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1991 DIGILAW 453 (ALL)

Mohan Lal Garg v. State of U. P.

1991-03-18

D.K.TRIVEDI

body1991
JUDGMENT D.K. Trivedi, J. - By means of this writ petition, the petitioner has challenged the order dated 23390, contained in Annexure No. 12 by which the petitioner has been retired from service compulsorily under fundamental Rule 56(c) contained in Financial Hand Book Vol. II Part 2 to 4. 2. The brief facts of the case are that the petitioner was originally appointed to the temporary post of Computer in Public Works Department with effect from 1631958. The petitioner was confirmed on the post of Computer with effect from 141963. The petitioner, thereafter, appeared in qualifying examination for promotion to the post of Assistant Engineer and passed the said examination in 1970. The petitioner was thereafter, promoted to the post of Assistant Engineer on Adhoc basis in August, 1972. An adverse entry during the period of 1474 to 29774 was communicated to the petitioner on 12276. The said entry is contained in Annexure No. 2. The petitioner on receipt of the said entry filed his representation to the opposite party No. 2. It may be pointed out that from the perusal of Annexure No. 2; it appears that the adverse entry was given on the basis of some censure order dated 20375. The petitioner denied the fact of receipt of censure order dated 20375 as mentioned in the entry. The petitioner, thereafter, sent several reminders for disposal of the representation which was moved by him in 1976 but the said representation has not been decided and it is still pending. The petitioner further pointed out that again on 6685 another entry was communicated to him for the same period of 1474 to 29774. The petitioner again gave a representation against the said entry and the same is also pending and has yet not been decided by the opposite parties. The petitioner also filed a claim petition against that entry and the Tribunal by an interim order dated 25189 ordered that the adverse entry will not be taken into consideration for the purpose of promotion. In respect of some Departmental enquiry, the AdministrativeTribunal 2, U.P., Lucknow served a charge sheet upon the petitioner on 281281. The petitioner filed his written statement on 14383 denying the charges but the said enquiry is also pending. In respect of some Departmental enquiry, the AdministrativeTribunal 2, U.P., Lucknow served a charge sheet upon the petitioner on 281281. The petitioner filed his written statement on 14383 denying the charges but the said enquiry is also pending. It may be mentioned here that in the meantime the petitioner filed Writ Petition No. 401 of 1988 in this Court and this Court by order dated 22288 allowed the petition with the direction that the enquiry be concluded within six months but even then, the said enquiry is still pending and has yet not been concluded. During the disciplinary proceedings, the petitioner was suspended by order dated 10283. The petitioner filed a Writ Petition No. 1101 of 1983 which was disposed of by order dated 22889 with the direction that if no charge sheet was served upon the petitioner, then, the impugned order of suspension shall stand revoked. It is not disputed that the suspension order was revoked because no charge sheet was submitted by the opposite parties in this disciplinary proceeding in spite of lapse of a considerable period of time. Apart from this, it is also not disputed that the petitioner was approved for promotion to the post of Assistant Engineer by order dated 261180 which was passed on the basis of merit. The petitioner was also allowed to cross Efficiency Bar with effect from 181978 by order dated 25882. 3. On the basis of the above mentioned facts, Sri J.N. Mathur, Advocate appearing on behalf of the petitioner contended that the impugned order of compulsory retirement from service was passed in violation of the provisions of Article 311 of Constitution of India in as much as the petitioner was compulsorily retired from service during the pendency of the departmental enquiry as well as representation moved by the petitioner in 1976 and thereafter. The petitioner's counsel further contended that the decision on the said representations and enquiry proceedings are kept pending by the authorities concerned with mala fide intention in order to compulsorily retire the petitioner from service. 4. The petitioner has also questioned the validity of the impugned order of compulsory retirement on the ground that it was punitive in nature and was passed in utter disregard of the provisions of Article 311 Constitution of India. 4. The petitioner has also questioned the validity of the impugned order of compulsory retirement on the ground that it was punitive in nature and was passed in utter disregard of the provisions of Article 311 Constitution of India. The learned counsel for the petitioner further pointed out that in view of the law laid down by the Supreme Court as well as this Court that an adverse entry would stand whipped out on the crossing of the efficiency bar and, therefore, the order of compulsory retirement which was passed on the basis of the adverse entry for the year 197475 loses its value. 5. It has been laid down by the Supreme Court in case Baidya Nath Mahapatra v. State of Orissa reported in 1989(4) SCC, page 664 and in case Brij Mohan Singh Chopra v. State of Punjab reported in 1987(2) SCC, page 188 that it is not permissible to prematurely retire a Government servant on the basis of the adverse entry, representations against which were pending. This Court also in a case G.S. Syal v. Union of India and others, reported in 1977(3) ALR page 153, took a view that the order of compulsory retirement passed during the pendency of the disciplinary proceedings is bad and liable to be struck down. It is also settled view that the adverse entry made prior to the crossing of the efficiency bar could not be taken into consideration subsequent to the crossing of the efficiency bar. See for example AIR, 1977 SC, page 2086 and AIR 1980 SC, page 269. 6. In the instant case, it is not disputed on behalf of the opposite parties that the petitioner made representations against the adverse entry and the said representations are still pending. It may be pointed out here that the petitioner made first representation in 1976 but the same is also pending and has not been decided by the authorities concerned. It is also not disputed that the adverse entry is in respect of year 197475 and, thereafter, the petitioner was promoted and confirmed to the post of Assistant Engineer and also allowed to cross efficiency bar w.e.f. 1878 by order dated 25882. It is also not disputed that the adverse entry is in respect of year 197475 and, thereafter, the petitioner was promoted and confirmed to the post of Assistant Engineer and also allowed to cross efficiency bar w.e.f. 1878 by order dated 25882. It is, therefore, clear that the adverse entry on which basis the order of compulsory retirement dated 23390 contained in Annexure No. 12 was passed could not have been taken into account because the representations made by the petitioner were pending. It is also not disputed that after exclusion of the said entry, there is nothing adverse against the petitioner. Apart from this, an enquiry was also initiated against the petitioner in 1981 but the same is also kept pending and has not been concluded till the passing of the impugned order. In fact, the said enquiry was not completed in spite of the clear direction of this Court to the effect that the enquiry be completed within 6 months. Another enquiry which was also contemplated has not been concluded and in fact, no charge sheet has been given to the petitioner in spite of the fact that the petitioner filed a Writ Petition and got the suspension order revoked on this ground. The above mentioned facts clearly prove that the opposite parties passed an order of compulsory retirement of the petitioner during the pendency of the departmental proceedings and, therefore, I have no hesitation in holding that it was passed to remove the petitioner from service without completing the departmental proceedings. No doubt, the order impugned by which the petitioner was compulsorily retired from service is an order simpliciter but as pointed out above, in reality it is an order of punishment amounting to removal of the petitioner from service in violation of the provisions of Article 311(2), Constitution of India. In similar circumstances, this Court in a case J.N. Bajpai v. State of U.P. and others, 1990(8) LCD 149 took a view that the order of compulsory retirement is bad in law if the same was passed during the pendency of the departmental enquiry and in my opinion, the present case is fully covered with the decision of J.N. Bajpai (supra). The pendency of the representations etc. The pendency of the representations etc. from 1976 and, thereafter, relying on the said entry against which the representation was pending itself throws doubt about the bona fides of the authorities and in no case it can be said that the order impugned is not arbitrary or mala fide. 7. For the aforesaid reasons, I hold that the order of premature retirement dated 23390 is vitiated and, therefore, I allow the present writ petition and quash the order dated 23390 contained in Annexure No. 12. The petitioner is entitled to reinstatement with ail consequential benefits.