Judgment

DESAI, J. :- Murari Mohan Deb, a Forester in the employment of Tripura. Government was compulsorily retired from service by the order dated October 12, 1962 of the 4th respondent Chief Forest Officer. Since then he is knocking at the doors of the courts in search of illusory justice and chased mirage till he reached the age of superannuation. Alas! the ways of justice like the ways of Providence are inscrutable. And who is to blame, if not, the system.

2. The appellant questioned the correctness and validity of the order of compulsory retirement in Writ Petition No. 22 of 1964 which came to be disposed of after a lapse of six years on November 28, 1970. In his writ petition the appellant had impleaded (1) The Secretary to the Government of India, Ministry of Home Affairs, (2) The Chief Commissioner, Tripura, (3) The Secretary to the Government of Tripura, Forest Department and (4) The Chief Forest Officer, Government of Tripura, last one being the one who had passed the impugned order of compulsory retirement. The grievance in the writ petition was that penalty of compulsory retirement was imposed upon the appellant without affording the appellant an adequate opportunity to defend himself and to explain the charges levelled against him. In short it was alleged that the enquiry was held in violation of the principles of natural justice.

3. The respondents resisted the writ petition inter alia contending that as the punishment of compulsory retirement does not tantamount to dismissal or removal from service as contemplated by Art. 311(1) and therefore, no formal enquiry was necessary to be held before imposing the penalty. It was contended that adequate opportunity was afforded to the appellant to controvert the charges and defend himself.

4. Surprisingly, when the matter was taken up for hearing, the learned Judicial Commissioner suo moto raised the objection that in the absence of Union of India being made a party, the petition was not properly constituted.

5. After an elaborate discussion, the learned Judicial Commissioner recorded a finding that Government of India was a necessary party and in its absence the petition is incompetent and must be rejected. After having reached this firm conclusion, the learned Judicial Commissioner proceeded to investigate the contention of the appellant that the enquiry against him was held in violation of the principles of natural justice, and that the Chief Forest Officer being not the appointing authority could not impose the penalty of compulsory retirement on the appellant. In respect of the second contention, the learned Judicial commissioner held that as it has been unquestionably established that the appellant was appointed by the Chief Commissioner, the Chief Forest Officer, a subordinate of the Chief Commissioner was not competent to impose the penalty of compulsory retirement and therefore on merits the order was bad. However, consistent with his view that the writ petition in the absence of Union of India was incompetent, he rejected the writ petition. Hence this appeal by special leave.

6. This appeal reached hearing on July 26, 1984 and after hearing Mr. D.N. Mukherjee, learned counsel for the appellant and Mr. Abdul Khader, learned counsel for Tripura Administration, we told them that the appeal is being allowed and the impugned order is being set aside. However, at this stage, Mr. Abdul Khader, learned counsel for the State of Tripura pointed out that as the appellant even on his showing has reached the age of superannuation, even if the impugned order is illegal and invalid, the relief of reinstatement cannot be granted to him. As the facts were not clear, a direction was given that the matter be listed on August 7, 1984 for clarification about the date of superannuation of the appellant. At the resumed hearing it was conceded that, had the appellant not been compulsorily retired from service, he would have retired on superannuation on December 6, 1978. In this fact situa