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1988 DIGILAW 253 (ALL)

Ali Bux Khan v. State of U. P

1988-03-11

K.P.SINGH

body1988
JUDGMENT K.P. Singh, J. - By means of this writ petition the petitioner has prayed for quashing the order dated 3.2.1977 contained in Annexure 'IX' and the order dated 18.2.1977 contained in Annexure XII' attached with the writ petition. Through Annexure 'IX' the petitioner has been compulsorily retired in public interest. The Tribunal through its impugned order dated 18.2.1982 has rejected the petitioner's reference and the order of the Tribunal is Annexure 'XII'. 2. Aggrieved by the orders contained in Annexures 'IX' and 'XII' the petitioner has approached this Court under Article 226 of the Constitution. 3. The main grievance of the petitioner before me is that he has been compulsorily retired during the pendency of the departmental proceedings against him. The representations with regard to the adverse entries against the petitioner were not decided and the order contained in Annexure 'IX' is by way of punishment, therefore, it is bad in law and should be quashed. It has also been emphasised that the Tribunal has not decided the important questions and has wrongly observed that it was not demonstrated that any representation to the Department was made and pending before any authority. In this connection it has been emphasised that the burden was on the Department to dispel the contentions that the petitioner's representations had not been decided by the authority concerned and that the impugned order contained in Annexure 'IX' was by way of punishment. Relevant allegations in paragraphs 12 to 17 of the writ petition have been made. Annexure 'SA - I' and paragraph 3 of the supplementary affidavit also emphasis that the representation dated 18.9.75 against the adverse entry for the year 1974 - 75 was sent to the Superintending Engineer, Irrigation Construction Circle, Varanasi and the same had not been disposed of. 4. No counter affidavit has been filed in the writ petition. The learned standing counsel could not refute the contentions raised on behalf of the petitioner. Sufficient time had been granted to the standing counsel for filing counter - affidavit. It did not think proper to grant any more time to the standing counsel for the purposes of filing counter affidavit. Therefore, proceeded to hear the writ petition on merits. 5. The learned standing counsel could not refute the contentions raised on behalf of the petitioner. Sufficient time had been granted to the standing counsel for filing counter - affidavit. It did not think proper to grant any more time to the standing counsel for the purposes of filing counter affidavit. Therefore, proceeded to hear the writ petition on merits. 5. In Purshottam Swarup Johari v. State of U.P. and others, 1976 Lab IC 61 a learned Single Judge of this Court has indicated that: "For the validity of an order of compulsory retirement mere absence of an stigma or indication of being by way of punishment is not sufficient. When such an order is challenged circumstances leading to it must be investigated to determine its true nature." 6. To the above effect a Division Bench of this Court in G.S. Sial v. Union of India and another, 1977 Lab IC 378, has also indicated that: "The form of the order of compulsory retirement is not decisive or conclusive; it is open to the Court to determine the substance and true nature of the order." The aforesaid Division Bench has also made the following observation in paragraph 15 of the judgment: "....... In these circumstances, it is difficult to comprehend that the facts and charges which formed the basis of the departmental proceedings were not present on the service record of the petitioner. Since the enquiry into those charges was pending at the time of the issue of the impugned order and that order was passed on an over all assessment of the petitioner's record of service, it is inherent that the allegations made against the petitioner, must have been taken into account. In the absence of any express averment to the contrary, we are of the opinion that in the background of the circumstances of this case, the impugned order is based on the .allegations of misconduct against the petitioner, and since Article 311 (2) of the Constitution was not complied with the impugned order is rendered void and liable to be quashed." 7. In the Manager, Government Branch Press and another v. D.B. Belliappa, AIR 1979 SC 429 , their Lordships of the Supreme Court have indicated as below : "....Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed lo the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action." 8. In the present case relevant allegations have been made in the writ petition and the supplementary - affidavit to characterise the order contained in Annexure 'IX' as had in law being by way of punishment and without affording any opportunity to the petitioner to explain the situation. No counter - affidavit has been filed in this connection, therefore, I have no option but to accept the allegations made in the writ petition. To my mind in view of the decisions quoted above the impugned order contained in Annexure 'IX' is bad in law and deserves to be quashed. It appear to have been passed during the pendency of the representation made by the petitioner against the adverse entry relating to the year 1974 - 75. Since the petitioner had got no opportunity to explain the situation before the impugned order contained in Annexure 'IX1 was passed, I think that the aforesaid order deserves to be quashed. 9. The Tribunal in its order dated 18.2.1982 has made the following observation in the paragraph : "Is Sambandh Me Koi Sandeh Nahin Hai Ki Baad Ki Varshon Ki Pravishtiyon Ka Mahatwa Hai Parantu Yachi Ke Mamley Me To Nirantan 1951 - 52 Se Lekar Sewa Ke Antim Varsh Tak Kewal Kuchh Hi Varshon Ko Chhor Kar Pratikul Pravishtiyan Anek Adhikari Yon Dwara Di Gayee Pratit Hoti Hain Aur Bad Ke Varsh Ki Pravishti Bhi Pratikul Thi Aur Inke Kya Jo Koi Pratyavedan Vibhag Ko Pr Apt Huwa Iska Bhi Koi Ashpasht Praman Uplabdh Nahin Kiya Gaya Hai." The Tribunal has also in paragraph 5 of its judgment indicated that it is not clear whether entries relating to the years 1966 - 67, 1970 - 71 and 1975 - 76 were communicated to the petitioner or not. It appears that while passing the order contained in Annexure IX against the petitioner the un - communicated entries were also taken into account. It appears that while passing the order contained in Annexure IX against the petitioner the un - communicated entries were also taken into account. The Tribunal has patently erred in rejecting the reference of the petitioner and taking into account the entries from the year 1951 - 52 to the time the order contained in Annexure 'IX' was passed. I think that the Tribunal has failed to consider the import of the observations made by their Lordships of the Supreme Court in Gurdial Singh Fijji v. State of Punjab and others, AIR 1979 SC 1622 , which runs as below vide paragraph 17 of the reported ruling : "The principle is well - settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified." 10. In Baldev Raj Chadha v. Union of India and others, 1980 Lab IC 1184, their Lordships of the Supreme Court have observed as below vide para, 8 : "... When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the Court may be satisfied that the order is not bad for want of any material whatever which to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of 'public interest justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well known and we are confined to an examination of the material merely to see whether a rational mind may be conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest." 11. The limitations on judicial power in this area are well known and we are confined to an examination of the material merely to see whether a rational mind may be conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest." 11. I think that the Tribunal has failed to consider the claim of the petitioner and has placed burden on wrong shoulder in the facts and circumstances giving rise to the present writ petition. It was incumbent upon the authority concerned to place the materials before the Tribunal to dispel the contentions raised on behalf of the petitioner that the order contained in Annexure 'IX' was by way of punishment. Since the Tribunal has placed burden on the petitioner in the facts and circumstances of the present days think that its judgment is bad in law and deserves to be quashed. Moreover, before this Court also the opposite parties have failed to file counter affidavit and meet the allegations made in the writ petition as well as supplementary affidavit filled in support of the writ petition. I think that the contentions raised on behalf of the petitioner have force. Fundamental Rule 56 (2) reads as below : "In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c) the appointment authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration: (a) .................................................. (b) any entry against which a representation is pending provided that the representation is also taken into consideration along with the entry." 12. In the present case the representation of the petitioner regarding to the entry of 1974 - 75 had not been disposed of when the order contained in Annexure 'IX' was passed, therefore, the order appears to have been passed in violation of Fundamental Rule 56 and is, as such, invalid. 13. Since the impugned order contained in Annexure 'IX' has been passed for more than 10 years ago and the impugned order of the Tribunal also suffers from patent error of law, I think that the ends of justice demand that the impugned order contained in Annexure 'IX' and Annexure 'XII' should be quashed. 13. Since the impugned order contained in Annexure 'IX' has been passed for more than 10 years ago and the impugned order of the Tribunal also suffers from patent error of law, I think that the ends of justice demand that the impugned order contained in Annexure 'IX' and Annexure 'XII' should be quashed. As the opposite parties have not filed any counter affidavit in this writ petition, the petitioner is entitled to relief claimed at serial Nos. (a) and (b) of the prayer contained in the writ petition. 14. For the foregoing discussions the writ petition succeeds and the impugned order dated 3.2.1977 contained in Annexure 'IX' and the order dated 18.2.1982 contained in Annexure 'XII' are hereby quashed and the opposite parties Nos. 1 and 2 in the writ petition are directed to consider the petitioner as having continued in service till the time of superannuation despite the order of compulsory retirement. The petitioner should be granted all benefits and increments due to him admissible in law. Parties are directed to bear their own costs.