Arun Kumar Janah, J. - (1.) In this rule the petitioner is challenging the order of compulsory retirement by which he 1 has been 'retired from service before she attained the age of superannuation. The said order has been set out in paragraph 30 of the writ petition. The petitioner was born on June 23,1917 and he entered service under the Commissioners for the Port of Calcutta (hereinafter 'referred to as 'Port Authority') as a Probationer in 1939. In 1940 the petitioner officiated as an Inspector and in 1944 he was confirmed as an Inspector. Thereafter he worked in different posts from time to time and ultimately he was confirmed as Deputy Docks Manager. While he was holding the post of Deputy Docks Manager and while he went to Kashmir during his leave as aforesaid impugned resolution was passed by the Port Authority. The petitioner challenges the aforesaid resolution and the impugned order on the ground that by different resolutions passed by the Commissioners in meeting the Port Authority adopted the fundamental rules and the supplementary rules but in the impugned resolution there is 'no mention that the petitioner is being retired in public interest or that the authority was of the opinion that his retirement was necessary in public interest. On the other hand what is stated in the impugned resolution is that the petitioner was being retired in the interest of the Commissioners. It is alleged that impugned order and the resolution was arbitrary and was passed on irrelevant and extraneous considerations. In the second place the petitioner challenges the aforesaid order and the resolution on the ground that the rules contemplate giving 3 months' notice before an employee can be compulsorily retired but in the present case the resolution was adopted when the petitioner was on leave, and without giving him 3 months' notice the Port Authority decided to pay 3 months' salary to the petitioner in lieu of notice. The petitioner also challenges the impugned order and the resolution on the ground that the Port Authority acted mala fide. It is alleged that in order to make room for one Robin Roy who was a favourite of the respondent No. 4, the Traffic Manager under the Port Authority, the impugned resolution was passed by the Commissioners in meeting at the instance of the respondent No. 5, the Chairman. It is alleged that otherwise there was no necessity of passing the said resolution in such a great hurry and at a time when the petitioner was on leave.
(2.) The contention on behalf of the respondents, on the other hand, is that although the fundamental rules and the supplementary rules for the Central Government employees adopted by the Port Authority by different resolution from time to time there was some reservations in adoption of these rules. It was contended that the rules so adopted gave the Port Authority an absolute discretion to retire an employee compulsorily after he had attained the age of 55 years by giving him 3 months' notice, similarly the rules also gave an absolute discretion to an employee to retire from service after he has attained the age of 55 years by serving 3 months' notice. This right, it was argued, was a mutual right and there was no question of formation of any opinion on the part of the Port Authority before it could use its discretion under the titles, on the question of giving 3 months' pay in lieu of notice it was contended that there might have been various reasons for which the Port Authority thought it fit to terminate the service of the petitioner forthwith, and it was further argued that it was not open to this Court to go into the reasons which prompted the Port Authority to act in the manner as it did. The allegations of malafides have been denied by the respondents and it was contended that except a bare allegation the petitioner has not been able to point out any specific act on the part of the Port Authority which could be said to be malafide.
(3.) Before going into the merits of the respective contentions advanced on behalf of the parties it is necessary to refer to some of the resolutions adopted by the Port Authority and the relevant rules as they stood at the time when the impugned resolution and the order were passed. By resolution No 1096 dated 12th December, 1921, the Port Authority adopted the fundamental rules applicable to the Central Government employees as rules governing the service conditions of its employees under its rules making power conferred by section 31 of Calcutta Port Act, 1890 (hereinafter referred to as 'Act'). By resolution No. 429 dated 20th May, 1939, the Port Authority adopted the supplementary rules applicable to the Central Government employees as rules governing the the service conditions of its employees. By another resolution being No. 270 dated 29th March, 1954, the Port Authority adopted the amendments to the fundamental and supplementary rules only in so far as they can be adopted to the requirements of the Port Authority. The relevant portion of the said resolution is as follows:- "Amendments to the fundamental and supplementary rules of the Central , Government which may be made from time to time will be automatically applicable to the Commissioners' employees in so far as they can be adopted to the Port Trust requirements and are not inconsistent with the provisions of . the Calcutta Port Act. The Commissioners, however, reserve the right not to adopt any rule or amendment to any rule and they also reserve the right to frame any rule in deviation of any Government rule subject to the sanction of the Government".;