Syed Sadat Abdul Masud, J. - (1.) This is a suit for a declaration, inter alia, that the order of the Deputy Accountant General, Posts &; Telegraphs, Calcutta, dated January 14, 1952, asking the Plaintiff to retire on and from January 16, 1952, is ultra vires, illegal and void and also for a decree for Rs. 2,947 -8 -0 being the arrears of salaries or alternatively as damages payable to the Plaintiff. According to the Plaintiff, he was appointed on December 13, 1916, an upper division clerk in the office of the Deputy Accountant General, Posts & Telegraphs, Calcutta, under the Defendant at its office at No. 7 Koilaghat Street, Calcutta. Since the date of his appointment the Plaintiff was working in that capacity until 1948 when he was getting the maximum scale of pay @ Rs. 230 p.m. In or about 1948 the office of the Deputy Accountant General, Posts & Telegraphs, Calcutta, was divided for administrative reasons and a new office was formed out of it which was known as office of the Deputy Accountant General, Postal Life Insurance, Calcutta. The Plaintiff was taken to the new office on the same grade and scale of pay. In July 1949, the Plaintiff applied for leave for a period of four months. But the leave was granted only for two months and 24 days. During the period of leave the Plaintiff remained at Mirzapur, U.P., for reasons of health. But as he could not fully recover there, he applied for leave for a further period of 38 days. In or about November 15, 1949, the Plaintiff joined his duty when he was served with a charge -sheet alleging incapacity, inefficiency and failure to report to duty. In or about January 21, 1950, while the Plaintiff was on leave again he was informed by a letter that action was going to be taken for removing him from service on account of misconduct and inefficiency. He was not allowed to join his office in April 1950, but subsequently he was allowed to continue his service from July 15, 1950, as all the previous charges against him were withdrawn. On November 27, 1950, he was again served with a fresh charge -sheet to which he submitted a written explanation. By a memo. No. 5984 dated December 14, 1951, the second charge -sheet was also not proceeded with. By another memo. No. 5983 dated December 13/14, 1951, the Plaintiff was informed that his period of absence without sanction had been commuted into leave without pay and he was allowed to continue in the office. By the said memo. No. 5984 dated December 14, 1951, the Plaintiff was also asked to show cause why he would not retire from service from December 15, 1951, on completion of his 55 years of age on the ground of his mental and physical unfitness reflecting on his efficiency for continued service. On December 29, 1951, the Plaintiff submitted a statement that no such order for compulsory retirement could be made without the certificate of a doctor and without proof of his inefficiency. According to the Plaintiff, he was fit to continue in service upto the age of 60 and, as such, the Defendant had no right to compel him to retire prematurely at the age of 55 years. The Plaintiff has also alleged that the Defendant's conduct was mala fide inasmuch as baseless allegations were made against him and the order passed by the Defendant on January 14, 1952, for his premature retirement was illegal and malicious. The Plaintiff also claimed a sum of Rs. 2,947 -8 -0 being the amount earned by way of salaries or damages @ Rs. 328 -8 -0 for about nine months from October 8, 1949 to November 14, 1949 and from November 21, 1949 to July 14, 1950.
(2.) According to the Defendant there were legitimate grounds for which the Government decided to pass the said order for compulsory retirement on the Plaintiff. According to them, under provisions of the Fundamental Rules 56(b), the Plaintiff has no absolute right to continue in service until the age of 60 years. The Plaintiff was not only physically ill for a long time but also was absenting himself from duty although no leave was sanctioned to him. His failing health, his refusal to submit the medical certificate with his application for leave and his decision to leave Mirzapur wherefrom he applied for leave without informing the office of his new address have adverse effects on the work of the department and, as such, the authorities decided not to grant him extension after he reached 55 years of age. The charge -sheets that were framed against the Plaintiff were not proceeded with inasmuch as he was on the verge of retirement and he was allowed to continue on compassionate grounds. In any event, the authorities have their discretion to retain his service after the age of 55 years under Fundamental Rules 56(b) read with Audit Instructions No. 4, p. 116 of the Fundamental Rules issued by the Accountant General, Posts & Telegraphs (3rd ed., reprint). The issues settled are stated as follows: (1) Is the order dated January 14, 1952, asking the Plaintiff to retire on and from January 16, 1952, void ? (2) Is the Plaintiff entitled to a decree for Rs. 2,947 -90 as set out in para. 14 ? (3) What relief, if any, is the Plaintiff entitled ?
(3.) The Plaintiff has appeared personally and examined himself in support of the case. I may add that the Plaintiff has come to the Court with the help of his son and seems to be suffering from serious form of arthritis or some other disease as a result of which he cannot stand erect nor can he move or walk on his legs. He, however, could sit in a normal way and I allowed him to address the Court by sitting on the chair. He looks otherwise healthy. I have found him to be extremely irritable and short -tempered. He has submitted that all that he has got to say has been set out in a typed note comprising about 30 pages. According to him, as he has riot been able to engage a Solicitor or counsel, he wants to place the said written representation as his main contentions in the case. I have, however, allowed Mr. Mukherjee the Learned Counsel for the Defendant, to go through the said written statement and adjourned the matter for a day. On the next day of hearing I have asked him to refer to the material portions of the said representation and during his cross -examination he has been often answering Mr. Mukherjee from the said note. He insisted that his written argument should be returned. I, under the circumstances, have returned his note after having gone through it and have found out the following material points in his contentions: (a) At all material times he was efficiently discharging his duties until July 1949 when he applied for four months' leave from his home at Baidyabati, Chinsurah. He, on grounds of health, went to Mirzapur, U.P., and applied for a further extension of leave. After this application for extension of leave he went back to his home at Baidyabati. As he did not get any intimation from his office as to whether his leave was sanctioned or not, he attended his office. Thereafter, after working for 6 days he had to take leave again until April 1950 when he wanted to join. But for reasons best known to the department, he was asked to join in July 1950. From July 1950 he has been regularly attending his office until December 1951, when he was asked to show cause why he should not be allowed to retire at the age of 55 years. (b) Charge -sheets were framed against him on the allegations of inefficiency, insubordination and physical and mental unfitness. But the department did not proceed with the enquiry into such allegations and was subsequently dropped. The department found the allegations against him absolutely baseless and, as such, allowed him to join in July 1950 without interruption. The allegations having been withdrawn against him, the department has no legitimate ground to pass the order for compulsory retirement on grounds of inefficiency and physical and mental unfitness. (c) The very fact that the department allowed him to continue in service from July 1950 till the end of 1951 and also the fact that no allegation of inefficiency and unfitness was proved against him, he could not be asked to retire compulsorily at the age of 55 years unless he was found to be unfit on medical grounds by a doctor during the period preceding January 1952. On the contrary, there is a certificate of the Staff Surgeon, Fort William, dated July 11, 1950, whereby he has been found to be in good health. Reliance was placed by him on F.R. 56 which, according to him, gives him unqualified right to continue to work until he reaches the age of 60 years unless he is found to be inefficient. (d) Reference has also been made to Rule 172 of the Manual of Standing Order of the Accountant General, Posts & Telegraphs (2nd ed. -corrected up to March 1, 1954, p. 93), on the basis of which it has been contended that a leave application should ordinarily be accepted as regular if a medical certificate by a registered medical practitioner is granted. The department was wrong in insisting on his examination by the Civil Surgeon, Hooghly, or by the Staff Doctor in the Fort William. (e) In any event, he was asked to show cause why he should not compulsorily retire at the age of 55 years, but he has not been given opportunity to defend himself against the allegations of inefficiency and physical and mental unfitness and, as such, is denied natural justice. (f) The department has acted mala fide in compulsorily retiring him inasmuch as the department acted on absolutely false materials. The department has acted on the advice of a Board of Members in refusing him to work upto the age of 60, but the constitution of such Board is not warranted in law.;