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Madhya Pradesh High Court · body

2000 DIGILAW 681 (MP)

R. D. Vyas v. C. K. Shrivastava

2000-07-18

S.S.SARAF

body2000
ORDER Arun Mishra, J. 1. The moot question for consideration is whether the order of compulsory retirement of the petitioner is legal and valid and could be passed without the matter being on agenda. 2. The petitioner was working as Sweeper/Scavenger. She was appointed on 13-12-1977. She had completed service of 23 years. Her date of birth was determined in the year 1993 to be 40 years. All of a sudden, the petitioner submits, that without the matter being on agenda, a resolution was passed by the Council on 2-11-2000 ordering the retirement of the petitioner on the allegations that petitioner did not render the services herself and was used to get the work done through other persons by making the payment. The Vice-President and the President of Health Committee have also filed certain complaints; hence it was decided to compulsory retire the petitioner from service. Petitioner submits that though President-in-Council did not pass any resolution on 30-8-2000 with respect to compulsory retirement of the petitioner, however, while confirming the minutes of President-in-Council, the General Council had passed additional resolution under the guise of confirmation of the minutes of the President-in- Council which is impermissible in view of Section 56 Sub-section (4) of M.P. Municipalities Act, 1961 (for short 'the Act of 1961'). 3. Respondents have filed their return and in the return it is not disputed that the matter was not decided by the President-in-Council and while confirming the minutes, it was incorporated in the meeting of the General Body of Municipal Council, hence the compulsory retirement was ordered. In the return, it is urged that show cause notices were given several times, but there was no improvement in work and behaviour of the petitioner and she had mentioned the wrong date of birth while entering into the service. 4. Order Annexure P/2 is illegal for the singular reason that for passing a resolution, it is necessary that provision of sub-section (3) of the Section 56 of the Act of 1961 is complied with. It has not been complied with. Sub-section (3) of Section 56 provides that notice of every meeting specifying the time and place thereof and the business to be transacted thereat shall be despatched to every Councillors and exhibited at the Municipal Office seven clear days before an ordinary meeting and three clear days before a special meeting. It has not been complied with. Sub-section (3) of Section 56 provides that notice of every meeting specifying the time and place thereof and the business to be transacted thereat shall be despatched to every Councillors and exhibited at the Municipal Office seven clear days before an ordinary meeting and three clear days before a special meeting. No notice was given that the matter of compulsory retirement of the petitioner was to be considered in the meeting of the Council dated 2-11-2000. Sub-section (4) of Section 56 of the Act of 1961 creates a bar for consideration of any other subject, other than specified in notice relating thereto. Sub-section (3) and (4) of Section 56 of the Act of 1961 are quoted below:- 56(3) Notice of every meeting specifying the time and place thereof and the business to be transacted thereat shall be despatched to every Councillors and exhibited at the Municipal office seven clear days before an ordinary meeting and three clear days before a special meeting. 56(4) No business other than that specified in the notice relating thereto shall be transacted at a meeting. 5. In Rajbahadur Mishra vs. Municipal Council, Maharajpur and others 1969 JLJ 95, a Division Bench of this Court considered the impact of sub-section (4) of section 56 of the Act of 1961 and held that any resolution passed without the same being entered in the agenda of the meeting is per-se invalid contrary to express provision contained in sub-section (4) of section 56 of the Act of 1961. Provision of section 3 of section 56 has the purpose behind it. When matter is brought to the agenda, due consideration is warranted. Without the item being on agenda, due consideration cannot be said to have been made which itself manifests from resolution P/2. President-in-Council had not taken a decision in its meeting dated 30th August, 2000 to retire the petitioner from service. As a matter of fact, matter of the petitioner's service was not at all in consideration before the President-in-Council. How this item could be considered and petitioner could be retired while confirming the minutes when item was not considered by President-in-Council; while considering confirmation of minutes, new item is not permissible to be added. Thus, addition of item while confirming minutes was totally illegal and without authority of law. The order is manifestly illegal for this reason alone. 6. How this item could be considered and petitioner could be retired while confirming the minutes when item was not considered by President-in-Council; while considering confirmation of minutes, new item is not permissible to be added. Thus, addition of item while confirming minutes was totally illegal and without authority of law. The order is manifestly illegal for this reason alone. 6. Order Annexure P/2 is liable to be quashed for another reason that the entire service record was not at all considered which is the mandatory requirement while retiring a person compulsorily. As a matter of fact oral statement of "Smt. Keshar Bai was accepted that Petitioner was habitual not to render the services herself, and there were complaint by Vice-President and Chairman of Health Committee, thus, the compulsory retirement was ordered. If there was any serious allegation enquiry should have been conducted. Whatever that may be, it is suffice to say that the order of compulsory retirement without considering the entire service record is manifestly illegal. Law with respect to compulsory retirement has been crystalized in State of Gujarat vs. Umedbhai M. Patel, AIR 2001 SCW 862 , and the Supreme Court has laid down the following principles:- (i) When the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to Chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer is given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. 7. In the return, attempt has been made to justify the order of compulsory retirement. (vii) If the officer is given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. 7. In the return, attempt has been made to justify the order of compulsory retirement. Order cannot become valid by supplying the additional reasons in the return. Consideration should reflect in resolution. Even otherwise the dispute as to the age could not be a ground to compulsory retire the petitioner from service. 8. The impugned order Annexure P/2 is, thus, liable to be set aside and is quashed. The writ petition is allowed. Reinstatement of the petitioner is directed along with back wages. Cost on parties.