IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7141 of 2009 Manti Devi . Versus The State Of Bihar & Ors . ----------- 3. 29.07.2011 Heard learned counsel for the petitioner and the State. The petitioner is the wife of the deceased employee aggrieved by his order of compulsory retirement dated 29.6.2007. Learned counsel for the petitioner submits that the order was in teeth of the requirements under Rule 74(b)(ii) of the Bihar Service Code (hereinafter referred to as the „Code‟). Three months previous notice in writing or an amount equal to three months pay and allowance in lieu of such notice was not given. The order compulsorily retired him from 30.6.2007. The deceased had represented during his life time. Reliance is placed on a Division Bench judgment in 2006(3) PLJR 400 (Rana Abhai Singh Vs. The Hon‟ble High Court of Judicature at Patna & Ors.). The normal tenure of service was till 30.11.2008. The deceased shall be deemed to have continued in service till his superannuation and is entitled to all consequential benefits after setting aside the order of compulsory retirement. The order 2 was bad as it did not mention “public interest”. Counsel for the State submits that the husband of the petitioner was retired in public interest on health grounds as he was unable to discharge duties regularly and had lost his utility as explained in the counter affidavit. The impugned order was communicated to the deceased on the next day. No objection was raised by him till his demise one year and three months later. If the order was illegal, it was so from its inception. It did not acquire that nature after his demise. The order had serious consequences for loss of the job, a regular salary. The deceased had a normal service tenure till 30.11.2008. On 28.12.2007 the deceased himself acknowledged in writing his prolonged illness leading to his compulsory retirement. Had he been healthy he would have worked for 17 months more. A request was made to provide compassionate appointment to his son. No further discussion is required that the retirement was in public interest. Being fully conscious of the facts and satisfied that relief would not have been his he accepted the impugned order. It is only after his death that his wife has taken up issues requesting for 3 compassionate appointment of the elder son. The petitioner has herself annexed an order dated 28.5.2008 with regard to the service dues of the deceased which again states that the period of his absence in service was being regularized in view of his ill health. The impugned order does not expressly use the words “public interest” by incorporation. But the facts of the ill health of the deceased and consequent inability to discharge regular duties leading to the order for retirement is not in dispute. The alleged flaw does not affect the validity of the order. In (1976) 4 SCC 709 (Mayongbam Radhamohan Singh v. Chief Commr.) it has been held at Paragraph-15 as follows:- “15. The affidavit evidence is that the order of compulsory retirement was made in public interest. The absence of recital in the order of compulsory retirement that it is made in public interest is not fatal as long as power to make compulsory retirement in public interest is there and the power in fact is shown in the facts and circumstances of the case to have been exercised in public interest.” Similar view has been taken in (1995) Supp(3) SCC 202 (Registrar, High Court of M.P. v. Rajabai Gorkar) it has been held at Paragraph-1 and 3 as follows:- 4 “1.…….The order by which she was compulsorily retired did not on the face of it say that the action was taken in public interest. However, in the suit instituted by the respondent- employee, a written statement was entered wherein it was pleaded that the action was taken in public interest…………..” “3.We are of the opinion that even though on the face of the order it was not stated that the action was initiated in public interest and even though the particulars in that behalf were not pleaded in the written statement, it was open to the State as well as the High Court to place material before the Court at the trial in support of its contention that the action was taken in public interest. Of course, that is not to say that care need not be taken while drafting the order of compulsory retirement or drawing up the defence, if the action is challenged. But on that account alone the order will not be quashed if it can otherwise be shown that the action was taken in public interest………..” The impugned order does not expressly comply the provisions of Rule 74(b)(ii) of the Bihar Service Code as it does not give the three months notice or pay in lieu thereof. That by itself shall not be sufficient for the Court in the facts of the case to hold that the order was bad. In the given facts of a case the Court may decline exercise of discretionary jurisdiction even if the order was bad in law. In (2003) 6 SCC 545 (Chandra Singh v. 5 State of Rajasthan): it has been held at Paragraph 43 as follows:- “43. Issuance of a writ of certiorari is a discretionary remedy. The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Article 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done……..” The right to question the impugned order for non compliance of Rule 74(b)(ii) was a statutory right available to the deceased. Had the deceased questioned it in his life time he may have been entitled to relief. Unlike a fundamental right which cannot be waived a statutory right can be waived by the person in whom the statute confers that right. The principle of waiver has been explained in (2008) 12 SCC 401 (Babulal Badriprasad Varma v. Surat Municipal Corporation) at Paragraphs 43 and 44 as follows:- “43. In Halsbury's Laws of England, Vol. 16(2), 4th Edn., Para 907, it is stated: “The expression „waiver‟ may, in law, bear different meanings. The primary 6 meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right… Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only… Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it.” 44. As early as in 1957, the concept of waiver was articulated in a case involving the late assertion of a claim regarding improper constitution of a Tribunal in Manak Lal v. Dr. Prem Chand Singhvi in the following terms: “8. … It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R. has observed in Vyvyan v. Vyvyan „Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim‟.” 7 The Court unhesitatingly arrives at the conclusion that any irregularity in the order dated 29.6.2007 was not only expressly but also impliedly by conduct waived by the deceased when he did not question it during his life time. Reliance on the case of Rana Abhai Singh (surpa) with regard to non compliance of Rule 74(b)(ii), in the facts of the present case is not of any avail to the petitioner. The proposition discussed in Paragraphs 32 to 37 of the judgment is unexceptionable. A judgment cannot be quoted as a precedent de void of the fundamental facts by merely referring to the proposition of law decided in that judgment. The issue of a statutory waiver discussed presently was not the factual background in which the judgment of Rana Abhai Singh (supra) came to be delivered. That by itself is sufficient to distinguish the case of the petitioner. The caution in this regard can be noticed in, (2004) 8 SCC 579 (Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani,) at Paragraphs 9 and 10 as follows:- “9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. 8 These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments……” 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.” The Court therefore finds no merit in this application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)