Compulsory Retirement: The concept understood

In a recently reported decision [Leela Sharma v. Govt of NCT, (2010) 170 DLT 170] the Delhi High Court examined the concept of 'compulsory retirement' to hold that it was one of the vital tools for the Government to ensure that inefficient public servants are discharged and thus the administrative machinery rests its functions upon efficient workmen. 

Approving the concept, the Bench inter alia observed as under;

11. The concept of compulsory retirement came into force to remove a public servant whose services are no longer useful to the general administration or in public interest; if it is felt that for better administration, for augmenting efficiency it is necessary to chop off the deadwood. The order of compulsory retirement has to be made having regard to the entire service record of the officer. Even un-communicated entries in the confidential record can be taken into consideration. The order of compulsory retirement is not to be treated as a punishment and carries no stigma. However, it has been held that the order of compulsory retirement shall not be passed as a shortcut to avoid departmental enquiry when such course is more desirable. The rule of compulsory retirement has been held to hold the balance between the rights of the individual Government servant and the interest of the public. The rule is intended to enable the Government to energise its machinery and to make it efficient by compulsorily retiring those who, in its opinion, should not be there in public interest. Fundamental Rule 56(j) has been held to confer absolute right to retire any Government servant on his attaining the age of 55 years if the authority is of the opinion that it is in the public interest to do so. The Supreme Court in Bishwanath Prasad Singh Vs. State of Bihar held that the object of such compulsory retirement is to weed out the worthless who have lost their utility by their insensitive, unintelligent or dubious conduct impeding the flow and promoting stagnation. It was held that the country needs speed, sensitivity, probity, non-irritative public relation and enthusiastic creativity which can be achieved by eliminating the deadwood, the paper-logged and callous. 

12. It is thus clear that an order of compulsory retirement is an important tool to keep any organization vibrant and to prevent its clogging and decay by the sheer weight of long standing employees who have ceased to be the dynamos to propel the organization further and for achieving its goals. The same enables the employer to, after the employee has worked for a certain number of years and / or has attained a certain age but before the age of superannuation, remove him. It is often found that certain employees after putting in considerable number of years of service lose their sheen and no longer remain productive. Their continuance in service is of no use to the organization.

13. In my opinion the objective of compulsory retirement is laudable. During the hearing, it was put to the counsel for the petitioner as to whether, considering the importance of the Schools, is it not desirable to have the concept of compulsory retirement in Schools. The importance of the Schools cannot be undermined; they play a vital role in shaping the future/next generation and hence the destiny of the community and the country. The onus of so shaping and igniting the minds rests in the hands of teaching faculty of the school. Often it is found and is human nature that persons who have the requisite qualification and validly join the noble profession of teaching, either fail to perform or though successful performers initially, over the years lose the zeal to so shape the destiny of children they are dealing with. Should the schools be forced to continue such persons, just to protect the tenure of service of the said persons and that too at the cost of the future citizens? The answer necessarily has to be in the negative.

Have a look at the decision.

Post script Rejoinder

After we had originally published this post, we came across a decision of the Supreme Court which further explains the implications underlying an order of compulsory retirement. In as much as we find these observations relevant for our readers, we are published the same in this post itself.


The Supreme Court in Pyare Mohan Lal v. State of Jharkhand observed as under;

8. In Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr., AIR 1992 SC 1020, this Court has laid down certain criteria for the Courts, on which it can interfere with an order of compulsory retirement and they include mala fides, if the order is based on no evidence, or if the order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e. if it is found to be a perverse order. The Court held as under:–

“(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. 

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or the Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary- in the sense that no reasonable person would form the requisite opinion on the given material : in short, if it is found to be a perverse order.

(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. 

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.”

9. Similar view has been reiterated by this Court in Posts and Telegraphs Board & Ors. Vs. C.S.N. Murthy, AIR 1992 SC 1368; Sukhdeo Vs. Commissioner Amravati Division, Amravati & Anr., (1996) 5 SCC 103; I.K. Mishra Vs. Union of India & Ors., AIR 1997 SC 3740; M.S. Bindra Vs. Union of India & Ors., AIR 1998 SC 3058; and Rajat Baran Roy & Ors. Vs. State of West Bengal & Ors., AIR 1999 SC 1661. This Court observed that there was a very limited scope of judicial review in a case of compulsory retirement and it was permissible only on the grounds of non-application of mind; mala fides; or want of material particulars. Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. 

10. In State of Gujarat & Anr. Vs. Suryakant Chunilal Shah, (1999) 1 SCC 529, this Court held that while considering the case of an employee for compulsory retirement, public interest is of paramount importance. The dishonest, corrupt and dead-wood deserve to be dispensed with. How efficient and honest an employee is, is to be assessed on the basis of the material on record, which may also be ascertained from confidential reports. However, there must be some tangible material against the employee warranting his compulsory retirement.

11. In State of U.P. & Anr. Vs. Bihari Lal, AIR 1995 SC 1161, this Court held that if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is permissible only on limited grounds. The Court further held that:

“…..What is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service.”

12. In State of U.P. & Ors. Vs. Vijay Kumar Jain, AIR 2002 SC 1345, this Court while dealing with the issue observed as under: 

“Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13-6-1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of the order of compulsory retirement does not mean that vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out, merely it is relatable to 11th or 12th year of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and the said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the Government while considering a case for compulsory retirement of a government servant. 

13. In Jugal Chandra Saikia Vs. State of Assam & Anr., AIR 2003 SC 1362, this Court held that where the screening committee is consisting of responsible officers of the State and they have examined/assessed the entire service record and formed the opinion objectively as to whether any employee is fit to be retained in service or not, in the absence of any allegation of mala fides, there is no scope of a judicial review against such an order.

14. In Nawal Singh Vs. State of U.P. & Anr., AIR 2003 SC 4303, a similar view has been reiterated. The Court observed as under: 

“At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority.

……Further, it is impossible to prove by positive evidence the basis for doubting the integrity of the judicial officer. In the present-day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis.

…..the lower judiciary is the foundation of the judicial system. We hope that the High Courts would take appropriate steps regularly for weeding out the dead wood or the persons polluting the justice delivery system”.

15. In Chandra Singh & Ors. Vs. State of Rajasthan & Anr., AIR 2003 SC 2889, this Court after examining the entire evidence on record came to the conclusion that the compulsory retirement awarded to the appellant therein, Chandra Singh, a Judicial Officer, was not in consonance with law. However, considering the report of the Committee and taking note of the adverse remarks made against him, the Court refused to grant him any relief. The relevant part of the judgment reads as under: 

“It will bear repetition to state that in terms of Rule 53 of the Pension Rules, an order for compulsory retirement can be passed only in the event the same is in public interest and/or three months’ notice or three months’ pay in lieu thereof had been given. Neither of the aforementioned conditions had been complied with…. 

We have, therefore, no option but to hold that the actions on the part of the High Court or the State in compulsorily retiring the appellants herein were illegal.

Article 235 of the Constitution of India enables the High Court to assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the deadwood. This constitutional power of the High Court cannot be circumscribed by any rule or order. We can usefully refer to some of the leading cases on Article 235:

1. State of Assam v. Ranga Mohd., AIR 1967 SC 903 (five Judges)

2. Samsher Singh v. State of Punjab, AIR 1974 SC 2192 (seven Judges) 

3. High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, AIR 1997 SC 2631.

xxx xxx xxx

In the instant case, we are dealing with the higher judicial officers. We have already noticed the observations made by the Committee of three Judges. The nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility.”

16. In Shiv Dayal Gupta Vs. State of Rajasthan & Anr., (2005) 13 SCC 581, this Court examined the case of the compulsory retirement of a Judicial Officer and came to the conclusion that the Review Committee had made an overall assessment considering the entire service record of the said officer and came to the conclusion that continuance of the said officer in service would be a liability to the Department and adverse to public interest as his ACRs. revealed that he was poor in writing the judgments and was advised to improve the same. His judicial work was found unsatisfactory and he had been advised to improve the same. His integrity was found doubtful in the year 1983. He had earlier been superseded while being considered for promotion in 1983 and he had been given an adverse entry in 1993 that he failed to inspire confidence in subordinate staff and lawyers and had a low rate of disposal. On the basis of the aforesaid adverse entries, he was given compulsory retirement vide order dated 9.11.2000. This Court refused to interfere with the said order in view of the fact that he could not raise proper allegations of mala fides or establish that the order of compulsory retirement was passed without application of mind. While deciding the said case, the court placed reliance upon the judgment of this Court in Vijay Kumar Jain (supra).

17. In M.P. State Cooperative Dairy Federation Ltd. & Anr. Vs. Rajnesh Kumar Jamindar & Ors., (2009) 15 SCC 221, this Court held that judicial review of an order of compulsory retirement is permissible if the order is perverse or arbitrary, as also where there is non-compliance of statutory duty by statutory authority but the court should not go into the factual findings. The factors not germane for passing an order of compulsory retirement should not be taken into consideration. The criteria and rules adopted by the employer must be adhered to, to determine whether the employee had become liable for compulsory retirement. An authority discharging a public function must act fairly.

18. Thus, the law on the point can be summarised to the effect that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the Statutory Rules. (See Surender Kumar Vs. Union of India & Ors., (2010) 1 SCC 158).  The Authority must consider and examine the over-all effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said Authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee “rendered himself a liability to the institution”, there is no occasion for the Court to interfere in the exercise of its limited power of judicial review.

 See Also

1. Voluntary Retirement: The concept understood

No maintenance to second wife of Hindu: High Court

n a recently reported decision [Mangala Bhivaji Lad v. Dhondiba Rambhau Aher, AIR 2010 Bom 122], a Division Bench of the Bombay High Court has declared that since second wife of a Hindu male is not recognized as a legally wedded wife, she is not covered within the ambit of the provisions requiring payment of maintenance by husband to wife. No persuaded to hold otherwise in view of the categorical provisions of the Hindu Marriage Act disregarding the validity of the second marriage, the High Court set aside the claim of maintenance by the second wife.

The Bench inter alia observed as under;

8. The different provisions of law made to enable a woman to claim maintenance are Section 25 read with Section 24 of the Hindu Marriage Act, Section 18 of the Hindu Adoption and Maintenance Act and Section 125 Criminal Procedure Code. Unlike the earlier two provisions, the provision under the Criminal Procedure Code is wider and available to any women irrespective of her religion. The question of right of a woman whose marriage is null and void (hereinafter referred to as “the second wife” for the sake of convenience) to seek maintenance under Section 125 Criminal Procedure Code as also under Section 25 of Hindu Marriage Act has already been settled by pronouncements of the Supreme Court which will be referred to presently. However, no direct decision of the Supreme Court on the right under Section 18 of Hindu Adoption and Maintenance Act was brought to our notice by either side.

9. Section 125 Criminal Procedure Code. The two decisions of the Apex Cour under this provision are : 1. Yamunabai’s case (supra). 2. Savitaben Sonabhai Bhatia V/S. State of Gujarat & Ors. reported in (2005) 3 S.C.C. page 636. 

In Yamunabai’s case, after holding that the marriages covered by Section 11 are void ipso jure, the Apex Court considered the meaning to be given to the expression “wife” used in Section 125 of Criminal Procedure Code. It held that the expression must be given the meaning in which it is understood in law applicable to the parties. It was then sought to be argued on behalf of the appellant before the Apex Court that the personal law of the parties to a proceeding under Section 125 of the Code should be completely excluded from consideration. While rejecting the argument, the Apex Court observed : 

The attempt to exclude “ altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been enacted in the interest of a wife, and one who intends to take benefit under subsection (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status or relationship with reference to the personal law that an application for maintenance can be maintained.”

With the above observations, the Apex Court rejected the appeal holding that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code.

10. In it’s subsequent decision in Savitaben’s case (supra) the Apex Court followed its decision in Yamunabai’s case in every respect. It was additionally sought to be argued in that case that a rigid interpretation given to the word “wife” goes against the legislative intent of protecting destitute and harassed women and also such interpretation operates harshly against the woman who unwittingly gets into relationship with a married man. The Apex Court dealt with the argument with following observations : 

This may be an inadequacy “ in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression 'wife' as per Section 125 of the Code refers to only legally married wife.” 

A N D 

“It may be noted at this juncture that the legislature considered it necessary to include within the scope of the provision an illegitimate child but it has not done so with respect to woman not lawfully married. However, desirable it may be, as contended by learned counsel for the appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression 'wife'.

11. Section 25 read with Section 24 of Hindu Marriage Act : The legal position as regards right of the second wife to claim maintenance under Section 25 of The Hindu Marriage Act, is crystallized in the decision of the Apex Court in Rameshchandra Daga V/S. Rameshwari Daga reported in ( 2005) 2 S.C.C. page 33 . In that case, the second wife had filed proceedings for a decree of judicial separation and maintenance for herself and her daughter. The husband filed a counter petition seeking declaration of his marriage to the appellant as a nullity on the ground that on the date of the marriage with the appellant, her marriage with the previous husband had not been dissolved by any court in accordance with the provisions of the Act. The Family Court had allowed the petition of the wife and granted in her favour a decree of judicial separation and maintenance and dismissed the counter petition of the husband. The husband went in appeal to the High Court and the wife preferred a crossobjection. The High Court held that the first marriage of the wife with her previous husband having not been dissolved by any decree of the court, her second marriage was in contravention of Section 5(1) of the Hindu Marriage Act and had to be declared as a nullity under Section 11 of the Act. On the above finding, the High Court granted decree of declaration of marriage as nullity in favour of the husband and set aside the decree of judicial separation, but, maintained the decree granting maintenance to the wife and her daughter. In the challenge to the order of maintenance before the Apex Court, it was contended that where a marriage is declared to be null and void by grant of decree, no order awarding permanent alimony or maintenance can be made in favour of the unsuccessful party under Section 25 of the Act. While considering the contention, the Apex Court held :

We have critically examined “ the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan's case (supra), the expression used in the opening part of Section 25 enabling the Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as 'at the time of passing of any decree,'it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.”

12. It was then argued that extending the benefit of Section 25 to a second wife would defeat the object and purpose of Section 11 to ban and discourage bigamous marriages. The Apex Court rejected the argument observing :

“20. It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependant. It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any  type of decree resulting in breach in a marriage relationship.”

“21. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.” 

On clarifying the position in law in above terms, the Apex Court confirmed the order of grant of maintenance to the second wife passed at the time of decree under Section 11 of the Hindu Marriage Act.

13. Since while deciding Daga’s case, the Apex Court has extensively relied upon it’s decision in Chand Dhawan V/S. Jawaharlal Dhawan reported in (1993) S.C. page 406, we consider it appropriate to refer to that decision at this place so as to complete the discussion on the subject. Chand Dhawan’s case arouse of a petition filed by wife simplicitor for grant of maintenance under Section 25 of The Hindu Marriage Act. In the appeal arising out of the said proceedings, the question that fell for consideration of the Apex Court was whether payment of alimony is admissible without the relationship between the spouses being terminated. The Apex Court while interpreting Section 25 held that Section 25 refers to any decree provided for under Sections 9 to 14 of the Hindu Marriage Act affecting or disrupting the marital status but does not include any order dismissing the petition under any of those sections thereby sustaining marital status. Hence, in the case of dismissal of the petition under any of the provisions under Sections 9 to 14, no alimony can be granted to the wife petitioning under Section 25. It has further observed that, however, without affectation or disruption to the marital status, a wife can claim maintenance under Section 18(1) of the Hindu Adoption and Maintenance Act or under Section 125 Criminal Procedure Code, whichever applicable. 

14. Section 18 of The Hindu Adoption and Maintenance Act : The last provision available for maintenance is Section 18 of The Hindu Adoption and Maintenance Act. The relevant portion of Section 18 reads as follows :

"18. Maintenance of wife 
(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance 
(a) to (c)................
(d) If he has any other wife living ;
(e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.”

15. There are two diametrically opposite decisions of two different High Courts on the question of right of the second wife to claim maintenance under this provision that are relied upon by the parties. Mr. Gokhale relies upon the decision of the Delhi High Court in the case of Smt. Narinder Pal Kaur Chawla V/S. Manjit Singh Chawla reported in AIR 2008 Delhi 7 whereas Mr. Akerkar, the learned counsel for the respondent relies upon the decision of Full Bench of Andhra Pradesh High Court in the case of Abbayolla M. Subba Reddy V/S. Padmamma, reported in AIR 1999 Andhra Pradesh 19. A glance at the decisions would show that in both the matters the arguments advanced on behalf of the second “ wife” before the two courts are almost same. The same arguments have also been advanced before us. They can be enumerated as follows :

(i). The Hindu Adoption and Maintenance Act does not define expression “Hindu wife”. As section 18 of the Act confers statutory right of maintenance on every wife, there is no valid reason to restrict the application of such a wife to a legally wedded wife.

(ii). Section 18(2)(d) says that a “Hindu wife” shall be entitled to live separately from her husband without forfeiting her claim for maintenance if he has any other wife living. The provision will be applicable to a Hindu wife whether married before or after the commencement of the Act, as long as the husband has another wife living. 

(iii). The Maintenance Act is a piece of beneficial and social legislation intended for the benefit of women and children and must be construed liberally. Therefore, even if the marriage is void abinitio the second wife is entitled for maintenance. .

(iv). Section 25 of the Hindu Marriage Act confers jurisdiction on the court to grant permanent alimony and maintenance to a wife or a husband at the time of passing any decree under the Act and that even a woman whose marriage is declared to be null and void under Section 11 of the Act is entitled to get alimony and maintenance. Therefore, it has to be inferred that the legislature intended to confer statutory right of maintenance even in cases where her marriage contravenes Section 5 of the Act and hence is null and void. 

16. Full Bench of Andhra Pradesh High Court rejected all the above arguments to hold that the second wife is not entitled to maintenance under Section 18 of the Hindu Adoptions and Maintenance Act. Taking support from Yamunabai’s case (supra) it held that marriage in contravention of Section 5(i) of the Hindu Marriage Act is void abinitio. The personal obligation of a Hindu husband to maintain his wife and the right of a Hindu wife for maintenance are incidents of the status of matrimony. Therefore, unless the marriage is valid Hindu wife cannot claim maintenance under Section 18 of the Act. The expression any other wife in Clause “ ”(d) of Section 18(2) means any other legally wedded wife i.e. where both the marriages had taken place prior to the Hindu Marriage Act coming into operation.

17. As regards the contention of the Maintenance Act being a piece of beneficial legislation, Andhra Pradesh High Court was of the opinion that the legislation cannot be construed as conferring maintenance rights on a woman, whose marriage is void, under the Hindu Marriage Act. While a legislative enactment may be liberally construed, the liberality cannot overstep the legislative limits of interpretation putting into the legislation something which is not there. If it is felt that a particular enactment causes hardship and inconvenience, it is for the legislature to redress it, but it is not for the court to ignore the legislative injunction. As far as Section 25 of Hindu Marriage Act is concerned, Andhra Pradesh High Court held that for a Hindu wife or husband to make claim for maintenance under the provision, there must be a matrimonial petition filed under the Hindu Marriage Act and then on such a petition a decree must be passed by the Court concerning the marital status of the wife or husband. Thus the whole exercise is within the gamut of a broken marriage. But where the question of nullity is in issue and is contentious, the court had to proceed on the assumption until the contrary is proved that the applicant is the wife. It is in that sense, Section 25 should be appreciated. Both the statutes i.e the Hindu Marriage Act and Hindu Adoption and Maintenance Act are codified laws on the respective subjects and by liberality of interpretation, interchangeability cannot be permitted so as to destroy the distinction on the subject of maintenance.

18. Division Bench of Delhi High Court has taken a different view on the question and granted maintenance to the second wife on an application filed under Section 18. According to Delhi High Court, a Hindu husband is estoped from challenging validity of the second marriage in view of the wrong committed by him in not disclosing to the second wife the factum of his first marriage, otherwise it would amount to giving premium to the husband for defrauding the  second wife. It was of the opinion that the legislature never intended that a woman who is in the position of a second wife, be not treated as the “wife” atleast for the purposes of Section 18 of the Act and be deprived of her right to seek maintenance. The Delhi High Court drew distinction between the claim of maintenance under Section 125 CrPC and Section 18 of the Act in order to distinguish the decision of the Apex Court in the case of Savitaben. 

19. As regards Section 18(2)(d), the interpretation placed by the Delhi High Court thereupon, was that in the absence of definition of expression Hindu “ wife”, the same must be interpreted in the spirit in which it appears in Section 18 of the Act without taking any external aid as Section 4 of the Act gives an overriding effect to it. It then observed as follows :

“This Act was brought into force in the year 1956. As on that date Hindu Marriage Act, 1955 was already in force, which contains provision like Section 5 regarding void marriages. If “second wife”, though her marriage is void under the Hindu Marriage Act, was to be denied maintenance, then the legislature would not have included provision like clause (d) in subsection (2) of Section 18 of the Act or would have clarified that this clause was added only to take care of those second marriages performed before the Hindu Marriage Act, 1955 was enacted when polygamy was permissible for male Hindus.”

The Delhi High Court discussed use of expression “concubine” in Clause (e) of subsection (2) of Section 18 of the Act to observe that the legislature has carved out a distinction between “second wife and concubine and that the ” “ ” expression “Hindu wife” and “wife” are definitely to be placed on a higher pedestal than “concubine”. 

20. Finally the Delhi High Court felt that when Law’s terms are inadequate and lead to loose ends, the court can rely on it’s inherent powers to do justice. It observes at para 40 that :

“Strictly, the statutory entitlement of the Court may not apply but having the recognised right and necessity to enforce it, the Court can, in exercise of its inherent powers reach out justice by giving remedial and such salutary reliefs. Justice after all is another name of fairness. It cannot be blind to the facts in a given case and should reach out in its mercy those results which would be necessary to avoid ruinous consequences like economic or moral destitution. Ultimately, having based the relief on Sec. 151 of the C. P. C. with the aid of inherent powers and drawing upon the principles underlying Sec. 25 of the Hindu Marriage Act, it is implicit that before maintenance is granted, the need to grant such must exist as well as the grantee must fulfill the ordinary conditions like that of chastity, not being married to any other person and further of not being in a position to maintain herself.” 

It is thus seen that after the extensive discussion on the statutory provisions, the Delhi High Court founded it’s order not on the provision of Section 18 of the Hindu Adoption and Maintenance Act, but, on the inherent powers of the Court under Section 151 CPC. With respect we do not agree with such a course of action because it is well established that the inherent powers are required to be exercised by the court only in the absence of statutory provisions and not to circumvent a statutory provision. Besides, inherent power of Section 151 CPC is only a source of power to the court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the court. It cannot be a source of right to claim maintenance. In the circumstance, in our opinion, the decision of the Delhi High Court does not really help the appellant in her contention that the second wife is entitled to claim maintenance under Section 18.

21. In any case, we are unable to persuade ourselves to agree with the discussion on the position in law on the question contained in the Delhi High Court decision though one may want to agree with the sentiments expressed therein on the conduct of the husband in entering into  the second marriage during the subsistence of the first marriage by keeping the second wife in dark about the first marriage. It must be clarified at this stage that in the case on hand, there is a finding of fact of the Family Court supported by the evidence on record that the appellant married the respondent with full knowledge that he was already married and that his first wife is living. In the circumstances, the appellant cannot lay any claim to sympathy on that count. The decision of the Andhra Pradesh High Court on the other hand, in our considered opinion, espouses the correct position in law on the subject.

22. We have already seen that it is well settled position in law that a marriage contravening Section 5(i) of the Hindu Marriage Act is void ipso jure and the woman entering into such a marriage is not wife within “ ” the meaning of either the Hindu Marriage Act or Section 125 Criminal Procedure Code. The expression “wife” used in both the statutes means only a legally wedded wife. The Hindu Adoption and Maintenance Act cannot be treated differently for the meaning to the expression “wife” used therein. The expression must be given the meaning in which it is understood in the law applicable to the parties. Since the institution of marriage and the very relationship of husband and wife originates from the personal law applicable to the parties, there can be no escape from reference to the personal law while understanding the expressions “husband” and “wife” used in different statutes. As far as Hindus are concerned, the law relating to marriage amongst Hindus is codified by Hindu Marriage Act and therefore unless the marriage is valid under the provisions of the Hindu Marriage Act the parties entering into such a marriage cannot describe themselves as “husband” and “wife” for the purposes of application of different statutes or for deriving the benefits available under different statutes.

23. As regards the argument based on Section 18(2)(d) of Hindu Adoption and Maintenance Act is concerned, we are inclined to agree with the view expressed by the Andhra Pradesh High Court, which has held that the ground laid down under the provision can obviously exist only in case of marriages solemnized before the Hindu Marriage Act came into operation. Had the Hindu Marriage Act not laid down monogamy as a rule of law and that Hindu husband cannot marry another wife after the commencement of that Act, the Clause (d) enabling a wife to be entitled for separate residence without forfeiting her claim to maintenance if her husband has any other wife living, could not have been included under Section 18. Further, a bigamous marriage contracted after coming into force of the Hindu Marriage Act being null and void, question of having another wife cannot arise after the Hindu Marriage Act came into operation. Therefore, it can be applicable only in cases where a husband has entered into two marriages prior to coming into operation of the Hindu Marriage Act. 

24. Mr. Gokhale, then sought to argue that if the expression wife is to mean only legally “ ” wedded wife, it would render Section 23 of the Hindu Marriage Act ineffective. According to him, the interpretation would take away the discretion provided to the court under Section 23 to grant reliefs under the Hindu Marriage Act. We have already seen above that the application filed by the appellant herein before the Family Court was under Section 18 of Hindu Adoption and Maintenance Act and not under Section 25 of the Hindu Marriage Act. Further, the position as regards the meaning to be given to the expression “wife” has already been settled by the pronouncement of the decision of the Apex Court in Daga’s case. In that circumstance, there is no question of this Court considering the impact of the meaning upon Section 23.

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Labour Commissioner cannot decide who is workmen: Supreme Court

Hugely restricting the scope of Labour Commissioners, the Supreme Court in a recent decision has declared that it is beyond the prerogative of Labour Commissioner to decide upon the fact as to whether a particular person is a workman in order to be amenable to the labour and industrial legislations. Declaring the law to this effect, the Bench inter alia observed as under;

13. We are faced by the question as to whether a person is a workman or not could be said to be related to the applicability and interpretation of the Standing Orders along with the issue of whether the orders of transfer and subsequent termination were justified or not. As far as the labour Commissioner is concerned, he is only a ‘Conciliation Officer’ as envisaged under the U.P. Industrial Disputes Act, 1947 and ‘Certifying Officer’ under the Standing Orders. The Standing Orders, particularly Clause ‘W’, vests the Labour Commissioner with the jurisdiction and power to decide on the applicability and interpretation of the Standing Orders. On the other hand, Section 11-C of the U.P. Industrial Disputes Act, 1947 and Section 13A of the Industrial Employment (Standing Orders) Act, 1946 grant the power and jurisdiction to render a decision on the issue of interpretation and application of the Standing Orders to the Labour Court.

14. Without going into the issue as to whether such a power and jurisdiction could be vested on the Labour Commissioner, we may decide the issued raised herein from another angle. The issue of whether or not a person is a ‘workman’ within the meaning of U.P. Industrial Disputes Act, 1947 is a matter to be decided by a competent court, after allowing the parties to lead evidence. Thereafter, on proper appreciation of the materials on record including the oral evidence, a decision could be rendered and the issue could be determined. The enquiry before the Labour Commissioner is of a summary nature and while exercising such a power of summary nature, the Labour Commissioner cannot decide and examine factual matters relating to an issue as to whether or not the person concerned is a workman or not. 

15. In the case of Sharad Kumar v. Govt. of NCT of Delhi, reported at (2002) 4 SCC 490, an issue regarding whether or not a person is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 came for consideration before this Court. This Court held that in such a matter the State Government could not arrogate upon itself the power to adjudicate such an issue in as much as the same could be determined by the Industrial Tribunal or the Labour c court on the basis of the materials to be placed before it by the parties. In this instance, the Division Bench has erroneously held that the aforesaid issue is an ancillary issue to the issue of  applicability and interpretation of the Standing Order.

16. Whether or not a person is a workman is a matter that relates primarily to facts and circumstances of the case. The same has nothing to do with the application and interpretation of the Standing Orders. What needs to be examined and looked into for deciding the aforesaid  issue is the nature of job performed by the concerned person, duties and responsibilities vested on him and other such relevant material. In our considered opinion, the Division Bench of the High Court committed a mistake in determining the said issue as an ancillary to that of the applicability and interpretation of the Standing Order. A perusal of the earlier Writ Petition filed by the respondent no. 1 numbered as Writ Petition No. 8630 of 2008 would indicate that what was also challenged in the said writ petition was the order of termination passed against the respondent. The order of termination also could not have been examined and scrutinized as such power and jurisdiction is not vested with the Labour Commissioner.

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Act of God: The law revisited

In a recently reported decision [Indian Rare Earths Ltd. v. Managing Director, Southern Electricity Supply Company of Orissa Ltd., AIR 2010 Ori 115] the Orissa High Court has clarified the scope of a well indoctrinated concept under contractual law relating to vis majure or 'Act of God' which absolves the parties of the liabilities under the agreement. The High Court was dealing with a demand by the electricity supply company towards electricity charges where it was argued that due to the 'Act of God' demand could not be affixed on the consumer. 

The High Court, explaining the concept, inter alia observed as under;

6. Aforesaid provisions go to show that the demand charge relates to a charge on the consumer for keeping reserve the energy to supply him to the extent of contractual demand of energy. A consumer is liable to pay the same if the energy is supplied to the consumer by the licensee whether he draws or utilizes the same or not. The aforesaid relationship of the consumer with the supply company arises out of a contract entered into between them, having mutual obligations. Here in this case, it is seen that by the act of the God, it became impossible for the supply company to supply the power to the consumer. The supervening circumstances in which neither of the parties had any control, made the contract for the same impossible of being performed & as such during the said period, it can be said that the contract was hit by the "doctrine of frustration". In such a situation the supply company has no obligation to supply power & if any claim would have been made by the consumer for non-supply of energy, it goes without saying that the company could have escaped from the liability thereof taking the resort to the aforesaid doctrine of frustration. When the company could have escaped from the liability by availing of the doctrine of frustration, in such premises, it is fallacious to say that it could have pressed the consumer to pay the tariff charge even though, it has not supplied the power to the Petitioner. In this regard Section 56 of the Indian Contract Act, 1872 envisages as follows: 

56. Agreement to do impossible act - An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

Compensation for loss through non-performance of act known to be impossible or unlawful. Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, & which !he promise did not know to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promise sustains through the non-performance of the promise.

In the case of Satyabrata Ghose v. Mugneeram Bangur & Co. and Anr. reported in A.I.R. 1954 S.C. 44, the Hon'ble Apex Court in this regard has held as follows:

The essential idea upon which the doctrine of frustration is based is that of impossibility of performance of the contract; in fact impossibility & frustration are often used as interchangeable expressions. The changed circumstances make the performance of the contract impossible & the parties are absolved from the further performance of it as they did not promise to perform an impossibility. The doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done & hence comes within the purview of Section 56. To the extent that the Contract Act deals with a particular subject, it is exhaustive upon the same & it is not permissible to import the principles of English law 'dehors' these statutory provisions. The decisions of the English Courts possess only a persuasive value & may be helpful in showing how the Courts in England have decided cases under circumstances similar to those which have come before Indian Courts. In deciding cases in India the only doctrine that we have to go by is that of supervening impossibility or illegality as laid down in S. 56, taking the word 'impossible' in its practical & not literal sense. Section 56 lays down a rule of positive law & does not leave the matter to be determined according to the intention of the parties. In cases, where the Court gathers as a matter of construction that the contract itself contained impliedly or expressly a term, according to which it would stand discharged on the happening of certain circumstances, the dissolution of the contract would take place under the terms of the contract itself & such cases would be outside the purview of Section 56 altogether. They would be dealt with under Section 32 which deals with contingent "contracts or similar other provisions contained in the Act. In the large majority of cases, however, the doctrine of frustration is applied not on the ground that the parties themselves agreed to an implied term which operated to release them from the performance of the con tract. The relief is given by the Court on the ground of subsequent impossibility when it finds that the whole purpose or basis of a con tract was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond what was contemplated by the parties at the time when they entered into the agreement. When such an event or change of circumstance occurs which is so fundamental as to be regarded by law as striking at the root of the contract as a whole, it is the Court which can pronounce the contract to be frustrated & at an end. The Court undoubtedly has to examine the contract & the circumstances under which it was made. The belief, knowledge & intention of the parties are evidence, but evidence only on which the Court has to form its own conclusion whether the changed circumstances destroyed altogether the basis of the adventure & its underlying object. This is really a rule of positive law & as such comes within the purview of Section 56 of the Contract Act.

7. In view of the aforesaid authoritative pronouncement in this case, as during the period in dispute there being no contractual obligation on either of the parties, levy of demand on the Petitioner as made by the Opp. Party- Company cannot be sustained.

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Bond versus Promissory Note: The distinction revisited

In a recently reported decision [Bhismat Pandey v. Phoola, AIR 2010 MP 147], the Madhya Pradesh High Court has delinated the distinction between a bond and a promissory note. The High Court was dealing with the challenge to the validity of an order passed by the lower court holding a particular instrument as a promissory note to hold that in terms of the provisions of the Indian Stamp Act, 1899 an instrument could be both a bond and a promissory note. The High Court explained the law in the following terms;

6. To appreciate the rival contention of the parties, it would be appropriate if the definition of bond in the Indian Stamp Act, 1899 may be referred which reads thus:
Bond: Section 2(5) "Bond" includes:

(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and 

(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another. 

Promissory note has been defined in Section 2(22) which reads thus:

Promissory Note: Section 2(22) "Promissory note" means a promissory note as defined by the Negotiable Instruments Act, 1881;

It also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen.

As per Section 2(22) the definition of Promissory note shall be as defined by Negotiable Instruments Act, 1881. For ready reference the definition of promissory note as defined in Section 4 of the Negotiable Instruments Act may be referred, which reads as under:

4. "Promissory note".- A "promissory note" is an instrument in writing (not being a bank-note or a currency- note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.

Now in the light of aforesaid definitions firstly the definition of promissory note may be looked into. Section 4 of the Negotiable Instruments Act provides as under:

(a) An instrument in writing. 

(b) An unconditional undertaking, signed by the maker, to pay a certain sum of money only.

(c) Money is payable to the person in whose favour the promissory note is executed or to the order of a certain person or to the bearer of the instrument. It should be signed by the maker. From the perusal of aforesaid document, it is apparent that except the money was payable to the order of or the bearer of instrument, other conditions were incorporated in the document.

7. Under Section 2(h) of the Indian Contract Act, 1872, an agreement enforceable by law is a contract. Under Section 10 of the Contract Act all agreements are contracts if they are made by free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void. An "agreement" or a "memorandum of agreement to sale of immovable property" has been provided in Schedule 1-A of Indian Stamp Act, which provides stamp duty when possession of property is delivered or is agreed to be delivered without executing the conveyance, the stamp duty as of conveyance on the market value of property is to be paid. But when possession of property is not given 1 % of the total consideration of property, set forth in the agreement or in the memorandum of agreement, is payable. But in the present case, the sale deed was already executed and possession was also delivered to the petitioner herein. In the set of facts, it does not fall within the purview of agreement as provided under Schedule 1-A of Indian Stamp Act.

8. Now the definition of "bond" may be looked into, as provided under Section 2(5) of the Indian Stamp Act, which has been referred hereinabove. As per the definition, the essential ingredients of bond are as under:

(1) The person obliges himself to pay money to another.

(2) On a condition that the obligation shall be void if the specific act is performed or not performed, as the case may be.

(3) The instrument must be attested by a witness.

(4) That the amount shall not be payable to order or bearer and a person obliges himself to pay money to another.

9. A Full Bench of this Court had an occasion in Sant Singh (supra), to consider the essential and distinctions of bond and promissory note. The Full Bench held the essentials of a promissory note as under:

(1) An unconditional undertaking to pay;

(2) The sum should be a sum of money and should be certain;

(3) The payment should be to the order of a person who is certain, or to the bearer of the instrument; and

(4) The maker should sign it.

If these four conditions exist, the instrument is a promissory note.

In respect of bond, the Full Bench held that following are the essentials of a "bond":

(1) There must be an undertaking to pay;

(2) The sum should be a sum of money but not necessarily certain;

(3) The payment will be to another person named in the instrument;

(4) The maker should sign it;

(5) The instrument must be attested by a witness; and

(6) It must not be payable to order or bearer.

The Full Bench on a comparison between the essentials of promissory note and those of bond found that there are three distinguishing features, which are as under:

(i) If money payable under the instrument is not certain, it cannot be a promissory note, although it can be a bond.

(ii) If the instrument is not attested by a witness, it cannot be a bond, although it may be a promissory note.

(iii) If the instrument is payable to order or bearer, it cannot be a bond, but it can be a promissory note.

Defining aforesaid the two peculiar features of bond has been narrated as under:

(a) Positive - it must be attested by a witness.

(b) Negative - it must note be payable to order or bearer.

Appreciating aforesaid, the Full Bench held in Paras 7, 8 and 9 as under:

7. It is also clear that if in an instrument the above two distinguishing features positive and negative) are present, then, even if the four essentials of a promissory  note are also present, the instrument will still be a bond, because all the ingredients of a promissory note are also present in a bond with the exception that whereas a promissory note can be payable, apart from the person named in it, to the order of that person or to the bearer of the instrument, a bond cannot be payable to order or bearer. 

8. Therefore, an instrument, which is not payable to bearer or order but is attested by a witness will also be a bond within the definition of Section 2(5) of the Stamp Act, although simultaneously it may also fall within the definition of a promissory note within the meaning of Section 2(22) of the Stamp Act read with Section 4 of the Negotiable Instrument Act.

9. Having thus opined out the distinction between promissory note and a bond, we may at once say that in the last mentioned situation that is, where an instrument comes within the description of a promissory note as well as that of a bond, by virtue of Section 6 of the Stamp Act, it will be chargeable only with the highest of the duties chargeable, i.e., stamp duty as chargeable on a bond. That section reads thus: 

Subject to the provision of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different be chargeable only with the highest of such duties: 

Provided that nothing in this Act contained shall render chargeable with duty exceeding one rupee a counterpart or duplicate of any instrument chargeable with duty and in respect of which the proper duty has been paid. 

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