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1993 DIGILAW 240 (ALL)

Amir Husain v. State of U. P.

1993-04-07

M.P.SINGH

body1993
JUDGMENT : M.P. SINGH, J. 1. The impugned order is an order of compulsory retirement passed on 21.12.1992. 2. The Petitioner, who was working as a Collection Amin since 1965, was placed under suspension on 16.9.1991. This order was passed in contemplation of an enquiry. An enquiry officer was appointed. Charge sheet was served. 3. On 8.6.1992 a show cause notice was issued to the Petitioner proposing two punishments: (i) non payment of salary 'for the period of suspension and (ii) withholding of two years increment. The Petitioner submitted his explanation on 13.7.1992. An order was passed on 30.9.1992 by the Collector reinstating him and revoking the suspension order but he awarded an adverse entry against him. Against this an appeal has been filed by him before the Commissioner. It is pending. 4. Earlier an adverse entry was awarded against him on 20.2.1990. He filed an appeal against it which according to him is also pending. 5. The Collector exercising the power under Fundamental Rule 56 (c) of the Financial Hand Book passed an order of compulsory retirement against the Petitioner in public interest. The said order is under challenge. 6. Sri R.H. Zaidi, learned Counsel for the Petitioner contended that the impugned order has been passed on account of the fact that the collection was not done by the Petitioner as per target fixed by the Government, but the authorities concerned have failed to take into consideration the pressure of Bhartiya Kisan Union led by Sri Mahendra Singh Takait which was a cause for short realisation. His further contention was that there was no material on record to justify the order of compulsory retirement. Since the two appeals against the adverse entries were pending, the order of compulsory retirement could not have been passed unless they were disposed of finally. The order has been passed as a measure of punishment. 7. After hearing the learned Counsel for the Petitioner I find no merit in the submissions, 8. Fundamental Rule 56 (c) of the Financial Hand Book confers powers on the Government to review the working of its employees at the end of their period of service referred to therein and to require the government servant to retire from service if in its opinion public interest calls for such an order. The rule does not prescribe any other guideline or criteria except the public interest. 9. The rule does not prescribe any other guideline or criteria except the public interest. 9. The object of compulsory retirement of a government servant is to weed out the inefficient, corrupt, dishonest or deadwood from the service. Before passing an order of compulsory retirement all that is necessary is that the authority should consider the report of the screening committee which is based on full and complete analysis of the service record of the employee concerned. The order is always passed on subjective satisfaction of the government. The Government has to form an opinion that it is in the public interest to retire a government servant compulsorily. 10. The screening committee constituted has to consider the entire record of service before taking a decision in the matter. Of course more importance is to be attached to the record and performance of the employee during the last years. The record to be considered would naturally include the entries in the confidential character roll. 11. This Court while exercising the power under Article 226 of the Constitution normally is not inclined to interfere with such an order as it does not amount to punishment. But judicial scrutiny is not altogether ruled out. The Court may interfere if it is satisfied that the order has been passed on mala-fide grounds or it is based on no evidence or it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material. 12. The main thrust of the argument of the learned Counsel for the Petitioner was that the order of compulsory retirement could not have been passed so long the appeals filed by the Petitioner remained pending. In support of his contention he has relied upon decision State of Punjab and Another vs. Shri Sukh Raj Bahadur, AIR 1968 SC 1089 , State of Uttar Pradesh vs. Purshottam Swarup Johari, 1976 ALR 316, wherein it has been held that the order of compulsory retirement if passed during the pendency of the departmental enquiry will be illegal. In addition to that, similar view was taken in the cases Gurdial Singh Fijji vs. State of Punjab and Others, (1979) 2 SCC 368 and Amarkant Choudhary vs. State, 1984 (2) SCR 2999. 13. In addition to that, similar view was taken in the cases Gurdial Singh Fijji vs. State of Punjab and Others, (1979) 2 SCC 368 and Amarkant Choudhary vs. State, 1984 (2) SCR 2999. 13. The law of compulsory retirement has been reviewed by the Supreme Court at great length in the case of Baikuntha Nath Das vs. District Chief Medical Officer, Banpada JT 1992 (2) 1 in which it has been held that even un-communicated adverse entries can be looked into for passing the order of compulsory retirement. It leads to a logical conclusion that even if the representation/appeal is pending against the adverse entries it should not be given any undue importance. 14. A government servant in order to escape the consequences of compulsory retirement and to defeat the object of fundamental Rule 56 (c) may keep the matter alive by filing representation/appeal or by filing a claim petition before the Services Tribunal. He can successfully keep it pending till he attains the age of superannuation. The procedure prescribed under the rules is time consuming. The Government cannot be rendered helpless in passing the order of compulsory retirement unless the representation is finally disposed of. In case the Government is compelled to wait the decision on representation/ appeal, then the whole object of passing the order of compulsory retirement will frustrate, 15. The Supreme Court in the earlier case Union of India vs. M.E. Reddy and Another, (1980) 2 SCC 15 , has held that even an un-communicated adverse remark can also be relied upon while passing the order of compulsory retirement, This view has been approved in the case of Baikunth Nath Das (supra). In view of this judgment, the earlier view that no order of compulsory retirement can be passed during the pendency of appeal/representation is no more a good law. 16. After hearing the learned Counsel for the Petitioner and perusing the record I am of the view that the impugned order has neither been passed by way of punishment nor it is arbitrary. 17. I find no merit in this writ petition. It is accordingly dismissed in limine.