GOVERNMENT VS ABDUL MOTALEB DEWAN 45 DLR AD 1993

  Analysis of the Fact:

Circular was passed on 4.6.81 in supersession of all previous orders in the matter, making the conservation of forests as the appointing authority for officers like the respondents, the conservator of the forests was authorized to draw the proceeding and impose penalty upon the respondents. Leave was granted in this appeal for determination of a common question of law namely whether the respondents who were admittedly appointed by the Chief Conservator of Forests could be compulsorily retired after a departmental enquiry by the Conservator of Forests on the strength of a circular.

Argument from the Appellant:

It was argued that

o An order of compulsory retirement is a major penalty under subsection 3(b) of rule 4 of the Government Servants ( Discipline and Appeal ) Rules, 1985. Sub rule 6 of the rule 4 provides that no authority subordinate to that by which a Government servant was appointed shall be competent to impose on him any major penalty. o As an order for compulsory retirement by the way of penalty amounted to removal from the service the respondents were entitled to protection under article 135 of our constitution.

 

Decision:

Appeal was dismissed and the impugned decision of Administrative Appellate Tribunal was affirmed.

Reasoning behind the decision:

The above decision was taken on the following grounds:

•      The respondents were entitled to the protection under article 135(1) of the constitution and such protection could not be taken away either by parliament in its Statue making power or by the President in the rule making power.

•      The Conservator of forests being subordinate in rank to the Chief Conservator of Frests could not as a designated officer exercise the power of the appointing authority namely the power to impose a penalty of compulsory retirement.

Principle:

An order for compulsory retirement by way of penalty amount to removal from the service for which protection under article 135 is available.

Importance of this case:

The judgment of this case protects the mandate of article 135(1) of our constitution so that no civil authority can not misuse the power of retiring public officers (Civil) without any guideline as per our constitution.