Ganga Nath vs Dharmarth Department

Jia Lal Kilam, J.—This is a civil second appeal and is directed against an order of the learned Addl. District Judge Jammu dated 10-1-1955.

The following facts have given rise to this litigation:

The plaintiff appellant was an employee of the Dhamarth Department, and at the time of his retirement he was holding the post of Mohatamim

Dharmarth. His retirement fell due on 23rd Katik 2005, but actually he was relieved on 24th Katik, 2005, and permission was accorded to him to

avail himself of four months' privilege leave to take effect from 25th Katik 2005. The plaintiff was yet enjoying his privilege leave, when in the

meantime a pamphlet named as ""Rape of Dharmarth"" was published. This pamphlet contains a severe attack on the functioning of the Dharmarth

Department. The Dharmarth Department had a suspicion that the plaintiff was the author or at any rate the instigator of this pamplet, and on the 4th

March, 1949 (21st Phagan 2005) he was put under suspension. The plaintiff was subsequently dismissed from service.

The plaintiff having been put under suspension brought the present suit on 9th Bhadoon 2006 for recovery of the arrears of his pay which

according to him amounted to Rs. 144/- and also sought a declaration that the order of his suspension dated 4th March 1949 (21st Phagon 2005)

was ineffective as being illegal, mala fide and ultra vires. The order of dismissal was passed by his Highness the Maharaja Bahadur dated 7th

September 1949 on a recommendation by the Dharmarth Council.

The defendant, Dharmarth Council, resisted the suit on a number of grounds. It was pleaded that the inquiry was conducted in the presence of

the plaintiff and it was found that the plaintiff was the author of the pamphlet known as the ""Rape of Dharmarth"" and that ultimately his dismissal

from service was ordered by His Highness the Maharaja Bahadur. It was ""further contended that an order passed by His Highness could not be

challenged in a court of law and as such the plaintiff's suit merited dismissal. It was also submitted in the written statement that the plaintiff having

been found guilty of gross misconduct was liable to forfeit his pension and any other amenities to which he may have been entitled for his past

services. A further contention advanced by the defendant was that the plaintiff was motivated in writing the. scurrilous pamphlet under discussion,

by non-acceptance of his request for a further extension of his service by a year.

The trial court raised a number of issues. The main points that arise in this case are as to whether the plaintiff could have been placed under

suspension during the period when he was on his post-retirement privilege leave. This would resolve itself further into the question as to whether

the service of an officer terminates on the date of his retirement or whether it continues to the end of his post retirement leave. The next point that

needs being gone into is as to whether the order of dismissal passed by His Highness has been passed by him as a sovereign of the State or as a

heir to the founder of the Dharmarth Trust. It is admitted on both sides that the plaintiff was relieved of his duties on 24th Katik 2005 which was

the date of his retirement. The lower appellate court has however recorded its finding in this behalf to the effect that the plaintiff continued in service

during the period of the post retirement privilege leave. Basing his argument on what he calls as Audit interpretation, the learned Addl. District

Judge holds that the grant of privilege leave after retirement would mean extension of service. It may be noted here that courts of law are not

bound by departmental interpretation of rules, but have to interpret these rules according to the language and other canons of interpretation. For

audit purposes the Audit Department may, treat such an employee as on extended service, but it is possible that a pure legal interpretation may

lead to a different conclusion. In the present case we are of the definite opinion that post retirement leave can by no stretch of imagination be

treated as extension in service. The matter has been dealt with in a ruling of the Supreme Court Jai Ram Vs. Union of India (UOI), . In this case a

servant of the Government, of India had expressed his desire to retire from service. This request of his was accepted by the Government and he

was retired on a particular date. For special reasons, he was given four months' post retirement privilege leave. While he was on such leave he

changed his mind and made a request to the Government that he may be permitted to withdraw his previous request of retirement and that he may

be permitted to join his service. This request of his was turned down on the ground that since his service had ceased on the date of his retirement

and that he was on post retirement leave when he had made the subsequent request for withdrawal of his earlier request for retirement, he could

not be permitted to withdraw his application for retirement. In this behalf their Lordships of the Supreme Court have observed that:

But where the service of the servant has ceased, because of his retirement, he cannot be held to continue in his service, though at the time he is on

post-retirement leave granted to him under special circumstances. It is no longer competent to him to apply for joining his duties, even though the

post retirement leave had not then run out.

This authoritative pronouncement of their Lordships of the Supreme Court would therefore conclusively establish that in the present case the

services of the plaintiff had terminated on 24th Katik 2005 and that his subsequent post retirement leave would make absolutely no difference; It

would further follow from it that since his service had ceased, no order of suspension or dismissal could be passed with regard to him. As already

stated, an order of suspension or dismissal could be passed only with regard to a person who was in actual service on the date when such an order

was passed.

Great stress was laid by the defendant's learned Counsel that the order of dismissal was made in this case by His Highness and as such it could

not be challenged in a civil court. That the order of dismissal was made by His Highness is a fact, but even then the question would arise as to

whether the said order was passed by His Highness as the sovereign of the State or as one in charge of the Dharmarth Department, The trial court

has given a historical background of the Dharmarth Department as to how Maharaja Gulab Singh laid the foundation of the Dharmarth Trust and

how his illustrious son, Maharaja Ranbir Singh, further strengthened the foundation of this Trust and framed an Am known as Ain-i-Dharmarth. All

these years the Dharmarth Trust was functioning under the direction of a Council known as the Dharmarth Council. During the rule of Maharaja

Pratap Singh the Dharmarth Council was abolished and the management of the Dharmarth Department was entrusted to the State. After that His

Highness Maharaja Hari Singh passed an order known as Order No. 1 of 1991 by which the Dharmarth Department ceased to be under the

Control of the Government and in its place a Council independent of the Government was appointed for its control and direction. The Council was

vested with power to manage the Dharmarth property. Para 3 of the order reads as follows:

The management of the Dharmarth Department is hereby vested in the Dharmarth council as if the Council were a registered company under the

Companies Regulation No. XI of 1977.

The preamble to order No. I of 1991 shows that it was promulgated by His Highness on the ground that the management of the Dharmarth

Council was not carried out in accordance with the wishes of its pious founder, and in order to. carry out the desire of its pious founder, the

management of the Trust was vested in a Council independent of the Government. This would make the position of the Dharmarth Trust quite

clear, and would show that the Trust is a private concern the management whereof was vested in a Council which had to function as a private

company under the Companies Act. It is therefore obvious that the position of His High ness vis-a-vis the Trust would not be that of a Ruler of the

State. He is simply the head of the Trust, who functions with regard to Dharmarth as a heir of its pious founder. As a matter of fact Maharaja

Gulab Singh who was the founder of this Trust had appointed Maharaja Ranbir Singh as a trustee for carrying out the purpose of this Trust. It

should be made known here that every order passed by His Highness, cannot be said to have been passed by him as the sovereign of the State. In

the present case the Dharmarth Council held some sort of an inquiry into the conduct of the appellant and after having recorded some findings

against him submitted the papers to His Highness as the supreme Head of the Trust for orders, though the Council according to Order No. I of

1991 were themselves competent to pass such an order, as has been passed by His Highness, Why should the Council invoke the orders of His

Highness, in a matter which they themselves were competent to deal with might suggest a number of inferences as have been pointed out by the

lower appellants court in its, otherwise very lucid judgment. But we need not go into this question for the reason that the legal and constitutional

position is such that if His Highness has passed an order in a matter pertaining to the Dharmarth Trust, such an order cannot be said to have been

passed by him as the sovereign of the State but simply as an august person who happened to be the head of the Dharmarth Council. Such an order

if it is in contravention of the provisions of the relevant law or rules, can be certainly impugned in a court of law.

Taking all this into consideration, we are of the opinion that the said order of His Highness the Maharaja Bahadur passed by him not as the

Ruler of the State but as the Head of the Dharmarth Department cannot be treated such an order as cannot be questioned in a civil court. We,

therefore accept this appeal, set aside the order of the lower appellate court, and restore the order of the trial court In view of the peculiar

circumstances of the case, parties shall bear their own costs throughout.

M.A. Shahmiri, J.

I agree.