 ser lr 286 = (1968 lab ic 767 (punj) ). in lachhmi narain's case, 1967 ser lr 286 = (1968 lab ic 767) reliance was placed on another bench decision in l.p.a. no. 345 of 1904, state of punjab v. ved parkash vohra, d/- 16-7-1965 (punj). in the latter aulhority, the services of ved parkash vohra, who was a temporary engineer, were terminated with immediate effect. the case of the employee was that the said termination was penal and the safeguards provided by article 311 of the constitution were attracted which had not been satisfied. the case of the government, on the other hand. was that the employee being a temporary hand, his services were terminated strictly in accordance with the terms ot his employment. he would, however, be given three months' day in lieu of notice. the bench came to the conclusion that the termination of service did not impose any punishment on the employee and he was, therefore, not entitled to the protection of article 311 of the constitution. no service rule was, however, being interpreted in that case.9. counsel for the respondent, on the other hand, argued that according to the relevant rule, a notice for a period of not less than three months was necessary before an employee could be retired on or after his attaining the age of 55 years. in support of this submission, he referred to two decisions of tek chand, j. in chaman lal kapur v. state of punjab, 1967 ser lr 924 (punj) and mohan singh, ex. dy. ranger v. state of haryana, 1968 ser lr 461 = (1968 lab ic 1435 (punj) ). it was also contended that the decision in lachhmi narain's case was cited before tek chand j. in mohan singh's case and the same was distinguished by the learned judge on the ground that the language of the rule, which was being interpreted in that case, was different from rule 5.32(c). it might be mentioned that p. c. jain j. agreed with tek chand j. and on that ground he accepted the writ petition.10. the point involved in the present appeal is, undoubtedly, going to have far-reaching consequences and affect a large number of cases. it is, therefore, desirable that the law on the subject may be settled by a larger bench to set at rest any controversy that might arise on the interpretation of rule 5.32(c).11. we, therefore, direct that the following question of law be settled by a full bench-'whether under rule 5.32(c) of the punjab civil services rules. volume ii, the government can retire an employee on or after he attains the age of 55 years by giving him three months' salary and allowances in lieu of three months' notice.'12. let the papers of this case be placed before my lord the chief justice for necessary orders in this respect at a very early date.

Judgment:
ORDER

1. This is an appeal under Clause X of the Letters Patent filed by the State of Punjab against the decision of P.C. Jain, J. by which he accepted a petition under Articles 226 and 227 of the Constitution filed by Mohan Singh Malhi, respondent.

2. The respondent joined service in the United Punjab as a Veterinary Assistant Surgeon on 1st December, 1933. Later, on 4th July, 1939, he was taken in the Punjab Veterinary Service, Class II. by direct recruitment by the Public Service Commission and posted as Deputy Superintendent (Civil), Veterinary Department. He was confirmed on 4th July, 1941. He was then promoted to the Punjab Veterinary Service, Class I, with effect from 5th August 1912, and confirmed as such on 5th AUGUST, 1944. Subsequently, he held the post of the Director of Animal Husbandry and Warden of Fisheries, Punjab, from 16th March, 1957 to 14th August, 1959. There-after, Pritam Singh Brar was appointed Director in his place. When the said Pritam Singh Brar completed the age of 56 years, the respondent was again ap-pointed Director of Animal Husbandry, and he took over charge of this post on 4th August, 1965. He continued as such, when on 2nd September, 1967, he received the impugned order for his retirement on payment of three months' salary and allowances in lieu of the notice required under Rule 5.32 (c) of the Punjab Civil Services Rides, Volume II. That led to the filing of the writ petition in this Court in March 1968.

3. The impugned order was attacked on the ground that no notice, as required by the relevant rule, had been served on the respondent. According to him, he could be retired by the appointing authority on or after he attained the age of 55 years of giving him not less than three months' notice and under the law, he could not be paid three months' salary and allowances in lieu thereof. He was born on 6th August, 1911, and was to attain the age of superannuation on 5th August, 1969, when he would have been 58 years old.

4. The reply of the Government was that the respondent had been retired in accordance with the relevant rule and he was entitled either to three months' notice or three months' salary and allowances in lieu thereof.

5. The learned Single Judge came to the conclusion that the requirement of the relevant rule was giving of not less than three months' notice. Under the said rule, their was no provision for the lender or the oiler of payment of three months' pay in lieu of the notice. According to the impugned order, the respondent had not received notice in terms of Rule 5.32 (c). That being so, the order of his retirement was contrary to law The said order was consequently, quashed. Against this decision, the present appeal has been filed by the State of Punjab.

6. The relevant, rule reads thus- '5.32(c). A retiring pension is also granted to a Government servant otherthan a Class IV Government servant-

(i) who is retired by the appointingauthority on or after he attains theage of 55 years, by giving him notless than three months' notice; and

(ii) who retires on or after attainingthe age of 55 years by giving notless than three months' notice ofhis intention to retire to the appointing authority.

Provided that where the notice is given before the age of fifty-five years attained it shall be given effect to from the date on which the age of fifty-five years is attained.

Note Appointing authority retains an absolute right to retire any Government servant, except a Class IV Government, servant, on or after he has attained the age of 55 years without assigning any reason. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years.'

7. The sole point for determination in this case is whether under this rule the Government can retire an employee on or after he attains the age of 55 years by giving him three months' salary and allowances in lieu of three months' notice.

8. The contention of the learned counsel for the appellant, was that the Government had got an absolute right to retire its employee on or after he had attained the age of 55 years without assigning any reason. All that the employee was entitled to was either three months' notice or three months' salary and allowances in lieu thereof. In support of his contention, the learned counsel relied on a Bench decision of this Court, consisting of Harbans Singh and J.N. Kaushal, JJ., in Union of India v. Lachhmi Narain, 1967 Ser LR 286 = (1968 Lab IC 767 (Punj) ). In Lachhmi Narain's case, 1967 Ser LR 286 = (1968 Lab IC 767) reliance was placed on another Bench decision in L.P.A. No. 345 of 1904, State of Punjab v. Ved Parkash Vohra, D/- 16-7-1965 (Punj). In the latter aulhority, the services of Ved Parkash Vohra, who was a temporary Engineer, were terminated with immediate effect. The case of the employee was that the said termination Was penal and the safeguards provided by Article 311 of the Constitution were attracted which had not been satisfied. The case of the Government, on the other hand. was that the employee being a temporary hand, his services were terminated strictly in accordance with the terms ot his employment. He would, however, be given three months' Day in lieu of notice. The Bench came to the conclusion that the termination of service did not impose any punishment on the employee and he was, therefore, not entitled to the protection of Article 311 of the Constitution. No service rule was, however, being interpreted in that case.

9. Counsel for the respondent, on the other hand, argued that according to the relevant rule, a notice for a period of not less than three months was necessary before an employee could be retired on or after his attaining the age of 55 years. In support of this submission, he referred to two decisions of Tek Chand, J. in Chaman Lal Kapur v. State of Punjab, 1967 Ser LR 924 (Punj) and Mohan Singh, Ex. Dy. Ranger v. State of Haryana, 1968 Ser LR 461 = (1968 Lab IC 1435 (Punj) ). It was also contended that the decision in Lachhmi Narain's case was cited before Tek Chand J. in Mohan Singh's case and the same was distinguished by the learned Judge on the ground that the language of the rule, which was being interpreted in that case, was different from Rule 5.32(c). It might be mentioned that P. C. Jain J. agreed with Tek Chand J. and on that ground he accepted the writ petition.

10. The point involved in the present appeal is, undoubtedly, going to have far-reaching consequences and affect a large number of cases. It is, therefore, desirable that the law on the subject may be settled by a larger Bench to set at rest any controversy that might arise on the interpretation of Rule 5.32(c).

11. We, therefore, direct that the following question of law be settled by a Full Bench-

'Whether under Rule 5.32(c) of the Punjab Civil Services Rules. Volume II, the Government can retire an employee on or after he attains the age of 55 years by giving him three months' salary and allowances in lieu of three months' notice.'

12. Let the papers of this case be placed before my Lord the Chief Justice for necessary orders in this respect at a very early date.