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CASE NO.: Appeal (civil)  31 of 2005

PETITIONER: Ishwar Singh

RESPONDENT: State of Rajasthan and Ors.

DATE OF JUDGMENT: 05/01/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T  

(Arising out of S.L.P. (Civil) No. 22556 of 2003)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellant calls in question legality of the judgment rendered by  a Division Bench of the Rajasthan High Court at Jaipur, affirming the  view of the learned Single Judge that the pre-mature retirement of  appellant as directed by the respondents was in order.   

A bird’s eye view of the factual position would suffice.  

       Sadul Shahar Kray Vikray Sahakari Samiti (hereinafter referred to  as the ’employer’) is a society registered under the Rajasthan  Cooperative Societies Act, 1965 (in short the ’Act’). The appellant was  serving as its manager. On consideration of service records of the  appellant the employer concluded that there was continuous fall in his  work performance and as such it was in the public interest to pre- maturely retire him.  He had attained the age of 56 years and served  for more than 27 years. The Chief Executive officer issued an office  order dated 1.4.1988 compulsorily retiring him from service under the  provisions of Rule 244(2)(i) of the Rajasthan Service Rules, 1951 (in  short ’Service Rules’).  The appellant challenged the said order by way  of a revision petition before the Additional Registrar-II, Cooperative  Societies, Rajasthan Jaipur (in short ’Additional Registrar’). By order  dated 9.5.1996,  the revision was allowed on the ground that Rule  244(2) of the Service Rules was not applicable to the employer-society  and on the other hand his service conditions were governed by Rule 41  of the Rajasthan Cooperative Societies Rules, 1966 (in short the  ’Rules’).  Under the said Rule approval of the Registrar is a condition  precedent for pre-mature retirement.  Employees-society challenged the  decision of the Additional Registrar by way of revision before the  State Government under Section 128 of the Act.  The Secretary,  Cooperative Department, Government of Rajasthan, Jaipur (in short  ’Secretary’) found that the revision before the Additional Registrar  was not competent as the order was passed by the Administrator who was  not an officer subordinate to the Registrar. He was, therefore, of the  view that the Additional Registrar had no jurisdiction to hear the  revision in terms of Section 128 of the Act.  Accordingly, he set aside  the order of the Additional Registrar. The order was challenged by the

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appellant under Article 226 of the Constitution of India, 1950 (in  short the ’Constitution’) before the High Court.

       Before the learned Single Judge, who heard the matter it was  contended that the power of revision under Section 128 of the Act stood  exhausted by order of the Additional Registrar and as such the  Secretary could not have exercised the revisional power in respect of  the same order.  Learned Single Judge rejected the contention holding  that Additional Registrar had exercised the delegated power of the  Registrar and not of the State Government and, therefore, the revision  before the State Government was maintainable and the Secretary had  jurisdiction to deal with the matter. In any event, Additional  Registrar could not have entertained the revision. The judgment of  learned Single Judge was questioned by Letters Patent Appeal.  Stand of  the appellant before the Division Bench was that once the delegate  exercised the power of revision, it stands exhausted and such power  cannot be exercised again by original authority.  Reference was made to  certain decisions of this Court in this context.  The Division Bench of  the High Court was of the view that the factual position was entirely  different.  Under Section 128 the revisional power can be exercised by  two authorities i.e. Government and the Registrar. In the cases to  which reference was made by the appellant there was a single authority  who had delegated the power. It was further noted that under the Act  revisional power is vested with two authorities. The Registrar who was  the delegator of power to the Additional Registrar could not have  entertained the revision.  But there was no embargo on the State  Government to entertain the revision application. Further the Secretary  had clearly observed that the Additional Registrar had no power to  entertain the revision as the Administrator was not an officer  subordinate to him. Accordingly, LPA was dismissed.

       In support of the appeal Mr. Mahabir Singh, learned counsel  submitted that the High Court erred in holding that Section 128 of the  Act related to two authorities i.e. the State Government and the  Registrar.  In fact the two authorities are interchangeable. If one  authority has exercised the revisional power other authority logically  could not have exercised such power. In any event, second revision was  not maintainable.  Strong reliance was placed on Roop Chand v. State of  Punjab and Anr. (AIR 1963 SC 1503) for supporting the plea.  It was  further contended that the service rules had no application as the  employer had never decided to adopt the service rules.  Before the  Additional Registrar a plea was taken that Administrator had no power  to direct compulsory retirement as he was not the appointing authority.  This plea was given up stating that the Administrator having taken over  the management had authority to pass the order of pre-mature retirement  subject of course to fulfilment of requirements of Rule 41 of the  Rules, and not under Rule 244 of the Service Rules.

       Per contra, learned counsel for the respondents submitted that  the factual scenario as presented by the appellant is not correct.  In  fact, the employer society had decided to adopt the service rules long  before the order directing pre-mature retirement was passed.  Further  the State Government was competent to entertain the revision  application as the Registrar was one of the two authorities indicated  in Section 128 to exercise revisional power.  The impugned orders of  the learned Single Judge and Division Bench of the High Court did not  suffer from any infirmity to warrant any interference.   

It is an accepted position in law that to ’delegate’ to another  is not to denude yourself. As was observed by Wills, J. in Huth v.  Clarke (25 Q.B.D. 391, "In my opinion the word, in its general sense  and as generally used, does not imply, or point to, a giving up of  authority, but rather the conferring of authority upon someone else".   As observed by Lord Coleridge, C.J. in 25 Q.B.D. 304, the word  ’delegation’ implies that powers are committed to another person or

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body which are as a rule, always subject to resumption by the power  delegating. The person delegating does not denude himself.  (Per  Wharton’s Law Lexicon, 1976 Reprint Ed. at page 316).  Delegation  implies also the power to withdraw delegation. As indicated in  Wharton’s Law Lexicon, delegation is a sending away; a putting into  commission; the assignment of a debt to another; the entrusting another  with a general power to act for the good of those who depute him.  The  word ’delegate’ means little more than an agent.  An agent exercises no  power of his own but only the powers of his principal.  The observation  in Huth’s case (supra) was referred to in Roop Chand’s case (supra). In  general, a delegation of power does not imply parting with authority.  The delegating body will retain not only power to revoke the grant, but  also power to act concurrently on matters within the area of delegated  authority except in so far as it may already have become bound by an  act of its delegate. (See Battelley v. Finsbury Borough Council (1958  LGR 165).  

In Corpus Juris Secondum, Volume 26, ’delegate’ has been  described as follows:

"As a noun, a person sent and empowered to act  for another, one deputed to represent another in a  more popular but less accurate sense, a regularly  selected member of a regular party convention.

As a verb, in its general sense and as  generally used, the term does not imply, or point to,  a giving up of authority, but rather the conferring  authority upon someone else.

At common law, it is the transfer of authority  by one person to another, the act of making or  commissioning a delegate.

Expression ’delegation of authority of power’  is a term which like the word ’delegate’ does not  imply a parting with powers by the person who grants  the delegation, but points rather to the conferring  of an authority to do things which otherwise that  person would have to do himself."

In Collins English Dictionary the word ’delegate’ has been stated  to be a person who is chosen to vote or make decisions on behalf of a  group of other people.  If you delegate duties, responsibilities or  power to someone, you give them those duties, those responsibilities,  or that power so that they can act on your behalf. If you are delegated  to do something you are given the duty of acting on someone else’s  behalf by making decisions, voting, or doing some particular work.

In Black’s Law Dictionary, 6th Edition, the word ’delegate’ has  been stated to mean a person who is appointed, authorized, delegated or  commissioned to act in the stead of another.  Transfer of authority  from one to another.  A person to whom affairs are committed by  another.  ’Delegation’ according to said dictionary means,  instructing  another with a general power to act for the good of those who depute  him; transfer of authority by one person to another.

According to Venkataramaiya’s Law Lexicon, ’delegation’ as the  word generally used does not imply a parting with powers by the person  who grants the delegation, but points rather to a conferring of an  authority to do things which otherwise the person would have to do  himself.

As was observed by this Court in State of Orissa and Ors. v.  Commissioner of Land Records & Settlement, Cuttack and Ors. (1998 (7)

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SCC 162) and in OCL India Ltd. v. State of Orissa and Ors. (2003 (2)  SCC 101), if an authority delegates the power to act it shall be deemed  to be an act of the delegator.  In such a situation there is no scope  for revision of the order of the delegate by the delagator. In  Commissioner of Land Records & Settlement’s case (supra) it was noted  that the delegator (also described as the principal) cannot review an  order of the delegate.  It was, inter alia, observed by this Court as  follows:         "It may be argued that if the order of the  delegate is tantamount to the order of the principal,  then the principal can review such an order of the  delegate. This appears to be plausible at first blush  but is, in our opinion, not correct because of the  intervention of another fundamental principle  relating to "review" of orders. The important  principle that has to be kept in mind here is that a  review application is to be made only to the same  Judge or if he is not physically available, to his  successor.  The decision of the Privy Council in Maharajah  Moheshur Sing v. Bengal Govt. 3 WR 45 (PC)) to which  reference was made by learned Senior Counsel, Shri T.  L. Vishwanath Iyer, is very apt in this connection.  Adverting to the basic concept of review, it was  observed by the Privy Council: (p.47)  "It must be borne in mind that a review  is perfectly distinct from an appeal;  that is quite clear from all these  Regulations that the primary intention of  granting a review was a reconsideration  of the same subject by the same Judge, as  contradistinguished to an appeal which is  a hearing before another Tribunal."  Their Lordships added:  "We do not say that there might not be  cases in which a review might take place  before another and a different Judge;  because death or some other unexpected  and unavoidable cause might prevent the  Judge who made the decision from  reviewing it; but we do say that such  exceptions are allowable only ex  necessitate. We do say that in all  practicable cases the same Judge ought to  review; ......"  It is, therefore, clear that the same Judge who  disposes of a matter, if available, must "review" the  earlier order passed by him inasmuch as he is best  suited to remove any mistake or error apparent on the  face of his own order. Again, he alone will be able  to remember what was earlier argued before him or  what was not argued. In our opinion, the above  principle is equally applicable in respect of orders  of review passed by quasi-judicial authorities.  However, these principles about which there is no dispute have no  application to the facts of the present case.  It was in reality not  revision by a delegator.  The State Government had nowhere delegated  revisional power to the Additional Registrar. Rule 244 of the Service  rules which is noted above, is applicable to the appellant clearly  provides that an employee may be compulsorily retired after completion  of 25 years of service.   

Bare reading of the aforesaid provision makes the position clear  that the appointing authority has the absolute right to retire in  public interest any employee by giving him a previous notice in

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writing.  The compulsory retirement can be effected on the date on  which he completes 25 years of service or he attains 50 years of age,  whichever is earlier or, on any date thereafter.  As noted at the  threshold, the age and service period are applicable in this case.             It is to be noted that the learned Single Judge categorically  held that the Board of Director on 4.5.1977 adopted resolution making  service rules applicable in respect of employees of the society and a  notification dated 3.8.1980 was issued by the Registrar Cooperative  Societies, Jaipur by which the Civil Services (Classification, Control  and Appeal) Rules, 1958 (in short the ’CCA Rules’) were made applicable  to the employee also. Therefore service Rules were clearly applicable  to the appellant.

Coming to the basic issue as to whether the State Government  could have exercised revisional power, a few provisions need to be  noted:-

       Section 128 of the Act reads as follows:

"128. Power of the Government and Registrar to call  for proceeding of subordinate officers and to pass  orders thereon \026 (1) The State Government and the  Registrar may call for and examine the record of any  inquiry or the proceedings of any other matter, of  any officer subordinate to them, except those  referred to in section 125, for the purpose of  satisfying themselves as to the legality or propriety  of any decision or order passed, and as to the  regularity of the proceedings of such officer.  If in  any case, it appears to the State Government or the  Registrar, that any decision or order or proceeding  so called for should be modified, annulled or  reversed, the State Government or the Registrar, as  the case may be, may after giving persons affected  thereby an opportunity of being heard, pass such  order thereon as it or he thinks just:

Provided that every application to the Registrar or  the Government for the exercise of the powers under  this section all be preferred within ninety days from  the date on which the proceedings, decision or order  to which the application relates was communicated to  the applicant.

Provided further that the Registrar shall not  exercise the powers under this section in case in  which an appeal lies to him under this Act.

Explanation:-  For the purpose of this sub-section  the Assistant Registrar, Deputy Registrar and Joint  Registrar exercising all or any of the powers of the  Registrar under this Act shall be deemed to be  subordinate to the Registrar.

(2)     pending the hearing under sub-section (1), the  government or the Registrar may pass such  interlocutory order as it or he thinks fit to prevent  the ends of justice from being defeated."

       In addition, Sections 123, 124 and 125 are also relevant. Section  124 deals with "Appeals to other authorities". Chapter XIII deals with  "Appeal, Revision and Review". Section 123 deals with "Constitution of  and appeals to the Tribunal".  Sub-section (6) of Section 123 provides

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for appeal to the Tribunal against the decision of the Registrar under  certain provisions.  Section 124 reads as follows:

"124. Appeals to the other authorities: (1) An appeal  shall lie under this section against, \026

(a)     an order of the Registrar made under sub- section (2) of Section 8 refusing to register a  Co-operative Society; (b)     an order of the Registrar made under sub- section (4) of Section 13 refusing to register  an amendment of the bye-laws of a co-operative  society; (c)     an order of the Registrar made under sub- section (2) of Section 14; (d)     an order of the Registrar made under sub- section (1) of Section 17; (e)     a decision of the co-operative society other  than that of a Farming and Producers’ Society,  as classified under the rules, refusing to  admit any person as a member of the society or  expelling any member of the society; (f)     an order of the Registrar rescinding in whole  or in part any resolution under Section 32; (g)     a decision under sub-section (5) of Section 34; (h)     an order declaring an officer or member of a  committee as disqualified from being elected or  being an officer or a member of the committee  or of imposing a penalty on a servant of the  society under sub-section (5) of Section 30;   (i)    an order made by the Registrar made under  Section 73 apportioning the costs of an enquiry  held under Section 70 or an inspection made  under Section 71; (j)     an order of surcharge made by the Registrar  under Section 74; (k)     an order made by the Registrar under Section 78  directing the winding up of a co-operative  society; (l)     any order made by liquidator of a co-operative  society in exercise of the powers conferred on  him by Section 80, with respect to matters  specified in the rules; or  (m)     an order made by the Registrar under Section  118.

(2)     An appeal against any decision or order under  sub-section (1) shall be made within sixty days  from the date of the decision or order:- (a)     if the decision or order was made by the  Registrar, to the Government; or  (b)     if the decision or order was made by any  other person, or a co-operative society,  to the Registrar.

Explanation: - For the purpose of this sub-section,  Registrar shall not include any other person except  Additional Registrar exercising all or any of the  powers of the Registrar.

(3)     No appeal shall lie under this Section from any  decision or order made in appeal."

Sub-section (2) of Section 124 provides that if the decision or

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order is made by the Registrar, appeal lies to the Government and if  the decision or order is made by any other person, or a co-operative  society, the appeal lies to the Registrar. Therefore, under Chapter  XIII a clear distinction is made between the State Government and the  Registrar. The test is whether the two authorities with concurrent  revisional jurisdiction are equal in rank.  It is, therefore, not  correct as contended by learned counsel for the appellant that the two  authorities i.e. the State Government and the Registrar are  interchangeable.  The power of the Government and the Registrar in  terms of Section 128 excludes matters which are covered by Section 125  i.e. revision by the Tribunal.

In view of the aforesaid position, we find no merit in this  appeal which is accordingly dismissed without any order as to costs.