Decided on June 18,1963

Moulvi Yar Mohammad Appellant
Corporation of Calcutta and Ors. Respondents


D.N.SINHA, J. - (1.)THE facts in this case are briefly as follows.
(2.)THE petitioner was a permanent stock -verifier employed by the Corporation of Calcutta. He was involved in a criminal case which is known as the ' petrol theft case.' It appears that on or about 9 July 1957 a complaint was lodged with the police, but even before that, on 26 June 1957, the petitioner was placed under suspension with effect from 1 July 1957, Thereafter, he has been drawing his subsistence allowance. On 3 August 1957 he was served with a chargesheet. He submitted his explanation, and the matter came up for consideration by the Standing Finance Committee which considered the matter, and by Its resolution, dated 9 December 1957, postponed the enquiry. Since that time nothing further has been done, so far as the domestic enquiry was concerned. The criminal case is still pending. On 15 March 1960 the petitioner attained his age of superannuation. This is in accordance with Rule 72 of the service regulations of the Corporation of Calcutta which have been framed under the Calcutta Municipal Act, 1951. In this case we are concerned with two rules and it would be better to set them out:
Rule 72. - -Except as otherwise provided In these regulations, an employee, whether in superior service or in inferior service, shall retire on attaining the age of sixty years and no employee shall continue in service beyond that age.

Rule 74. - -An employee under suspension pending enquiry Into an alleged misconduct shall neither be required nor permitted to retire on his reaching the date of superannuation but shall be retained in service until the enquiry is concluded and the final order is passed thereon by the competent authority.

(3.)THE matter came up before the Standing Finance Committee sometime in March 1962. The question was: What was to happen to the petitioner who had already attained his age of superannuation under Rule 72 on 15 March 1960 ? I have been shown the minutes of the meeting of the Standing Finance Committee and I find that the committee had doubts upon this point and the Chief Law Officer of the Corporation was consulted. He gave his definite view that Rule 74 would apply, and until the domestic enquiry was brought to an end, the petitioner's service could not be said to have come to an end by superannuation. In spite of this advice, the Standing Finance Committee passed a resolution to the following effect on 29 March 1962 : Resolved: The committee are of the opinion that the services of Moulvi Yar, Mohammad, stock -verifier, accounts department, should be deemed to have been terminated with effect from the date of his superannuation.
It may be observed that superannuation under Rule 72 is not a punishment. It is a condition of service and an employee of the Corporation automatically ceases to be so employed upon attaining the age of sixty years. There is, however, an exception to this, and this is embodied in Rule 74 set out above. In the present case, it is admitted that the domestic enquiry is still pending, that there was an order of suspension, and no final order has been passed as yet. I do not see, therefore, how there can be any escape from the application of Rule 74. Sri De appearing on behalf of the respondents has not really attempted to controvert the .matter on merits, but he says that the application should fail for want of a prior demand for justice. Doubtless the petitioner has asked for a writ in the nature of mandamus and one of the conditions precedent for such a writ is a prior demand for justice, The Idea is that when a petitioner asks for a writ in the nature of mandamus, which la generally done against a public officer or a public corporation, the public officer or the corporation concerned, should have an opportunity of setting matters right before the Court is moved. There are, however, several exceptions to this rule. One of them is that a prior demand for justice is excused when it is found that such a demand would be useless. In order to consider this point, therefore, it will be necessary to state certain facts. After this resolution was made a rescission motion was put forward by a member of the Standing Finance Committee, Sri K. Hossain. This was to the effect that the resolution of the Standing Finance Committee relating to the petitioner passed on 29 March 1962 be rescinded. Thereupon the facts relating to the entire matter, including the previous history, was placed before the Standing Finance Committee, and after hearing the mover and being apprised of all facts and circumstances, the Standing Finance Committee on 28 June 1962 rejected the motion. On that very day, this rule was taken out. In my opinion, there is ground for saying that a demand for justice would, in the circumstances, have been useless. Sri Chatter -jee attempted to argue that a rescission motion by a councillors amounts to a demand for justice by the petitioner. I must reject this contention. A councillor of the Corporation who is a member of the Standing Finance Committee is not an agent on behalf of any rate -payer in Calcutta for the purpose of making a demand for justice prior to the making of an application in this jurisdiction. But I must uphold the other contention, namely, that a demand for justice under the circumstances would have been useless. After all, the recognized mode of getting redress in such matters is to bring a rescission motion. When such a motion is brought, the whole thing is gone through by the Standing Finance Committee. There are no new facts which are put forward before me, or which might have been put forward in a demand for justice. Having considered all these facts, and even having before It the legal opinion of the Law Officer of the Corporation, the Standing Finance Committee refused the rescission motion. I do not think that any useful result would have followed if the petitioner bad made a demand for Justice by serving a lawyer's letter containing the same facts. I might mention here that the impugned resolution of the Standing Finance Committee is merely Its opinion based on Rule 72. It Is not a substantive order in the sense of being an order of punishment. According to the Standing Finance Committee, the petitioner bad ceased to be employed by the Corporation as Boon as he attained his sixtieth year due to the provision of Rule 72. That is a mistake. However, if such a resolution is allowed to stand, then the petitioner would be prejudiced. After all, it is the Standing Finance Committee which controls the action of the Corporation in such matters. In my opinion, this application must succeed on the short point that the petitioner still continues In the service of the Corporation under Rule 74, and has not ceased to become so employed merely by having reached his age of superannuation.

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