IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Before: The Hon'ble Justice Hiranmay Bhattacharyya C.O. 3346 of 2018 The Kolkata Municipal Corporation Vs. Smt. Kajari Banerjee For the petitioner : Mr. Alok Kr. Ghosh, Mr. S.K. Debnath..... advocates For the opposite party : Mr. R.N. Chakraborty, Mr. M. Ahmed............ advocates Heard on : 18.12.2020 Judgment on : 22.12.2020 Hiranmay Bhattacharyya, J.: This application under Article 227 of the Constitution of India is at the instance of Kolkata Municipal Corporation and is directed against the order dated March 27, 2018 passed by the Learned Municipal Assessment Tribunal, Kolkata Municipal Corporation, Second Bench in M.A. Appeal no. 947 of 2012 thereby modifying the order of the Hearing Officer and assessing the annual valuation in respect of the property of the opposite party herein. This case had a chequered career. The Hearing Officer by an order dated March 24, 2012 assessed the annual valuation of the premises in question at Rs. 23,500/- with effect from fourth quarter of 2009-10. Previously, the opposite party herein preferred an appeal being M.A. Appeal no. 947 of 2012 challenging the aforesaid order dated March 24, 2012 passed by the hearing officer. The Learned Municipal Assessment Tribunal by an order dated February 16, 2015 allowed the said appeal upon holding that the reasonable rent of the premises in question should be 1.10 per square feet per month. Kolkata Municipal Corporation challenged the aforesaid order dated February 16, 2015 before this Hon'ble Court by filing an application under Article 227 of the Constitution of India being C.O. no. 2623 of 2017. By an order dated December 18, 2017, a coordinate bench of this court was pleased to allow the Civil Order No. 2623 of 2017 by setting aside the order dated February 16, 2015 and remanding the matter to the Tribunal for its fresh consideration in accordance with law within the time limit stipulated therein. After remand the Learned Tribunal by an order dated March 27, 2018 allowed the said appeal being M.A.A. 947 of 2012 in part thereby modifying the order passed by the Hearing Officer and assessing the annual valuation in respect of the property in question. By the order impugned the Learned Tribunal has reduced the annual valuation fixed by the Hearing Officer and has assessed the same on the basis of the materials placed by the respective parties before the learned Tribunal. Kolkata Municipal Corporation preferred the instant civil revisional application under Article 227 of the Constitution of India being dissatisfied with the annual valuation assessed by the learned Tribunal. Mr. Aloke Ghosh, learned Advocate appearing on behalf of the petitioner has contended that the learned Tribunal below acted illegally and with material irregularity in reversing the finding of the Hearing Officer by assessing the annual valuation of the property in question by taking the annual valuation of a property assessed by the Tribunal in M.A.A. no. 272 of 1996 as the basis. He contends that the learned Tribunal below relied upon a judgment passed in respect of other premises for the purpose of assessing the Annual Valuation without ascertaining as to whether the premises which was the subject matter in M.A.A. 272 of 1996 is identical and comparable with the premises in question. Mr. Ghosh further contends that the assessment period in respect of the property involved in M.A.A. no. 272 of 1996 is fourth quarter of 1993-94 whereas the assessment period of the property in question is fourth quarter of 2009-10. Thus, according to Mr. Ghosh, when there is a long gap of sixteen years in between the assessment period of the case relied upon by the opposite party herein before the Tribunal and the assessment period of the premises in question, the learned Tribunal ought not to have accepted the valuation of the referred case as the basis for assessing the annual valuation of the property in question. Mr. Ghosh also contends that the annual valuation of a premises should be fixed as per the provisions contained in section 174 of the Kolkata Municipal Corporation Act., 1980 ( for short "the said Act"). According to him, the learned Tribunal acted illegally and with material irregularity by assessing the annual valuation of the property in question by comparing it with the valuation fixed by the learned Tribunal in respect of other premises. Mr. Ghosh further contends that the learned Tribunal acted illegally and with material irregularity by taking the annual valuation fixed in respect of an old premises as the basis for assessing the annual valuation of the premises in question, which is a newly constructed one. He contends that the procedure adopted by the Tribunal by applying the Mayor's guidelines dated February 8, 1986 for arriving at the annual valuation of the premises in question by taking the annual valuation of an old premises as the basis is not permissible in law. According to him the aforesaid Mayor's guidelines can be applied only in respect of the self-same premises and cannot be applied to arrive at a conclusion in respect of a different premises. Mr. Ghosh contends that the initial onus is upon the assessee to show that the valuation proposed by the Kolkata Municipal Corporation is not correct by producing the materials on record. Once such initial onus is discharged, the onus shifts upon the Municipal Authority to place other materials showing the claim of the assessee placed before the Hearing Officer was wrong. He contends that the assessee failed to discharge her onus in the instant case. In support of his submission that the initial onus lies upon the assessee, he relies upon a judgment in the case of Calcutta Municipal Corporation vs. Kapoor and Company Private Limited reported at 2002(2) CHN 377. Mr. Ghosh further contends that the order of the Tribunal is an unreasoned one and the same is liable to be set aside. He refers to the following unreported judgments of co-ordinate benches of this court in support of his contention that an unreasoned order passed by the Tribunal is liable to be set aside under Article 227 of the Constitution of India. (i) Judgment dated 12.12.2018 passed in CO no. 3368 of 2017 (the Kolkata Municipal Corporation vs. Sri Vivek Kumar Agarwal and Another) (ii) Order dated 05.10.2018 passed in CO 2353 of 2017 the Kolkata Municipal Corporation vs. Rakesh Sarkar (iii) Order dated 11.03.2019 passed in CO no.1747 of 2018 (Kolkata Municipal Corporation vs. Smt. Mallika Pal) (iv) Judgment dated 14.08.2018 passed in CO no. 936 of 2018 (Radhyshyam Bansal vs. The Kolkata Municipal Corporation and others) Mr. Chakraborty, learned advocate for the assessee/ opposite party herein has seriously disputed the contentions of Mr. Ghosh. According to Mr. Chakraborty, the Municipal authority did not produce the records in its possession in respect of the premises in question apart from a copy of the Inspection Book of the assessment period in question. He contends that the municipal authority also relied upon the original proposal (Exhibit A) which is the basis of determination of valuation by the Hearing Officer. According to him the valuation proposed by the municipal authority is without any basis. The assessee filed the written objection before the Hearing Officer disputing the proposed valuation. The assessee discharged her onus as to what could be the reasonable rent for the premises in question by producing a copy of the judgment passed by the Tribunal in M.A.A. 272 of 1996 in respect of a premises which is situated in the vicinity. He contends that the learned Tribunal after considering the materials on record assessed the annual valuation by applying the guidelines framed by the Hon'ble Supreme Court of India in the case of India Automobiles (1960) Ltd. vs. Calcutta Municipal Corporation and Another, reported at (2002) 3 SCC 388. Mr. Chakraborty further refers to two judgments of coordinate benches of this court in the case of Kolkata Municipal Corporation vs. Smt. Shibani Mukherjee, reported at 2017 (3) CLJ (Cal) 593 and Kolkata Municipal Corporation vs. Sri Rama Prasanna Mitra, reported at (2016) 4 WBLR (Cal) 621 and contends that when the Tribunal after considering the materials produced before it had arrived at a conclusion and there is no laches in the decision-making process, the order passed by the Tribunal may not be interfered with. I have heard the learned advocates for the parties and have considered the materials on record. After going through the provisions of the said Act and the Calcutta Municipal Corporation Taxation Rules,1987 (for short, 'the said rules'), I find that the annual valuation should be fixed by the Hearing Officer after hearing the objection from the assessee. Such valuation has to be assessed in accordance with the provisions contained in Section 174 of the said act. The municipal authority proposed the valuation of Rs. 29,170/- in respect of the premises in question with effect from the fourth quarter of 2009-10. The assessee challenged the aforesaid proposed valuation by filing an objection. The Hearing Officer fixed the annual valuation of the premises in question at Rs. 23,500/- by passing the following order on March 24, 2012- "R.O is present. Heard both sides A.A.C & R.O written objection are considered A.V is fixed at Rs. 23,550/-" The said act casts a duty upon the Hearing Officer to make an assessment in accordance with law. The Hearing Officer while disposing of the objection filed by the assessee is statutorily obliged of follow the principles of natural justice. Assignment of reason is one limb of the principles of natural justice. The order passed by the Hearing Officer is an appealable one under Section 189 (5) of the said act before the Municipal Assessment Tribunal. When an unreasoned order is passed by the Hearing Officer, the Tribunal while adjudicating the appeal against such an order would feel great difficulty in adjudicating the same. As such the Hearing Officer is obliged to disclose the reasons for arriving at the conclusion. In the instant case, the order passed by the Hearing Officer failed to disclose any reasons for fixing the annual valuation at Rs. 23,550/-. There is no consideration whatsoever of the objections raised by the assessee before the Hearing Officer. Thus, the learned Tribunal was justified in not accepting the valuation fixed by the Hearing Officer. The Hon'ble Supreme Court in the case of India Automobile (supra) held that while determining the rents on the basis of reasonableness, prevalent rate of rent of lands and building in the vicinity of the property being assessed is one of the relevant considerations. The Hon'ble Supreme Court in the said reports held as- "23. .....................The 1980 Act, therefore, requires application of mind by the municipal authorities to determine the rents on the basis of reasonableness by keeping into account all relevant circumstances including the actual rent received by the owner, hypothetical standard rent, the rent being received by the tenant from his sub-tenant and other relevant consideration, such as prevalent rate of rent of lands and building in the vicinity of the property being assessed............" The municipal authority took into consideration the reasonable rent at Rs. 3.00/- per square feet for the covered area and Rs. 1.00/- per square feet for the roof. The municipal authority failed to justify the basis of taking the aforesaid rates of reasonable rent. The proposal of the municipal authority was thus without any basis as has been rightly held by the learned Tribunal in the impugned order. There is no dispute to the proposition of law laid down in the case of Kapoor (supra) that the initial onus is upon the assessee to show what is the actual gross annual rent including service charges which could be reasonably expected from the premises in question while valuation is assessed in accordance with the provisions contained in Section 174 of the said act. Rule 19 (6) of the said rules empowers the Municipal Assessment Tribunal to allow a party to produce evidence. The assessee produced the certified copy of the judgment of the Tribunal in M.A.A. 272 of 1996 as an evidence of the expected annual rent prevailing in the locality. Thus, the assessee discharged the initial onus by producing evidence in this regard. The municipal authority also produced copies of the judgments of the Tribunal in M.A.A no. 989 of 2005 and M.A.A. no. 1008 of 2009 as evidence in support of the expected annual rent prevailing in the locality. The decision of the Tribunal in M.A.A. no. 272 of 1996 is in respect of a flat at premises no. 110, Hazra Road within Ward no. 84 of the Kolkata Municipal Corporation. The judgment of the Tribunal in M.A.A. 989 of 2005 is in respect of Nakuleswar Bhattacharjee lane within the same ward. The judgment of the Tribunal M.A.A. no. 1008 of 2009 is in respect of premises on Rashbehari Avenue also within the same ward. The premises in question is a flat situated on Hazra Road within ward no. 84 of the Kolkata Municipal Corporation. The premises of the assessee and the premises which was the subject matter in M.A.A. no. 272 of 1996 are both situated on Hazra Road. The prevalent rate of rent of lands and building in the vicinity of the property being assessed is a relevant consideration for determination of annual valuation of a property as held in India Automobiles (supra). The proposal being the exhibit A is without any basis. The only evidence which were before the Tribunal for the purpose of assessment of the annual valuation of the property in question were the judgments of the Tribunal produced by the parties as evidence of the expected annual rent prevailing in the locality. The municipal commissioner is the custodian of records for the purpose of assessment of annual valuation and is under an obligation to produce the records in connection therewith. It is also not in dispute that several directions were passed by the Tribunal upon the municipal commissioner to produce the records in connection with the instant matter. For reasons best known to the municipal authority, no evidence has been produced from their end to show the prevailing reasonable rent in the locality namely Hazra Road in the instant case. The only evidence that was available before the Tribunal with regard to the prevailing rate of rent on Hazra Road was the judgment passed by the Tribunal in M.A.A. no. 272 of 1996. The Tribunal was thus justified in accepting the rate of rent fixed in M.A.A. 272 of 1996 as the basis for calculation of the annual valuation in the instant case. The decision of the Tribunal in M.A.A. no 272 of 1996 fixing the reasonable rent in respect of a flat on Hazra Road was with effect from fourth quarter of 1993-94 whereas the valuation of the premises of the assessee in the instant case is with effect from fourth quarter of 2009-10. The Learned Tribunal was justified in enhancing the valuation proportionately by applying the guidelines given in the Mayor's order dated February 8, 1986 in the absence of any other evidence on record. The Tribunal cannot be faulted with for enhancing the annual valuation proportionately by applying the Mayor's order in the instant case. The premises of the opposite party herein is a new construction and the premises which is the subject matter of M.A.A. 272 of 1996 is an old one, the learned Tribunal assessed the reasonable rent of the premises in question at Rs. 1.10/- per square feet per month for the covered area and Rs. 0.55/- per square feet per month for the roof area with effect from fourth quarter of 2009-10. The annual valuation fixed by the Tribunal cannot be said to be without any basis. Though there was an element of guess- work in assessing the annual valuation of the property in question but the same was inevitable in the circumstances of the instant case and the municipal authority was wholly responsible for the same as they have withheld the best evidence. The assessment of annual valuation made by the Tribunal has a reasonable nexus to the materials available on record and as such the same cannot be said to be an arbitrary one. There is also no laches in the decision-making process. It has been held by a coordinate bench of this court in Shibani Mukherjee (supra) that no interference under Article 227 of the Constitution of India is called for if the court finds no laches in the decision-making process. It has also been held by this court in Ramaprasanna (supra) that in the absence of any material produced by the municipal authority to show that the annual valuation would have been much higher than what has been assessed by the Municipal Assessment Tribunal and the Municipal Tribunal has decided the annual valuation of the premises on the basis of the materials on record, the order passed by the Tribunal does not call for any interference. The judgments cited by the opposite party squarely applies to the facts of the instant case. Now, I propose to deal with the decisions relied upon by Mr. Ghosh. In the case of Mallika Pal (supra) the order of the Municipal Assessment Tribunal was set aside on the ground that the learned Tribunal reduced the valuation without assigning any reasons therefore. In the case of Radhyshyam Bansal (supra) the order of the Municipal Assessment Tribunal was set aside and the matter was sent back on remand to the Tribunal as the learned Tribunal mechanically affirmed the unreasoned assessment of annual rent made by the Hearing Officer and also that the yardsticks for assessment of the annual rent fixed by the Hon'ble Supreme Court of India in various judgments was not followed by the Tribunal. In Rakesh Sarkar (supra) a coordinate bench of this court was pleased to set aside the order passed by the Municipal Assessment Tribunal as the same was an unreasoned one. In the case of Vivek Kumar Agarwal (supra) a coordinate bench of this court was pleased to set aside the order passed by the Tribunal as the same was an unreasoned one and also that the Tribunal being a quasi-judicial authority did not follow the procedures for disposal of an appeal. In the instant case the Learned Tribunal followed the procedures laid down under the said act and the said rules while deciding the appeal against the order passed by the Hearing Officer. The Tribunal allowed the parties to produce evidences in support of their respective cases in appeal. The Tribunal arrived at a valuation after taking into consideration the materials on record and by supplying cogent reasons in support of the conclusion arrived at. The yardsticks framed by the Hon'ble Supreme Court of India for determination of the annual valuation of the property in question have also been followed by the Tribunal in the instant case. For the reasons as aforesaid, the decisions relied upon by Mr. Ghosh do not have any manner of application in the instant case. In view of the reasons as aforesaid, I am of the view that the impugned order does not suffer from any infirmity warranting interference under Article 227 of the Constitution of India. C.O. no. 3346 of 2018 is dismissed without, however, any order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis. (Hiranmay Bhattacharyya, J.)


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2760 OF 2010 Indian Bank and another …Appellants Versus Mahaveer Khariwal …Respondent JUDGMENT M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.02.2009 passed by the Division Bench of the High Court of Delhi at New Delhi in Letters Patent Appeal No. 246 of 2007, by which the Division Bench has allowed Signature Not Verified the said appeal preferred by the respondent herein and has Digitally signed by ARJUN BISHT Date: 2021.01.22 16:09:02 IST Reason: quashed and set aside the judgment and order passed by the learned Single Judge and has quashed and set aside communication dated 20.04.2004 of the bank rejecting the application for voluntary retirement and has directed the appellantbank to release retiral dues of the respondent in accordance with the Pension Regulations, 1995 with simple interest at the rate of 9% per annum from the date of filing of writ petition, the employerbank has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: That the respondent herein – original writ petitioner – employee (hereinafter referred to as the ‘employee’) was working with the appellant bank – employer (hereinafter referred to as the ‘employer’), who was promoted as Chief Manager SMGIV. In March, 1998, he was transferred and posted as Chief Manager, Colombo Branch, Colombo. Thereafter, by order dated 13.05.2013, he was transferred from Colombo overseas branch to the Defence Colony Branch, New Delhi as Chief Manager (BM). The employee applied for 30 days’ leave to visit London as his son was admitted in the hospital. Thereafter, the employee wrote to the employer seeking extension of leave. The application for leave as well as the application for extension of leave were refused by the employer and the employee was directed to report on duty at Defence Colony Branch, New Delhi. That on 21.01.2004, the employee submitted an application seeking voluntary retirement from the services of the employer in accordance with Circular No. 32/9798 dated 15th July, 1997 and the format given by the employer for submitting the notice of voluntary retirement. In the application for voluntary retirement, the employee requested for waiver of three months’ notice, as required under Regulation 29 of the Indian Bank Employees Pension Regulations, 1995 (hereinafter referred to as ‘Pension Regulations, 1995’) and requested/authorised the employer to deduct the salary of the notice period from out of the amount payable by the employer on retirement. The employer vide letter dated 20.04.2004, which was served on the employee on 23.04.2004, rejected the request of the employee for voluntary retirement on the ground that the employee was not eligible under Pension Regulations, 1995. 3. Being aggrieved by the rejection of the application for voluntary retirement, the employee preferred Writ Petition (C) No. 16972 of 2005. One another prayer was for a direction to the employer to reimburse the educational expenses for the son of the employee, who had been sent to Singapore for his education while he was posted at Colombo. One another prayer was for grant of traveling allowance bills for the journey from Colombo to New Delhi, which was declined by the employer on account of delay in submitting the bills. The learned Single Judge by judgment and order dated 11.10.2006 dismissed the writ petition so far as challenge to the rejection of his voluntary retirement application vide communication dated 20.04.2004. However, granted the prayers for traveling allowance bills and educational expenses. 4. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge in dismissing the writ petition with respect to his prayer to quash the letter dated 20.04.2004 rejecting his request for voluntary retirement, the employee preferred Letters Patent Appeal before the Division Bench of the High Court. The Division Bench, by the impugned judgment and order, has allowed the said Letters Patent Appeal and has quashed and set aside the letter dated 20.04.2004 and has directed the employer to release retiral dues of the employee in accordance with Pension Regulations, 1995. 5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the employer has preferred the present appeal. 6. Shri Ravi Sikri, learned Senior Advocate has appeared on behalf of the employer and Shri Sanjeev Kumar, learned Advocate has appeared on behalf of the employee. 6.1 Shri Ravi Sikri, learned Senior Advocate appearing on behalf of the employer has made the following submissions, assailing the impugned judgment and order passed by the Division Bench: i) that the High Court has not properly appreciated Regulation 29 of the Pension Regulations, 1995 in its true perception; ii) that the High Court has not properly appreciated the fact that as per Regulation 29, a request for voluntary retirement by an employee requires permission/acceptance of the employer concerned; iii) that vide communication dated 20.04.2004, the application of the employee for voluntary retirement was rejected within three months from the date of submitting the voluntary retirement application and therefore there could not be a deemed acceptance of voluntary retirement; that what is relevant is taking the decision within three months and not the service of the decision on the application for voluntary retirement. It is submitted that in the present case, the decision was taken within a period of three months. iv) that the High Court has failed to appreciate that an employee who seeks voluntary retirement is to give three months’ mandatory notice in writing to enable the employer to make necessary arrangements for an alternate hand in place of the employee seeking voluntary retirement. It is submitted that in the present case, three months’ mandatory notice was not given and therefore his application for voluntary retirement was defective to that extent. It is submitted that therefore the employer rightly rejected his application for voluntary retirement which was not in consonance with the Pension Regulations, 1995; v) that the High Court has failed to appreciate that the employee’s offer of surrendering three months salary in lieu of mandatory notice period could not be considered to be a valid application for waiver of the three months’ notice requirement; vi) that the High Court has erred in holding that the employee was, in fact, transferred to the foreign branch and was not sent on deputation. It is submitted that as such the respondent was on deputation at the overseas branch at Colombo at the relevant point of time and therefore as per Regulation 29(1) of the Pension Regulations, 1995, the employee was not eligible to apply for voluntary retirement unless after having been transferred or having returned to India, he has resumed charge of the post in India and has served for a period of not less than one year. It is submitted that therefore the employee did not fulfil the statutory requirement of serving for a period of one year after returning to India, as contemplated under Regulation 29(1); vii) It is submitted that as such after rejection of the application for voluntary retirement, the employer initiated departmental proceedings against the employee for his unauthorised absence from 26.11.2003 to 19.01.2004 and from 22.01.2004 and the disciplinary authority imposed the penalty of compulsory retirement on the employee. It is submitted that therefore the Division Bench of the High Court ought not to have allowed the appeal. Making the above submissions, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the Division Bench and restore the judgment and order passed by the learned Single Judge and restore the decision of the bank dated 20.04.2004 rejecting the application of the employee for voluntary retirement. 7. Shri Sanjeev Kumar, learned Advocate appearing on behalf of the employee has supported the impugned judgment and order passed by the Division Bench of the High Court. It is submitted that the Division Bench has rightly set aside the communication dated 20.04.2004 by which the application of the employee for voluntary retirement was rejected. It is submitted that the Division Bench of the High Court has rightly interpreted Regulation 29 and has rightly considered that the bar under Regulation 29(1) shall not be applicable insofar as Regulation 29(1) is concerned, as the employee was not on deputation at Colombo Branch but was on transfer. It is submitted that the question is not when the decision was served upon the employee, but the question is whether the rejection of the voluntary retirement application vide communication dated 20.04.2004 was legal, just and proper and was in consonance with Regulation 29 or not. It is submitted that on true interpretation of Regulation 29, the High Court has rightly allowed the appeal and has rightly quashed and set aside the communication dated 20.04.2004. 8. We have heard the learned counsel for the respective parties at length. It is not in dispute that in the present case the employee submitted the voluntary retirement application on 21.01.2004. In the application itself, the employee requested for waiver of three months’ notice and requested to deduct the salary amount of the notice period from out of the amounts payable to him by the employer on retirement. It is not in dispute and it cannot be disputed that the notice of voluntary retirement requires acceptance by the appointing authority. However, as per proviso to SubRegulation 2 of Regulation 29, in case the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the said notice period. In the present case, on the 90 th day vide communication dated 20.04.2004 the application of the employee for voluntary retirement was rejected without assigning any specific reasons and by observing that the employee is not eligible for voluntary retirement under Pension Regulations, 1995. The said communication was sent to the employee on the very date, i.e., 20.04.2004, however the same was received by the employee on 23.04.2004. The learned Single Judge dismissed the writ petition so far as challenge to the communication dated 20.04.2004 is concerned. However, on appeal, by the impugned judgment and order, the Division Bench has set aside the communication dated 20.04.2004 by which the request of the employee for voluntary retirement from the service of the employer came to be rejected. Therefore, the short question which is posed for the consideration before this Court is, whether the rejection of the request of the employee for voluntary retirement vide communication dated 20.04.2004 was legal and in consonance with Regulation 29 of the Pension Regulations, 1995 or not. 9. While considering the aforesaid question, Regulation 29 is required to be referred to, which reads as under: “29. Pension on Voluntary Retirement: 1) On or after the first day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the appointing authority retire from service: Provided that this subregulation shall not apply to an employee who is on deputation or on study leave on abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year: Provided further that this subregulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement: Provided that this subregulation shall not apply to an employee who is deemed to have retired in accordance with clause (l) of regulation 2. (2) The notice of Voluntary retirement given under sub regulation (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3)(a) An employee referred to in subregulation (1) may make a request in writing to the appointing authority to accept notice of Voluntary Retirement of less than three months giving reasons thereof; (b) On receipt of a request under clause (a), the appointing authority may, subject to the provisions of subregulation (2), consider such request for the curtailment of the period of the notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for Commutation of a part of the pension before the expiry of the notice of three months. (4) An employee, who has elected to retire under this regulation and has given necessary notice to that effect to the appointing authority. shall be precluded from withdrawing his notice except with specific approval of such authority; Provided that the request for such withdrawal shall be made before the intended date of his retirement. (5) The qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirtythree years and it does not take him beyond the date of superannuation, (6) The pension of an employee retiring under this regulation shall be based on the average emoluments as defined under clause (d) of regulation 2 of these regulations and the increase. not exceeding five years in his qualifying service. shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.” 10. On a fair reading of Regulation 29, it emerges that an employee is entitled to apply for voluntary retirement after he has completed 20 years of qualifying service. He can apply for voluntary retirement by giving notice of not less than three months in writing to the appointing authority (Regulation 29(1)). However, as per proviso to SubRegulation (1) of Regulation 29, SubRegulation (1) of Regulation 29 shall not apply to an employee who is on deputation or on study leave on abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year. The said proviso shall be dealt with and considered hereinbelow. It also appears that as per SubRegulation (2) of Regulation 29, the notice of voluntary retirement given under SubRegulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Subregulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per SubRegulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months’ notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. SubRegulation 3(b) provides that on receipt of a request for waiver of three months’ notice as per SubRegulation 3(a), the appointing authority may, subject to the provisions of Sub Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months’ notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of SubRegulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90 th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench. 11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to SubRegulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to SubRegulation (1) to Regulation 29 shall not be applicable. 12. Now so far as the submission on behalf of the employer that the acceptance or nonacceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months’ period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employeremployee relationship. 13. In view of the above and for the reasons stated above, the appeal fails and the same deserves to be dismissed and is accordingly dismissed. However, there shall be no order as to costs. ……………………………………J. [ASHOK BHUSHAN] ………………………………….J. [R. SUBHASH REDDY] NEW DELHI; ………………………………….J. JANUARY 22, 2021. [M.R. SHAH]


REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 195 OF 2022 (arising out of S.L.P (Crl.) No. 6545 OF 2020) KAHKASHAN KAUSAR @ SONAM & ORS. … APPELLANT (S) VERSUS STATE OF BIHAR & ORS. … RESPONDENT(S) JUDGMENT KRISHNA MURARI, J. Leave granted. 2. This appeal is directed against the judgment and order dated 13.11.2019 passed by the High Court of Patna in Criminal Writ Petition No. 1492 of 2019, filed by the Appellants under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’) challenging the FIR No. 248/2019 dated 01.04.2019 implicating the Appellants for offences under Sections 341, 323, 379, 354, 498A read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘IPC’). The High Court vide order impugned herein dismissed the Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.02.08 16:17:30 IST same. Reason: Factual Matrix 3. The Complainant (Respondent No. 5 herein) Tarannum Akhtar @ Soni, was married to Md. Ikram on 18.09.17. The appellants herein are the in-laws of Respondent No. 5. On 11.12.17, the said Respondent initially instituted a criminal complaint against her husband and the appellants before the Court of Chief Judicial Magistrate, Purnea alleging demand for dowry and harassment. Thereafter, when the file was put up before the Sub Divisional Judicial Magistrate Court, Purnea, for passing order at the stage of issuance of summon, the Ld. Magistrate concluded that upon perusal of material evidence no prima-facie case was made against the in-laws and that the allegations levelled against them were not specific in nature. The said court, however, took cognizance for the offence under section 498A, 323 IPC against the husband Md. Ikram, and issued summons. This dispute was eventually resolved and Respondent No. 5 herein came back to the matrimonial home. 4. Subsequently, on 01.04.19, Respondent No. 5 herein, gave another written complaint for registration of FIR under sections 341, 323, 379, 354, 498A read with Section 34 IPC against her husband Md. Ikram and the appellants herein. The complaint inter-alia alleged that all the accused were pressurizing the Respondent wife herein to purchase a car as dowry, and threatened to forcibly terminate her pregnancy if the demands were not met. 5. Aggrieved, the Husband and appellant herein filed a criminal writ petition before the Patna High Court, for quashing of the said FIR dated 01.04.19, which was dismissed vide impugned judgment. The High Court observed that the averments made in the FIR prima-facie disclosed commission of an offence and therefore the matter was required to be investigated by the police. The Appellants herein, being the niece (Respondent No. 1), Mother in-law (Respondent No. 2), Sister in-law (Respondent No. 3), and brother in law (Respondent No. 4) have thereby approached this court by way of the present Special Leave Petition. Contentions made by the Appellants 6. The counsel for the Appellants herein contends, that the Police Officer was duty bound to conduct a preliminary inquiry before registering the FIR as this instant case falls within the categories of cases on which a preliminary enquiry may be made, as mandated by this court in Lalita Kumari Vs. Government of U.P. & Ors.1 . 1. (2014) 2 SCC 1 7. It is also submitted that previously in the year 2017, the Respondent wife had instituted a criminal complaint on similar allegations, whereby the Ld. Judicial Magistrate after considering the evidence issued summons only against the husband, and found that the allegations made against the appellants herein were omnibus in nature. Further, it is submitted that the FIR in question has been made with a revengeful intent, merely to harass the Appellant in-laws herein, and should be dealt with accordingly. Reliance is placed on Social Action Forum for Manav Adhikar & Anr. Vs. Union of India, Ministry of Law And Justice & Ors.2, wherein it was observed:- “4. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union of India and others , it was held by the Supreme Court:- "Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations 2. (2018) 10 SCC 443 can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.” Contention made by Respondent No. 1 – State of Bihar 8. Respondent No. 1 herein i.e., the State of Bihar, contends that the present FIR pertains to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife for dowry, and treat her properly. However, the husband and appellants, despite the assurances, have continued their demand for dowry and threatened with forcefully terminating the Respondent wife’s pregnancy. These acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. Moreover, an investigation was carried out pursuant to the FIR and the case has been found true against all accused persons, therefore Lalita Kumari (Supra) will not apply in the present case. Contentions made by Respondent No 5 – Complainant Wife 9. Respondent No. 5 contends that of the total seven accused, the FIR in question was challenged by only five accused including her husband. It is argued that the impugned order is evidently accepted by the accused husband Md. Ikram @Sikandar as he has not challenged the impugned High Court judgment. Further, as far as involvement of the four accused Appellant in-laws is concerned, it is not only reflected from the averments made in the FIR, but also corroborated from the oral and documentary evidence collected by the investigating officer during investigation, culminating into filing of charge-sheet against all seven accused including the four Appellants herein. The allegations thus made in the FIR are sufficient to make out a prima facie case, and non- mentioning of pendency of Complaint case of year 2017, at the time of filing the complaint 01.04.19 is not fatal for the case of the prosecution. 10. It is further submitted that the allegations made in the FIR are serious in nature and the Respondent wife has been repeatedly tortured physically and mentally in order to fulfil the demand for dowry. Further, even if the contentions made by the Respondent No. 5 herein are disputed, by the Appellant in-laws, their veracity can be tested in trial before the Trial Court. It is further contended that this court has also taken a consistent view with regard to exercise of power under S. 482 Cr.P.C., in Rajesh Bajaj Vs. State of NCT of Delhi & Ors. 3, wherein it has been clearly held that even if a prima facie case is made out disclosing the ingredients of an offence, Court should not quash the complaint. Therefore, the impugned order can in no way be termed as perverse, cryptic or erroneous and therefore warrant no interference by this Hon’ble Court. Issue Involved 11. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed? 12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a 3. (1999) 3 SCC 259 greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. 13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of U.P. & Anr.4, has observed:- “14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.” 4. (2018) 10 SCC 472 14. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State of Bihar and Anr.5, it was also observed:- “4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.” 15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. 6, it has also been observed:- “32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. 33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their 5. (2014) 8 SCC 273 6. (2010) 7 SCC 667 concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations. 35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. 36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.” 16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.7, it was observed:- “21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: “there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.” The view taken by the judges in this matter was that the courts would not encourage such disputes.” 17. Recently, in K. Subba Rao v. The State of Telangana 8, it was also observed that:- 7. (2012) 10 SCC 741 8. (2018) 14 SCC 452 “6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.” 18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them. 19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that ‘all accused harassed her mentally and threatened her of terminating her pregnancy’. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution. 20. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. 21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law. 22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged. 23. In view of the above facts and discussions, the impugned order dated 13.11.2019 passed by the High Court of Patna is set aside. The impugned F.I.R. No. 248 of 2019 against the Appellants under Sections 341, 323, 379, 354, 498A read with Section 34 IPC stands quashed. 24. As a result, appeal stands allowed. ....…..........................J. (S. ABDUL NAZEER) …................................J. (KRISHNA MURARI) NEW DELHI; 08TH FEBRUARY, 2022


CASE NO.: Appeal (civil) 849 of 2007 PETITIONER: State of Manipur & Ors RESPONDENT: Y. Token Singh & Ors DATE OF JUDGMENT: 20/02/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T WITH [Arising out of SLP (C) No. 19110-19112 of 2005] CIVIL APPEAL NO.850 OF 2007 [Arising out of SLP (C) No. 19375-19376 of 2005] S.B. SINHA, J : Leave granted. The State of Manipur is in appeal before us questioning the judgment and order dated 29.07.2005 passed by a Division Bench of the Guwahati High Court in WA Nos. 61, 78, 79, 95 and 100 of 1999 upholding a judgment and order of a learned Single Judge of the said Court dated 19.02.1999 in C.R. Nos. 324, 1012, 568, 1022 and 1023 of 1998. One Shri A.J. Tayeng was the Revenue Commissioner of Government of Manipur. The State of Manipur had not framed any recruitment rules for appointment inter alia in the Revenue Department and in particular the field staff thereof. The Commissioner of Revenue Department was conferred with a power of being the cadre controlling authority for non-ministerial post of the Revenue Department. He was also to be the Chairman of the Departmental Promotion Committee for non-ministerial post of the Revenue Department. The Commissioner allegedly made certain appointments in the posts of Mandols, Process-Servers and Zilladars which was not within the knowledge of the State. The said appointments were made on temporary basis. Appointments were made on 11.09.1997, 22.11.1997 and 5.12.1997. A sample copy of the offer of appointment reads as under: "No. 1/14/97  Com (Rev) : On the recommendation of D.P.C. and under the directives issued by the Hon'ble Gauhati High Court, the following persons are hereby appointed as Mandols on temporary basis in the scale of pay of Rs. 950-20-1150-EB-25-1400/- per month with usual allowances against thereto existing clear vacancies of Mandals under Revenue Department from the date of their joining on duties. 2. Further, they are posted at the places indicate against their names:- *** *** *** 3. The expenditure is debitable under Appropriate Heads of Accounts of the Departments/ Offices concerned." No record in regard to the said recruitments was maintained. An inquiry was, therefore, made to find out the authority which had issued the said offers of appointments. Shri Tayeng by a UO Note dated 12.01.1998 denied to have made such an appointment stating: "CONFIDENTIAL U.O. No. 2/15/93-Com (R) Pt. Imphal, the 12th Jan., 1998 Sub: Submission of report. With reference to the U.O. letter No. 2/15/93- Com(R) Pt. Dated 6th January, 1998 regarding the alleged appointment of ad-hoc/ regular appointment to the post of Lambus/ Mandols etc. of the Hon'ble Minister (Revenue), I am to say that I am not all aware of such appointments made by me except for 3 Lambus who were kept in panel for appointment, and accordingly the S.O. (Revenue) Shri Robert Shaiza was instructed to take care. I, therefore, deny making of such appointments. On the other hand, Md. A.R. Khan, Secretary (Revenue) has made many appointments of Mandols/ Process Servers/ Zilladars in the recent months against which I have been complaining that the Secretary (Revenue) has no power or authority to make any appointments of field staff as per Rules provided under M.L.R. Act, 1960. In this regard, I have apprised the matter to the Hon'ble Minister (Revenue) already and also informed the Chief Secretary, Manipur explaining that the Secretary (Revenue) cannot make such appointments of field staffs, even if he wanted to do so, all the relevant files should have been routed through the undersigned so that the same may be brought to the notice of the Hon'ble Minister (Revenue). His action has created lots of misunderstanding and confusion. He has been making false and wrong allegations against the Commissioner (Revenue) and putting him false position. It is for this reason, I have been writing to all the Deputy Commissioners in the Districts even by sending W/T messages clarifying the actual position of making any appointment of Revenue field staff. I still deny that I have made any appointment of field staffs of Revenue Department during the recent months. Submitted for information and consideration. Sd/- 12/1/98 (Annayok J. Tayeng) Commissioner (Revenue) Govt. of Manipur Minister (Revenue)" In view of the aforementioned stand taken by the said Shri Tayeng, the offers of appointment issued in favour of the Respondents were cancelled by an order dated 17.02.1998. A corrigendum thereto was, however, issued on 21.02.1998 stating: "No. 2/15/93-Com(Rev) Temp-I: Please read as "August/97" in place of "October/97" occurring in the 4th line of this Government order No. 2/15/93- Com(Rev) Temp-I dated 17-2-1998." In Civil Appeal arising out of SLP (C) No. 19375-19376 of 2005, the respondents were appointed on ad hoc basis for a period of six months. Their appointments were also cancelled on similar grounds. The respondents herein filed writ petitions before the High Court on 4.06.1998 questioning the said order of cancellation of their appointments. The said Shri Tayeng retired on 28.02.1998. Despite the fact that he, in his UO Note dated 12.02.1998 addressed to the Minister of Revenue, denied to have made any appointment, when approached by the writ petitioners  respondents, he affirmed in their support an affidavit in the High Court stating: "3. That, while I was functioning as Revenue Commissioner, Manipur, matters relating to appointment on the recommendation of the D.P.C., transfer etc. were put-up to me in files and I used to pass order on the basis of facts presented to me in file. I also issued appointment order under my signature. After my retirement from service I have no access to such files. As stated above, I was transferred and posted to the Manipur Electronics Development Corporation during 1997. 4. That after my retirement, some of the writ petitioners civil Rule No. 568 of 1998, came to me and show copy of the writ petition and the counter affidavit of the respondent No. 1, 2 and 3. I have gone through the copy of the writ petition and the counter-affidavit and annexures thereto. The Xerox copy of the cyclostyled appointment order bearing No. 1/14/97  Com (Rev.) dated 11.9.97 (annexure A/1 to the writ petition) appointing 3 persons to the post of Mandol and No. 1/14/97- Com. (Rev.) dated 11.9.97 (Annexure A/2 to the writ petition) appointing 4 persons to the post of Mandol, are perused by me minutely. I submit that these appointment orders (annexures A/1 and A/2) bear my signature (initial) and appear to have been issued under my signature. It appears that the appointment orders were issued after complying the formalities prescribed therefor which can be ascertained from the relevant official file. Since I have retired from service, I have no access to the file and do not know what might have been in the file and where is the file. Verified that the above statements are true to the best of my knowledge and no part of it is false." The writ petitions filed by the respondents herein were allowed by a learned Single Judge of the High Court opining: (i) The principles of natural justice having not been complied with, the impugned orders cannot be sustained. (ii) Whereas, in the impugned order, the appointments of the respondents were said to have been passed without the knowledge of the Administrative Department (Revenue Department); in the counter affidavit, it was stated that no records were available in respect thereof and, thus, the said plea being inconsistent with each other, the orders of cancellation of appointment would be bad in law in the light of a decision of this Court in Mohinder Singh Gill and Anr. v. Chief Election Commissioner, Delhi and Ors. [AIR 1978 SC 851]. However, it was observed: "However, it is further made clear that the State respondent are at liberty to initiate or take up any appropriate legal action in the matter pertaining to their alleged fake appointments in their respective posts in accordance with law and pass necessary order after affording reasonable opportunity of being heard to them." (iii) So far as the matter relating to Civil Appeal arising out of SLP (C) No. 19375-19376 of 2005 is concerned, it was directed that as the appointment of the respondents were made for a period of six months, the employees were only entitled to the salary for the said period. The writ appeals preferred thereagainst by the appellants herein were dismissed. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the appellants, would submit that the High Court went wrong in passing the impugned judgment insofar as it failed to take into consideration that in a case of this nature it was not necessary to comply with the principles of natural justice. Strong reliance in this behalf has been placed on Kendriya Vidyalaya Sangathan and Others v. Ajay Kumar Das and Others [(2002) 4 SCC 503]. It was argued that the question, as to whether appointments were made without the knowledge of the Department or for that matter whether any record was available therefor was of not much significance as in effect and substance they lead to the same inference and in that view of the matter, the decision of this Court in Mohinder Singh Gill (supra) was not attracted. Mr. S.B. Sanyal, learned counsel appearing on behalf of the respondents, on the other hand, would submit that the question as to whether the appointments of the respondents were nullities or not having not been raised before the High Court, this Court should not permit the appellants to raise the said contention at this stage. The learned counsel would submit that even in a case of this nature, it was incumbent upon the appellants to comply with the principles of natural justice. Strong reliance in this behalf has been placed on Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36], Murugayya Udayar and Another v. Kothampatti Muniyandavar Temple by Trustee Pappathi Ammal [1991 Supp (1) SCC 331] and Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Others [(1991) 1 SCC 212]. The State while offering appointments, having regard to the constitutional scheme adumbrated in Articles 14 and 16 of the Constitution of India, must comply with its constitutional duty, subject to just and proper exceptions, to give an opportunity of being considered for appointment to all persons eligible therefor. The posts of field staffs of the Revenue Department of the State of Manipur were, thus, required to be filled up having regard to the said constitutional scheme. We would proceed on the assumption that the State had not framed any recruitment rules in terms of the proviso appended to Article 309 of the Constitution of India but the same by itself would not clothe the Commissioner of Revenue to make recruitments in violation of the provisions contained in Articles 14 and 16 of the Constitution of India. The offers of appointment issued in favour of the respondents herein were cancelled inter alia on the premise that the same had been done without the knowledge of the Revenue Department of the State. No records therefor were available with the State. As noticed hereinbefore, an inquiry had been made wherein the said Shri Tayeng, the then Commissioner of Revenue stated that no such appointment had been made to his knowledge. The State proceeded on the said basis. The offers of appointment were cancelled not on the ground that some irregularities had been committed in the process of recruitment but on the ground that they had been non-est in the eye of law. The purported appointment letters were fake ones. They were not issued by any authority competent therefor. If the offers of appointments issued in favour of the respondents herein were forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. Any action, which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework, would not be binding on the State. In any event, having regard to the fact that the said authority himself had denied to have issued a letter, there was no reason for the State not to act pursuant thereto or in furtherance thereof. The action of the State did not, thus, lack bona fide. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment exchange. The Commissioner furthermore was not the appointing authority. He was only a cadre controlling authority. He was merely put a Chairman of the DPC for non-ministerial post of the Revenue Department. The term "DPC" would ordinarily mean the Departmental Promotion Committee. The respondents had not been validly appointed and in that view of the matter, the question of their case being considered for promotion and/ or recruitment by the DPC did not and could not arise. Even assuming that DPC would mean Selection Committee, there is noting on record to show who were its members and how and at whose instance it was constituted. The Commissioner, as noticed hereinbefore, was the Chairman of the DPC. How the matter was referred to the DPC has not been disclosed. Even the affidavit affirmed by Shri Tayeng before the High Court in this behalf is silent. The appointing authority, in absence of any delegation of power having been made in that behalf, was the State Government. The Government Order dated 12.01.1998 did not delegate the power of appointment to the Commissioner. He, therefore, was wholly incompetent to issue the appointment letters. The respondents, therefore, in our opinion, were not entitled to hold the posts. In a case of this nature, where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility. It is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf, the principles of natural justice are required to be complied with, in view of the decision of this Court in Murugayya Udayar (supra). We, as noticed hereinbefore, do not know as to under what circumstances the orders of appointments were issued. The said decision is not an authority for the proposition that the principles of natural justice are required to be complied with in all situations. In Kumari Shrilekha Vidyarthi (supra), this Court was dealing with a question in regard to continuance of the Law Officers. The question which arose herein was not raised. It was held: "34. In our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case. 35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind." We in the facts and circumstances of this case do not see any arbitrariness on the part of the State in its action directing cancellation of appointments. We may, on the other hand, notice that Kumari Shrilekha Vidyarthi (supra) has been distinguished by this Court in State of U.P. and Others v. U.P. State Law Officers Association and Others [(1994) 2 SCC 204] stating: "The reliance placed by the respondents in this behalf on Shrilekha Vidyarthi v. State of U.P. is misplaced for the obvious reason that the decision relates to the appointment of the District Government Counsel and the Additional/Assistant District Government Counsel who are the law officers appointed by the State Government to conduct civil, criminal and revenue cases in any court other than the High Court. Their appointments are made through open competition from among those who are eligible for appointment and strictly on the basis of merit as evidenced by the particulars of their practice, opinions of the District Magistrate and the District Judge and also after taking into consideration their character and conduct. Their appointment is in the first instance for one year. It is only after their satisfactory performance during that period that a deed of engagement is given to them, and even then the engagement is to be for a term not exceeding three years. The renewal of their further term again depends upon the quality of work and conduct, capacity as a lawyer, professional conduct, public reputation in general, and character and integrity as certified by the District Magistrate and the District Judge. For the said purpose, the District Magistrate and the District Judge are required to maintain a character roll and a record of the work done by the officer and the capacity displayed by him in discharge of the work. His work is also subject to strict supervision. The shortcomings in the work are required to be brought to the notice of the Legal Remembrancer. It will thus be seen that the appointment of the two sets of officers, viz., the Government Counsel in the High Court with whom we are concerned, and the District Government Counsel with whom the said decision was concerned, are made by dissimilar procedures. The latter are not appointed as a part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non-substitution by those who may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above" [Emphasis added] In Parshotam Lal Dhingra (supra), this Court held that whoever holds civil posts would be entitled to protection of their services in terms of Clause (2) of Article 309 of the Constitution of India in the event any disciplinary action is taken against them stating: "The underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure. Clause (2) protects government servants against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. It will be noted that in clause (1) the words dismissed and removed have been used while in clause (2) the words dismissed removed and reduced in rank have been used. The two protections are (1) against being dismissed or removed by an authority subordinate to that by which the appointment had been made, and (2) against being dismissed, removed or reduced in rank without being heard. What, then, is the meaning of those expressions dismissed removed or reduced in rank? It has been said in Jayanti Prasad v. State of Uttar Pradesh that these are technical words used in cases in which a persons services are terminated by way of punishment. Those expressions, it is urged, have been taken from the service rules, where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of Art" In Dhirender Singh and Others v. State of Haryana and Others [(1997) 2 SCC 712], termination of an order of promotion in favour of the appellant was not interfered with by this Court as the same had not been approved by the DIG, being the competent authority. In M.C. Mehta v. Union of India and Others [(1999) 6 SCC 237], this Court developed the "useless formality" theory stating: "More recently Lord Bingham has deprecated the useless formality theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton by giving six reasons. (See also his article Should Public Law Remedies be Discretionary? 1991 PL, p. 64.) A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27- 63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived." In Kendriya Vidyalaya Sangathan (supra), it was held: "It is clear that if after the termination of services of the said Dr. K.C. Rakesh, the orders of appointment are issued, such orders are not valid. If such appointment orders are a nullity, the question of observance of principles of natural justice would not arise" In Bar Council of India v. High Court of Kerala [(2004) 6 SCC 311], it was stated: "Principles of natural justice, however, cannot be stretched too far. Their application may be subject to the provisions of a statute or statutory rule." In R.S. Garg v. State of U.P. and Others [(2006) 6 SCC 430], it was stated: "A discretionary power as is well known cannot be exercised in an arbitrary manner. It is necessary to emphasize that the State did not proceed on the basis that the amendment to the Rules was not necessary. The action of a statutory authority, as is well known, must be judged on the basis of the norms set up by it and on the basis of the reasons assigned therefor. The same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise." For the reasons aforementioned, the impugned judgments cannot be sustained. They are set aside accordingly. The appeals are allowed. No costs.