Y. S. R. Anjanayulu v. Jawaharlal Nehru Krishi — 1992 DIGILAW 101 (MP)

ORDER K.L. Issrani, J. 1. This is a petition under Articles 226/227 of the Constitution of India, by which the petitioner seeks to challenge the legality and validity of the order of compulsory retirement dated October 24, 1990 passed by the Vice-Chancellor of the respondent University. 2. According to the petitioner, the age of retirement is 60 years as per Section 14 of the Vishwa Vidyalaya Statute, 1964 (hereinafter called the Statute). He is aged 56 years only and has been made to retire by order dated October 24, 1990 (Annexure 'A') with immediate effect without any justification resorting to the provisions of Section 11(4)(i) of the Statute and Fundamental Rule 56(a)(3). According to the petitioner, as per Section 11 of the statute, one can be retired on attaining the age of 55 years or on completion of 25 years of qualifying service on three month's notice, without assigning any reason, or pay in lieu thereof, provided his retention is found to be not in public interest or in the interest of the University. After the age of 57 years, only one month's notice is required in such a case. The petitioner further submits that the Fundamental Rules applicable to the Govt. servants have been adopted by the University for its employees and the provisions of Sub-rule (3) of Fundamental Rule 56(a) are pari materia of Section 11(4) (i) of the Statute. 3. The allegation of the petitioner is that in the meeting held on October 12, 1990, wherein the matter of his compulsory retirement was considered, the said matter was not in the agenda. The petitioner also challenges this order on the ground of mala fides. He submits that for a long time in the past the authorities have been planning for his retirement. His grievance is that the order of the Board of Management of the University was not communicated to him. He was not heard before passing the order of compulsory retirement. The mala fides alleged are that it was the calculated effort of the Vice-Chancellor at whose instance the order of compulsory retirement was passed as the Vice-Chancellor desired to oust the petitioner from the University services before his attaining the age of retirement, i.e. 60 years. There was no element of public interest or interest of the University involved justifying compulsory retirement of the petitioner. There was no element of public interest or interest of the University involved justifying compulsory retirement of the petitioner. The order is squarely arbitrary and violative of Articles 14 and 16 of the Constitution of India. The petitioner further submits that one P.K. Tiwari, who was working as Sub-Engineer under him, was close to the Vice Chancellor. He was working President/ General Secretary of an unrecognized Union of the University employees. He never used to work and was totally insincere towards his work assignment. The petitioner being the supervisory authority had to take action against him. For this there was an agitation against the petitioner, which went on for over two months. One of the demands made by the employees was the removal of the petitioner. The petitioner states that it appears that the Vice-Chancellor yielded to the pressure of the so- called unrecognized Union of the employees and sacrificed the petitioner for no reason. 4. The respondent has denied the allegations of the petitioner and has submitted that the work of the petitioner was not satisfactory for the last few years. The retirement of the petitioner was done in public interest and in the interest of the University as per provisions of Statute 11(4)(i) and the Fundamental Rules with the directions that the Vishwa Vidyalaya will pay the petitioner three month's salary in lieu of the notice as per provisions. It was denied that the matter was not placed before the Board. According to the respondent, the Board of Management in its 120th meeting held on April 28, 1990, had decided to form several sub-committees and allocated them different areas in the Vishwa Vidyalaya to assess the progress of teaching, research and extension and other problems in the various research stations situated in their areas. Accordingly, Padmashri Narendra Singh Ju Deo was given the work of assessment as One Man Committee of the Board for Tikamgarh, Sagar, Jabalpur and Chhindwara Research Stations, of the Vishwa Vidyalaya, who inspected the Regional Research Station, Sagar, on August 30, 1990 and submitted his report to the Vishwa Vidyalaya. He gave a very poor report about the quality of construction at Sagar, which led to the discussion of the working of the work station of the J.N.K.V.V. and performance of the Executive Engineer (Petitioner) who was in charge of all the works and responsible for omission and commission. He gave a very poor report about the quality of construction at Sagar, which led to the discussion of the working of the work station of the J.N.K.V.V. and performance of the Executive Engineer (Petitioner) who was in charge of all the works and responsible for omission and commission. This resulted in the retirement of the petitioner. It was denied that the order of compulsory retirement was either arbitrary or illegal or the cumulative effort of the Vice-Chancellor or Vishwa Vidyalaya authorities. It was also submitted that there was no question of long term planning for the retirement of the petitioner. The petitioner himself went on leave on September 25, 1990 and did not turn up on his duties for a long time. He had applied only for seven days' leave but went on extending the same. The order of the Board of Management of the University was communicated to the petitioner when he returned from leave. There was no question of suppression of the decision. This order of compulsory retirement was issued in the interest of the Vishwa Vidyalaya and also in public interest. 5. The respondent further submitted that though the petitioner is working on the post of Executive Engineer since 1977 but during this long period of 16 years, the petitioner had several heart attacks and was admitted in the Intensive Care Unit of the Medical College Hospital on several occasions and has undergone bypass surgery at the Apollo Hospital at Madras, which did not succeed, and had finally to go in for open heart surgery. The Vishwa Vidyalaya has all along been paying for medical treatment of the petitioner for the last several years, which amounted to Rs. 90,131.00 in the years 1987-1988 and about Rs. 10,000/- in the year 1989-1990. The more important fact is that his heart ailment curtailed his efficiency tremendously. A perusal of the tour statement submitted by the petitioner will clearly show that it was not possible for him to travel to the vast areas extending from Shahdol to Mandsour and Morena to Chhindwara and, therefore, he was physically unfit to travel, with the result that the quality of work suffered for want of effective supervision. The foundation stone for M.A.R.P. construction work at Rewa was laid down on February 5, 1990. Even after 8 months, the petitioner could not afford to travel to Rewa even once. The foundation stone for M.A.R.P. construction work at Rewa was laid down on February 5, 1990. Even after 8 months, the petitioner could not afford to travel to Rewa even once. The construction work at Mandsour is complete since last more than four months, but the petitioner could not travel to Mandsour with the result that the final measurement could not be taken up and the contractor has given notice to file a civil suit against the Vishwa Vidyalaya for non-payment of his dues. 6. During recent years, the World Bank has sanctioned a sum of Rs. 2.54 cores for construction work and it pains to state that the petitioner could do nothing with regard to construction work and the World Bank is doubtful whether the work will at all be completed by 1992-93. 7. Several complaints about poor quality of construction work and letter of supervision were received by the Vishwa Vidyalaya and the Board of Management for the last more than 7 years had been seized of the matter. At the instance of the Government of Madhya Pradesh Shri G.C. Puri, the Chief Technical Examiner (Vigilance), M.P., had inspected several works of the Vishwa Vidyalaya supervised by the petitioner and the report of the Chief Technical Examiner is filed on record as Annexure R-4. This report resulted into a departmental enquiry against the petitioner which could not be completed due to non-cooperation by the petitioner from time to time. The Board of Management took into consideration these facts and finally after fully applying its mind to the same, took a decision in public interest because any delay in this regard would have resulted into disrepute to the Vishwa Vidyalaya. The latest health report of the petitioner dated December 24, 1990 was given by Dr. B.N. Shrivastava, Dean, Medical College Hospital, Jabalpur, to the effect that the petitioner is "suffering from old miocardial infection, hypertension and diabetes", which is filed on record as Annexure R-5. Therefore, according to the respondent, under these circumstances, there is no question of the Board of Management resorting to any arbitrary powers and the decision taken is legal, just and fair. 8. The adverse reports about the quality of the construction work as well as poor quality stage of construction work in the letter of supervision has been mentioned in several reports of the World Bank, which are placed on record as Annexure R-6. 8. The adverse reports about the quality of the construction work as well as poor quality stage of construction work in the letter of supervision has been mentioned in several reports of the World Bank, which are placed on record as Annexure R-6. The Board of Management was, therefore, left with no other alternative but to do away with the petitioner, who is only Executive Engineer in the University supervising the construction work in 37 districts. Therefore, this decision taken in accordance with the provisions of the Statue is fair, just and in the interest of the Vishwa Vidyalaya. 9. According to the respondent, the retirement of the petitioner has been done in public interest and in the interest of the University as per provisions in the Statute No. 11(4) (i) and Fundamental Rule 56 (a) (3) and the petitioner was paid 3 months' salary in lieu of 3 months' notice as per provisions. Therefore, such action of the Vishwa Vidyalaya is legal and valid. The decision of the Board was taken after full discussion of the entire matter and unanimously. 10. For deciding the matter, it is necessary to reproduce the relevant provisions of the Statute and the Fundamental Rules. Sub-section (4) of Section 11 bf the Statute reads as under: "(4) All officers except the Chancellor and the Vice-Chancellor of the Vishwa Vidyalaya mentioned under Section 12 of the JNKVV Act, 1963, teaching staff of the Vishwa Vidyalaya as defined under Section 32 of the Vishwa Vidayalaya Statute, non-teaching service personnel of Class-I, Class-II, Class-III and Class-IV categories as detailed in Regulation No. 4 of the JNKVV Services (General Conditions of Service) Regulations, 1969, shall be entitled to be in service of the Vishwa Vidyalaya until they complete the age of 60 years provided that- (i) all Vishwa Vidyalaya employees may, in the public interest or in the Vishwa Vidyalaya interest, be retired at any time after they attain the age of 55 years or 25 years of qualifying service, on three months' notice without assigning any reason or on payment of three month's pay and allowances in lieu of such a notice; (ii) the case of a Vishwa Vidyalaya employee on his completing the age of 57 years shall be screened at the end of each year with a view to determining his suitability in all respects to continue upto the age of 60 years. In case an employee is not found fit to continue beyond the age of 57 years, he shall be retired without assigning any reason on giving one month's notice or pay and allowances in lieu of such a notice. (iii)....xx......xxxx..............xxx...xxx" Sub-rule (3) of the Fundamental Rule 56(a) reads as under: "A Government servant may, in the public interest, be retired at any time after he attains the age of 55 years on three months' notice without assigning any reason or on payment of three months' pay and allowances in lieu of such notice." As laid down in Union of India v. J.N. Sinha 1970-II-LLJ-284 compulsory retirement involves no civil consequences. While considering Fundamental Rule 56(j), the Apex Court held that the right conferred on the appropriate authority to retire a Government servant in public interest is an absolute one. If the authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts. 11. Termination of service by way of premature retirement cannot be equated with the penal order of removal or dismissal. In Union of India v. M.E. Reddy, 1980-I-LLJ-7, it has been held that the confidential reports can certainly be considered by the appointing authority in passing the order of retirement. If the order of compulsory retirement of a Government Servant in public interest does not cast any stigma, the Rule 16(3) of the All India Services (Death-cum- Retirement) Rules, 1958 expressly excludes the principle of natural justice. In that case, the Apex Court considered Rule 16(3) empowering the Government to retire a Government servant who has completed 30 years of qualifying service or who has attained the age of 55 years on giving three months' notice. The Apex Court has analysed the requirements as under: (p. 10): "1. That the member of the Service must have completed 30 years of qualifying service or the age of 50 years (as modified by notification dated July 16, 1969); 2. That the Government has an absolute right to retire the Government servant concerned because the word "require" clearly confers an unqualified right on the Central Government; 3. That the order must be passed in public interest; 4. That three months' previous notice in writing shall be given to the Government servant concerned before the order is passed." 12. That the Government has an absolute right to retire the Government servant concerned because the word "require" clearly confers an unqualified right on the Central Government; 3. That the order must be passed in public interest; 4. That three months' previous notice in writing shall be given to the Government servant concerned before the order is passed." 12. In State of U.P. v. Chandra Mohan, 1978-I-LLJ-6 it was considered that the termination of service by way of premature retirement cannot be equated with a penal order of removal or dismissal. Even so, an order of compulsory retirement may be challenged in a Court if it is arbitrary or is actuated by mala fides. Even in the case of an order of dismissal by way of punishment if the petitioner raises several grounds on which the order is founded and one or two of those fail and the order can still rest on the surviving ground or grounds disclosing a prima facie case of guilt or misconduct, the same cannot be held to be invalid by applying the subjective test of preventive detention (p. 12). In this case also, the Apex Court was considering the Rule 16(3) of the All India Services (Death-cum- Retirement) Rules. In Brij Mohan Singh v. State of Punjab, 1987-I-LLJ-522 the Apex Court considered Rule 3 of Punjab Civil Services (Premature Retirement) Rules, 1975 and held that the rule contemplates premature retirement of the inefficient, corrupt or dead-wood which would subserve the public interest. A public servant can be retired compulsorily in public interest even when there is certain entry in service record casting doubt of integrity of the employee. Rule 3 invests absolute right in the appropriate authority to retire an employee prematurely on his completion of 25 years of qualifying service or 50 years of age. According to the Apex Court, the public interest in relation to public administration envisages retention of honest and efficient employees in service and dispensing the services of those who are inefficient dead-wood or corrupt and dishonest. 13. According to the Apex Court, the public interest in relation to public administration envisages retention of honest and efficient employees in service and dispensing the services of those who are inefficient dead-wood or corrupt and dishonest. 13. Recently the Apex Court in C.D. Ailawadi v. Union of India 1991-II-LLJ-285 relying on the principles laid down in Union of India v. J.N. Sinha (supra) has held that if the allegation of non-formation of requisite opinion or the decision being arbitrary or based on collateral grounds is not made out, the order of compulsory retirement based on merits justifying the decision is valid under F.R. 56, because according to the Apex Court, compulsory retirement under Rule 56, is not a punishment and it does not take away any of the past benefits. 14. In this case, we have to see as to whether the order of compulsory retirement passed in the case of the petitioner is in any way arbitrary or based on collateral grounds which are not made out. One thing which the petitioner has challenged is that the Vice-Chancellor of the respondent University was having prejudices against the petitioner and had malicious intentions to see that the petitioner is weeded out. For this, the petitioner has given example of P.K. Tiwari, Sub-Engineer under him. The petitioner had taken action against him, which was not liked by the Vice-Chancellor. Rather the Vice-Chancellor yielded to the pressure of the Union and sacrificed the petitioner for no reason. The respondent Vice-Chancellor has specifically denied the allegations to be incorrect except that there has been an agitation for a long time against the petitioner and that there were several complaints demanding removal of the petitioner. Two such complaints have been enclosed as Annexures R-7 and R-8. The report of enquiry submitted by the High Power Committee is filed as Annexure R-10. It is submitted that the decision to compulsorily retire the petitioner is not taken by the Vice-Chancellor, but by the Board of Management unanimously. In the rejoinder, the another question of mala fide of the Vice-Chancellor against the petitioner raised is that one Kotecha, Architect was employed on contract basis in the University. His contract was terminated. He got a question raised in Vidhan Sabha, regarding medical expenses / reimbursement to the petitioner. In the rejoinder, the another question of mala fide of the Vice-Chancellor against the petitioner raised is that one Kotecha, Architect was employed on contract basis in the University. His contract was terminated. He got a question raised in Vidhan Sabha, regarding medical expenses / reimbursement to the petitioner. The petitioner submits that it is shocking that the persons of the status of Vice- Chancellor and Registrar make such false statements and give misleading information to this Hon'ble Court. This fact has also been denied by the respondent, who has submitted that it was Shri Omkar Tiwari, the then M.L.A. and now Minister of State in the State Ministry, who has raised a star question in the Assembly. It was not raised by the Architect. The respondent has denied any mala fide against the petitioner on that account. These facts do not lead to a conclusion that the Vice-Chancellor had any malice against the petitioner on this account. It is denied that this order of compulsory retirement totally lacks bona fides and amounts to appease the disgruntled employees of the University. We, therefore, find that the allegations of mala fides pleaded by the petitioner against the Vice-Chancellor personally have no base. According to the respondent, the matter of retirement of the petitioner was placed before the Board in its meeting held on October 12, 1990. The Board, after considering the overall working of the petitioner and looking to the inefficient and health conditions of the petitioner, thought it proper to retire him compulsorily resorting to the provisions as contained in Section 11(4) (1) of the Statute read with F.R. 56(a) (3), which does not cast any stigma on his service. In lieu of three months' notice he was ordered to be paid three months' salary as per provisions of the Statute. According to the respondent, the petitioner has not chosen to challenge this order before the Chancellor but has chosen to come before this Court. 15. After filing of the return, the petitioner wanted to justify his action by denying his sole responsibility of supervision of the work stating that the Board has not applied its mind to the facts of the case on arriving at the decision of compulsory retirement of the petitioner. 15. After filing of the return, the petitioner wanted to justify his action by denying his sole responsibility of supervision of the work stating that the Board has not applied its mind to the facts of the case on arriving at the decision of compulsory retirement of the petitioner. In reply to the rejoinder, the respondent has denied this allegation also and has filed Annexure R-12 showing comprehensive duties of the petitioner including planning, investigation, construction and maintenance of all engineering works entrusted to his charge and accounts of expenditure thereto as laid down in the Rules under M.P. Works Department Manual, 1983. Besides this, the respondent submitted that the petitioner himself acknowledges that he did suffer from heart attacks more than once and had to be admitted in the Medical College Hospital, Jabal-pur, very often. Because of this, he was not able to visit and supervise the work carried on by the University efficiently. All this was considered in the Board meeting held on October 12, 1990. The minutes and subject-matter of the Board meeting are filed as Annexure R.11. The Board has given an exhaustive and speaking recom mendation for non-retention of the services of the petitioner in public interest/Vishwavidya-laya interest, after taking into consideration the report of the Board Member, the service record, the ill health and gross irregularities committed by the petitioner having been questioned by no less authority than the Chief Technical Examiner (Vigilance), M.P. (Annexure R-4), Field Report of IDA/ICAR Supervision Mission regarding the progress of civil works at various research stations (Annexure R-6) apart from the complaint forwarded by the Lok Ayukt, M.P. (Annexure R-9) and observations made by the High Power Committee (Annexure R-10) and the Statutory Auditors of the Local Fund Accounts, Madhya Pradesh. The respondent further submits that the public work of the Vishwa-vidyalaya were undertaken at Sagar, Khandwa, Chhindwara, Indore, Mahu and Rewa. Yet since 1986, the petitioner could undertake 28 visits only of these stations as per Annexure R-13. Sites for construction could not be worked out since the applicant failed to visit the stations obviously because of poor health. Failure on part of the petitioner has resulted into filing of the civil suit by the Contractor at Mandsour. Yet since 1986, the petitioner could undertake 28 visits only of these stations as per Annexure R-13. Sites for construction could not be worked out since the applicant failed to visit the stations obviously because of poor health. Failure on part of the petitioner has resulted into filing of the civil suit by the Contractor at Mandsour. Lapses on part of the petitioner have been summarized in Annexures R.14-A and R. 14-B. Lapses in various civil works carried on by J.N.K. V.V. are detailed in Annexure R.14-A. While going through Annexures R-1 to R-14-A and R.14-B, it cannot be said that the allegations of the respondent about inefficiency and ill health of the petitioner are perverse. Annexure-R-1 is the report of the Sub-Committee of the Board of Management, which in short states that the quality of construction work of the new buildings is very poor. All the roofs are leaking. Most of the joints exhibit cracks. The pier is peeling. Annexure R-2 is the Vidhan Sabha question. Annexure R-3 gives details of the medical reimbursements and leave taken by the petitioner. Annexure R-4 is the report of the Chief Technical Examiner (Vigilance) of the State Government relating to poor quality of work at J.N.K. V.V. Annexure R-5 is the latest certificate about the health of the petitioner issued by the Dean, Medical College, Jabalpur. Annexure R-6 is the extract of the reports of the World Bank Mission about the quality of construction, poor work and lack of supervision of the work in J.N.K.V.V. Annexures R-7 and R-8 are the complaints received from the Employees' Union. Annexure R-9 is the copy of the complaint received from the Lok Ayukt Office, Bhopal. Annexure R-10 is the copy of the objections and observations of the High Power Committee constituted by the Madhya Pradesh Government. Annexure R-14-A is the report about lapses in civil works of J.N.K.V.V. As mentioned by the petitioner himself that he got the services of the Architect terminated, this fact may lead to the result that the petitioner was more responsible for the construction work. Annexure R-14-B is the report of the Superintending Engineer for the construction work at Khandwa. Annexure R-11 is the copy of the minutes of the Board Meeting held on October 12, 1990, its item No. 17 deals in details, considered about the state of affairs of the petitioner and the recommendation to retire him compulsorily. Annexure R-14-B is the report of the Superintending Engineer for the construction work at Khandwa. Annexure R-11 is the copy of the minutes of the Board Meeting held on October 12, 1990, its item No. 17 deals in details, considered about the state of affairs of the petitioner and the recommendation to retire him compulsorily. 16. Looking to the aforesaid details, we are of the opinion that the appropriate authority rightly felt that the petitioner was inefficient and has ceased to be useful to the University and, therefore, he should be retired prematurely. We think, the respondent took this decision bona fide in order to avoid further disrepute to the University. The decision is in public interest and interest of the University. Once the opinion is reached on the basis of the material on record, in our opinion, the order cannot be treated to be arbitrary. Relying on Union of India v. M.E. Reddy, (supra) and C.D. Ailawadi v. Union of India (supra), and also on Union of India v. J.N. Sinha (supra) a similar view has been taken by this Court in Surendra Kumar Mishra v. Municipal Commissioner, Durg and three Ors., M.P. No. 2450 of 1986 decided on January 9, 1991. 17. With the result, the petition fails and is hereby dismissed. There shall, however, be no order as to costs. Security amount, if any, be refunded to the petitioner.