Jafar v. State of U. P — 1990 DIGILAW 918 (ALL)

JUDGMENT M.L. Bhat, J. - The facts of this petition, in so lar as they are relevant for the decision of this writ petition can be put in a brief compass. 2. The petitioner has been retired on 31-3-1984 as Regional Manager in U. P. State Road Transport Corporation. In June 1985, some alleged adverse entry wag conveyed to him which pertained the year 1980-81. Before the communication of this entry, by letter dated 22-2-1985 the petitioner's pension and gratuity were stopped. This action is said to have been taken by the respondents purportedly under Rule 470 (b) of the Civil Service Regulations. The petitioner had filed a writ petition and after filing of that writ petition, the petitioner was paid gratuity. In the meantime the petitioner received a show cause notice under Rule 470 (b) of the Civil Service Regulations. Therefore, the High Court did not interfere in the matter. The writ petition was disposed of on 11-1-1988 with a direction to the State Government to dispose of the proceedings pending in pursuance of the show cause notice issued in July, 1986 within a period of three months from communication of the order of the High Court. 3. The contents of the show cause notice would reveal that the action against the petitioner was proposed Under Rule 470 (b) of the Civil Service Regulations for the following reasons :- (i) That there was a special adverse entry conveyed to him vide letter dated 23-9-1975. (ii) That there was an adverse entry recorded against him for the year 1981-82 (it should be 1980-81, as reflected by the pleadings of tho parties, as there was no entry against the petitioner for the year 1981-82). (iii) That the petitioner was given warnings on 24-10-1950, 28-11-1950 7-6-1961 and June, 1952. (iv) That during his tenure at Gorakhpur from 17-11-1979 to 10-10-1980 the petitioner had committed some irregularities, which were found prima facie true on enquiry, which are enumerated as under: (a) That the petitioner had appointed 172 conductors in excess of the sanctioned posts. (b) That from the Employment Exchange a list of 225 persons was received for appointment to the posts of conductors but the petitioner had appointed only one person from the said list. (c) The prescribed period of training for conductors was reduced by the petitioner from 15 days to 7 days. 4. (b) That from the Employment Exchange a list of 225 persons was received for appointment to the posts of conductors but the petitioner had appointed only one person from the said list. (c) The prescribed period of training for conductors was reduced by the petitioner from 15 days to 7 days. 4. The petitioner was, therefore, asked to show cause why his pension should not be reduced by ?. Rule 470 (b) of the Civil Service Regulations permits the authorities to make reduction in pension provided the conditions appearing in the said rule are in existence. 5. The petitioner seems to have filed reply to the show cause notice on 19-9-1987 and on 8-4-1988 the impugned order came to be passed whereby the petitioner's pension was reduced by ? and ha was allowed to draw only ?th of the amount as his pension. The allegations contained in the show cause notice were held to be correct and it was stated in the impugned order that there was no substance in the explanation given by the petitioner. On the basis of the aforesaid facts the petitioner has challenged the impugned order, inter alia, on the following grounds :- (i) That the petitioner after joining the service under the State was promoted to the post of Junior Station Incharge in 1956 and Senior Station Incharge in 1960. Therefore, any warning allegedly given to him prior to that will have no effect as they have ceased to be operative. (ii) The petitioner was selected by the Public Service Commission in 1961 and was posted as Traffic Superintendent in 1962. Thereafter he was promoted as Assistant Regional Mauager in 1973 and Regional Manager in 1973 and in Regional Manager in 1979 and was declared permanent as Assistant grade I and J. S. R. (iii) The petitioner had earned his regular increments right upto the post of Regional Manager. He was allowed to cross-efficiency bar whenever he was due to cross the same. (iv) The special portion of adverse entry pertaining to the year 1975-76 was expunged by the Government. Therefore, the same could not be used against the petitioner. The petitioner's representation against the remaining portion of the adverse entry pertaining to the year 1975-76 has not been decided as yet by the Government. (iv) The special portion of adverse entry pertaining to the year 1975-76 was expunged by the Government. Therefore, the same could not be used against the petitioner. The petitioner's representation against the remaining portion of the adverse entry pertaining to the year 1975-76 has not been decided as yet by the Government. (v) The adverse entry pertaining to the year 1980-81 was communicated to him after four years and the petitioner's writ petition No. 15987 of 1987 against the said adverse entry was hied in the High Court which is pending consideration. (vi) The petitioner was not permitted to see the relevant record and he was forced to file the reply without affording reasonable opportunity of examining the record. (vii) The complaint received from Smt. Gaura Devi was not enquired in accordance with law, therefore, the allegations levelled therein cannot be used against the petitioner. (viii) Any material collected against the petitioner without affording any opportunity of hearing cannot be used against the petitioner. (ix) The petitioner has also challenged the competence of Mr. A. K. Das to record adverse entry against him. 6. The petitioner, therefore, prays for a writ of certiorari quashing the order dated 8-4-1988, Annexure-15 to the writ petition and prays for a mandamus to pay full pension to the petitioner. 7. To this petition also reply affidavit is filed on behalf of respondent No. 2 alone. The respondent has supported the action taken by the State Government on the ground that the allegations levelled against the petitioner in the show cause notice and repeated in the impugned order dated 8-4-1988 are correct and on the basis of those allegations the State Government was justified to take the action of reducing pension of the petitioner under Rule 470 (b) of the Civil Service Regulations. However, it is stated that the petitioner had been promoted from time to time and he was allowed to cross efficiency bar on 13-5-1974 and 22-10-1982 with effect from 1-5-1979. 8. I have heard learned counsel for the parties at some length. After arguing the case the learned standing counsel submitted that the matter be decided on the material on record. 9. 8. I have heard learned counsel for the parties at some length. After arguing the case the learned standing counsel submitted that the matter be decided on the material on record. 9. So far as the adverse entry pertaining to the year 1980-81 is concerned, that has been declared non-est and is directed not to be used against the petitioner for any purpose whatsoever by the judgment of this Court in writ petition No. 15987 of 1988. Therefore the ground for taking action on the adverse entry for the year 1980-81 has disappeared by the judgment of this Court in the aforesaid writ petition. Hence it is not necessary to discuss the validity of the adverse entry pertaining to the year 1980-81 in this judgment. 10. The basis of the action are warnings alleged to have been administered to the petitioner at different times. These pertain to the years 1950, 1961 and 1382. So far as these warnings are concerned, they cannot be made basis for taking any action against the petitioner because they are washed away by the respondents by their own action. 11. The petitioner was first promoted in 1956 and after his promotion any warning given in the year 1950 would automatically vanish and would not be of any significance so as to affect the right of the petitioner after his promotion. The same is the case with the alleged warnings of 1961 and 1982. After the alleged warnings the petitioner was promoted and allowed to cross the efficiency bar. It is the admitted case of the respondents also that the petitioner crossed the efficiency bar, when he was due to cross the same and he was given due promotion. So, on promotion with the clearance of the efficiency bar anything adverse prior to that would ceased to be operative. The respondents are not, therefore, entitled to rely on the said warnings. 12. Insofar as the adverse entry conveyed to the petitioner in September, 1975 is concerned, that also has lost its value. The petitioner was promoted as Regional Manager in 1979 i.e., four years after the communication of that special adverse entry. After his promotion the adverse entry recorded four years prior to his promotion cannot be used in 1986 or 1988 to the detriment of the petitioner. That adverse entry too has no value after the petitioner was promoted. The petitioner was promoted as Regional Manager in 1979 i.e., four years after the communication of that special adverse entry. After his promotion the adverse entry recorded four years prior to his promotion cannot be used in 1986 or 1988 to the detriment of the petitioner. That adverse entry too has no value after the petitioner was promoted. That he had earned promotion as also crossed the efficiency bar would mean that the object of communication of adverse entry was achieved. The object was that the petitioner should improve and come upto the mark. By granting him promotion the authorities seem to have found him upto the mark and suitable for the post of Regional Manager. Therefore, he seems to have made up the deficiency and there after earned promotions to higher grades. As a result of his promotion, the adverse entry of 1975 cannot be used against the petitioner after his retirement. 13. Moreover, the object of communication of adverse entry was only to apprise the petitioner of his short-comings and he was asked to improve. The adverse entry was not recorded to punish the petitioner. The object for which the adverse entry is to be conveyed to the officer concerned is to afford him an opportunity to improve his performance, conduct or character as the case may be and the adverse entry should not be understood in terms of punishment. It is only an advice to the officer concerned so that he can improve his service career. This is based on the case of State of Haryana v. P.C. Wadhwa, reported in (1987) 2 SCC 602 . 14. It is now well settled that state adverse entries cannot be taken into consideration to the detriment of an employee when after recording of those entries, the employee has been promoted to a higher post and also crossed the efficiency bar. Therefore, the ground for taking action. Which is based on the alleged warnings said to have been administered to the petitioner in 1950 and 1961 is bad. Any action proposed on the basis of adverse entry of 1974-75 is also bad for the reasons given herein-above. 15. Warning administered to the petitioner in 1982 is set up as a ground for taking action but it is not revealed on what basis that warning was administered to the petitioner. Any action proposed on the basis of adverse entry of 1974-75 is also bad for the reasons given herein-above. 15. Warning administered to the petitioner in 1982 is set up as a ground for taking action but it is not revealed on what basis that warning was administered to the petitioner. As isolated warning of 1982 without knowing the basis of the said warning cannot be taken into consideration for punishing the petitioner under Rule 470 (b) of the Civil Service Regulations after a lapse of considerable time. It in the case of the respondent that the petitioner was not the appointing authority of the conductors. Therefore, the accusation against the petitioner that he had made appointments of conductors in excess of the posts sanctioned is imaginary. It is the case of the respondents also that the appointing authority of the conductors was someone else and not the petitioner. In the same manner he appointed only one conductor out of the list containing 235 candidates received from the employment exchange is also a flimsy ground for the simple reason that the petitioner was not the appointing authority of the conductors. It was some one else who made the appointment of conductors and the petitioner cannot be held vicariously responsible for the acts of others. Therefore the allegations alleged against the petitioner on account of the appointments of conductors is unsupportable and is based on no evidence. Therefore, this allegation cannot be made a ground for punishing him under Rule 470 (b) of the Civil Service Regulations. It is stated in the impugned order as also in the show cause notice that there were complaints received against the petitioner which on enquiry were found prima facie to be correct. The action of reduction of pension is grounded on this allegation also. The complaint is said to have been received from one Smt. Gaura Devi, who happened to be M. L. A. then, against the petitioner and it is contended that on some enquiry the complaint was found prima facie proved. It is not the case of the respondents that a regular enquiry was initiated against the petitioner and he was given an opportunity of being heard, thereafter prima facie opinion was formed about the guilt of the petitioner. It is not the case of the respondents that a regular enquiry was initiated against the petitioner and he was given an opportunity of being heard, thereafter prima facie opinion was formed about the guilt of the petitioner. The enquiry is said to be held by some Security Officer of the respondent at the back of the petitioner and his report prepared at the back of the petitioner has been used against the petitioner to reduce his pension by ?th amount. 16. The procedure adopted by the respondents in reducing the pension of the petitioner by ?th amount on the ground of complaints having been found true on enquiry at the back of the petitioner appears to be illegal. If there was an allegation against the petitioner, he could not be punished unless that allegation was proved against him in a regular enquiry in which the petitioner was also required to be associated and given an opportunity of being heard. On the basis of some preliminary enquiry report prepared at the back of the petitioner, the respondents cannot be allowed to take a punitive action against the petitioner and reduce the amount of his pension by ?th amount. This is a flagrant violation of the principles of natural justice. If the allegation of misconduct was levelled against the petitioner, before it could be relied upon it was necessary that the petitioner was given an opportunity of being heard. The misconduct could not be presumed and then used against the petitioner if the petitioner was not heard in the matter. The principles of natural justice are now part of our constitutional system and whenever action is proposed to be taken which will have adverse effect on the interest of a citizen, that action must conform to the principles of natural justice. The respondents are authorised to take action under Rule 470 (b) of the Civil Services Regulations in suitable cases, but such an action must be based on material which is relevant to the object sought to be achieved under the said rule. The action cannot be taken on irrelevant material or on the material which is violative of the principles of natural justice. In this case the principles of natural justice have been flagrantly violated by the respondents. The action cannot be taken on irrelevant material or on the material which is violative of the principles of natural justice. In this case the principles of natural justice have been flagrantly violated by the respondents. They have not afforded any opportunity to the petitioner of being heard in the enquiry which is alleged to have taken place at the back of the petitioner in respect of the complaint received from a member of the public. 17. We have a guarantee under the Constitution of adopting a fair procedure in judicial and quasi-judicial matters or in administrative dealings by the State. The fairness is guaranteed by Article 14 of the Constitution which enjoins an authority to observe rules of natural justice even in administrative matters while passing its orders, if the said orders are likely to have adverse affect on the right of a citizen against whom such order is proposed to be passed. Deprivation of ?th amount of pension from the petitioner's pension which he entitled to get has certainly visited him with civil consequences inasmuch as he is to loss ?th amount from his pension which he is entitled to get as a result of his services rendered to the State after a period of years upto the date of his superannuation. The pension as held in D. S. Nakara case reported in AIR 1983 SC 130 : 1983 UPLBEC 378 is not a boundary, largess or concession granted by the State to its retired employees. It is an amount entitled to be paid to the employees after their retirement in lieu of their past services and they have a right to draw pension after retirement. Therefore, any deduction from the amount of pension would amount to depriving the petitioner of a valuable right, which has accrued to him under the service rules governing the conditions of his service. Reduction of pension, therefore cannot be ordered under Rule 470 (b) of the Civil Service Regulations on flimsy, imaginary or unfounded grounds. The complaint said to have been received against the petitioner was not enquired into in accordance with the principles of natural justice or in accordance with the procedure of law. Some secret enquiry is got conducted and that enquiry report is used against the petitioner to his detriment and his pension is reduced by ?th amount. The complaint said to have been received against the petitioner was not enquired into in accordance with the principles of natural justice or in accordance with the procedure of law. Some secret enquiry is got conducted and that enquiry report is used against the petitioner to his detriment and his pension is reduced by ?th amount. The action of reduction of pension on this ground is therefore, illegal and unsustainable because anything found against the petitioner at his back in the secret enquiry cannot be used against him as it would be violative of the principles of natural justice. 18. The authorities clothed with the power to take action are enjoined by the Constitution to take action in accordance with the procedure established by law and in accordance with the principles of natural justice. No authority can arrogate to itself a power which is de hors of the constitutional provision. If an action is taken against the petitioner on a secret enquiry into a complaint which enquiry was conducted at bis back, the said action will be struck down because it was taken in violation of the principles of natural justice, which is one of the mandates enshrined under Article 14 of the Constitution. These cast an obligation on the authorities to act fairly and in accordance with the procedure established by law Therefore, no authority of the State is permitted to pass orders in violation of the principles of natural justice Prof. Wade in his Administrative Law V Edition in Chapter 15 says that it is fundamental to fair procedure that both sides should be heard. Audi alteram partem, hear the other side. This is the more for reaching of the principles of natural justice, since it can embrace almost every question of fair procedure, or due process, and its implications can be worked out in great detail. It is also broad enough to include the rule against bias, since a fair hearing must be an unbiased hearing but in difference to the traditional dichotomy, that rule has already been treated separately. 19. It is also broad enough to include the rule against bias, since a fair hearing must be an unbiased hearing but in difference to the traditional dichotomy, that rule has already been treated separately. 19. The author has, among other cases, referred to a case in which the University of Cambridge had deprived scholar of his degrees on account of his misconduct in insulting the Vice Chancellor's Court; but he was reinstated on s mandamus from the Court of the King's Bench, on the ground that deprivation was unjustifiable and, that, in any case, he should have received notice so that he could make bis defence, as required by the laws of God and man. This is held by the author as one of the Dice examples of the old conception of natural justice as divine and eternal law. Id the instant case the respondents have not stated that there was any enquiry against the petitioner in which he was associated in respect of the alleged complaints, which were received against him during his tenure at Gorakhpur. Therefore, anything said by any person at his back with regard to those complaints will not effect any of the rights of the petitioner, As already stated, such an action is violative of the principles of natural justice and opposed to the Constitution. Therefore, the respondents cannot rely on the secret enquiry in order to take action against the petitioner under Rule 470 (b) of the Civil Service Regulations. 20. As a result of the aforesaid discussion the writ petition succeeds and the impugned order dated 8-4-1988 contained in Annexure-13 to the writ petition based on show cause notice dated 19-9-1987, is liable to be struck down as unconstitutional, illegal and bad in law. 21. Accordingly this writ petition is allowed and the impugned order, contained in Annexure-15 to the writ petition, dated 8-4-1988 is hereby quashed and the respondents are directed to pay to the petitioner full pension as admissible under the rules and not to make any deduction from the amount of pension payable to the petitioner with effect from the date of his retirement and continue to pay him pension without making any deduction therefrom. 22. In the peculiar circumstances of the case the parties are directed to bear their own costs.