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2001 DIGILAW 455 (ALL)

KASHI RAM AHIRWAR v. STATE OF UTTAR PRADESH

2001-05-09

S.R.SINGH

body2001
S. R. SINGH, J. ( 1 ) THIS writ petition under Article 226 of the Constitution seeks quashing of the order dated 29. 7. 1999 passed by respondent No. 2 thereby compulsorily retiring the petitioner with immediate effect from service by giving him pay in lieu of three months notice. ( 2 ) I have heard Dr. R. Dwivedi. Senior Advocate representing the petitioner and standing counsel appearing for State. ( 3 ) THE petitioner was appointed Junior Clerk in the Consolidation Department in the year 1977. By order dated 31. 3. 1997 he was promoted to the post of senior clerk. A screening committee was constituted by the Joint Director of Consolidation, Jhansi, pursuant to the order dated 21. 7. 1998 of the Consolidation Commissioner, Uttar Pradesh, to evaluate efficiencies of the employees with a view to screen out the dead wood by compulsarily retiring such employees in public interest. The Screening Committe prepared a precis of the A. C. Rs. In respect of various employees inluding the petitioner and recommended that the petitioner be compulsorily retired. ( 4 ) THE precis of A. C. Rs. In so far as the petitioner is concerned, would indicate that the entries in the year 1988-89, 1989-90. 1990-91 and 1991-92 were satisfactory. Sri R. B. Bhaskar, consolidation Commissioner Uttar Pradesh is however, said to have made certain adverse entry in March, 1992 ; in 1992-93 an adverse entry is said to have been made by Deputy Director of consolidation and integrity was also not certified ; entry in the year 1993-94 was satisfactory and entries for the years 1994-95, 1995-96 and 1996-97 were reported to be missing ; entry in the year 1997-98 were satisfactory but by order dated 29-5. 1998. Sri R. D. Tripathi, the Assistant settlement Officer, Lalitpur (c) gave a special adverse entry categorising the petitioner as inefficient. Irresponsible and careless to duty. It is also mentioned therein that while the petitioner was working as Reader, complaints were received from the public in respect of corruption on the basis of which he was removed from the post of Reader and the petitioner was found to be indulging in corruption, his integrity was not certified. Category of work was found to be poor. In the year 1998-99 also, Sri R. D. Tripathi, Settlement Officer Consolidation. Lalitpur described the petitioner as most corrupt employee. Category of work was found to be poor. In the year 1998-99 also, Sri R. D. Tripathi, Settlement Officer Consolidation. Lalitpur described the petitioner as most corrupt employee. ( 5 ) ON the basis of the above evaluation and recommendation, the petitioner was compulsorily retired with immediate effect vide impugned order. The question is whether the impugned order is sustainable ? Clause (c) of Fundamental Rule 56 of the Financial Hand Book Vol. II Parts II to iv provides that the appointing authority may at any time by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service of twenty years. The period of such notice shall be three months. Fundamental Rule 56 in so far as it is relevant for the purpose of this case is quated below : "56 (a) xxx xxx (b) xxx xxx xxx (c) Notwithstanding anything contained in clause (a) or clause (b) the appointing authority may. at any time, by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of 50 years, or such government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of 45 years or after he has completed qualifying service of 20 years. (d) The period of such notice shall be three months : provided that (i) any such Government servant may, by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of 50 years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or, as the case may be, for the period by which such notice falls short of three months, at any rates at which he was drawing them immediately before his retirement ; (ii) it shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice : provided further that xxx xxx xxx xxx xxx provided also that xxx xxx xxx xxx xxx (e) xxx xxx xxx explanation.-- (1) The decision of the appointing authority under clause (c) to require the government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital, in the order of such decision having been taken in the public interest. (2) in order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause fc) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration : (a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on ad-hoc basis : or (b) any entry against which a representation is pending. provided that the representation is also taken into consideration along with the entry: or (c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance establishment Act, 1965. (2a) Every such decision shall be deemed to have been taken in the public Interest. provided that the representation is also taken into consideration along with the entry: or (c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance establishment Act, 1965. (2a) Every such decision shall be deemed to have been taken in the public Interest. (3) The expression "appointing authority" means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government is required or wants to retire, and the expression "qualifying service" shall have the same meaning as in the relevant rules relating to retiring pension. (4) xxx xxx xxx xxx xxx" ( 6 ) THOUGH the power of appointing authority under the Fundamental Rule 56 (1) fc) to require a government servant to retire after he attains the age of 50 years is couched in absolute language, the Explanation (1) provides in no uncertain words, and it is settled by a catena of decisions, that the decision to compulsorily retire a Government servant under Fundamental Rule 56 (c) shall be taken on forming an opinion that it would be in the public interest to retire such Government servant compulsorily. The order of premature retirement is passed on subjective satisfaction of the appointing authority and principles of natural justice have no application in the context of an order of compulsory retirement. Judicial review of such an order under Article 226 of the constitution is permissible only on limited grounds of mala fide or absence of any evidence on which the necessary opinion could be formed or arbitrariness in the sense that no reasonable person could have formed the requisite opinion on the given material. Baikuntha Nath Das and another v. Chief District Medical Officer. (1992) 2 SCC 299 . Baikuntha Nath Das and another v. Chief District Medical Officer. (1992) 2 SCC 299 . Explanation (2) of the Fundamental rule 56 as it stands amended by U. P. Act No. 24 of 1975 provides that in order to satisfy whether it will be in public interest to require a Government servant to retire under clause (c), the appointing authority may take into consideration any material relating to the Government servant and nothing therein contained shall be construed to exclude from consideration : (a) any entry relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in officiating capacity or substantive capacity or an ad-hoc basis ; or (b) any entry against which a representation is pending : provided that the representation is also taken into consideration along with the entry ; or (c) any report of vigilance establishment constituted under the Uttar Pradesh Vigilance establishment Act. 1965. Clause (2a) inserted by U. P. Fundamental Rule 56 (Amendment) Act, 1976, provides that every decision requiring a Government servant to retire under clause (c) shall be deemed to have been taken in public interest. ( 7 ) IN Baikuntha Nath Das, the Honble Supreme Court has laid down the following principles touching the question of compulsory retirement : " (i) An order of compulsory retirement is not a punishment. it implied no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records character rolls, both favourable and adverse. If a Government servant is promoted to a higher post nothwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection)and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing thai while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. " ( 8 ) THE observation that principles of natural justice have no place in the context of compulsory retirement made in Baikuntha Nath Das case "does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion, the same can be obviated on the assumptions that other materials alone need be looked into". M. S. Bindra v. Union of Intda, (19981 7 SCC 310. Similarly though an order of compulsory retirement implies no stigma nor any suggestion of misbehaviour but where an order of premature retirement in the guise of "public interest" is found to be a "disguised dismissal", Baldev Raj Chadha v. Union of India, (1980) 4 SCC 321 it cannot be allowed to stand. Further, the observation that an order of compulsory retirement is not a punishment should not be construed to mean that in no case an order of compulsory retirement can be termed as punitive. In my opinion, Baikunth Nath Das does not put any embargo on the power of the Court to lift the veil and find out the true nature of the order. It depends on the facts and circumstances of each case. The language in which the Impugned order in the instant case is formulated clearly shows that the order of compulsory retirement is in fact a disguised dismissal on the charge of financial Irregularity referred to in the order impugned herein. The order impugned herein has been passed not only on the basis of general evaluation of the A. C. Rs. The language in which the Impugned order in the instant case is formulated clearly shows that the order of compulsory retirement is in fact a disguised dismissal on the charge of financial Irregularity referred to in the order impugned herein. The order impugned herein has been passed not only on the basis of general evaluation of the A. C. Rs. but also on account of financial irregularity in the matter of G. P. F. accounts of the employees which aspect was not considered even by the Screening Committee. The impugned order being punitive and stigmatic, the petitioner was entitled to be heard at least about the alleged misconduct involving financial irregularity in respect of G. P. F. accounts of the employees. The impugned order is ex-facie punitive and having been passed sans any opportunity of hearing is liable to be quashed. ( 9 ) APART from the fact that the impugned order of compulsory retirement in the instant case is punitive in nature, the decision to compulsorily retire the petitioner is vitiated by malice in law. It may be pertinent to observe that special adverse entry for the year 1998-99 was given to the petitioner vide order dated 29. 5. 1998 by Sri R. D. Tripathi, Settlement Officer. Consolidation, lalitpur. who acted as Chairman of the Screening Committee. The report of the Settlement officer Consolidation, Jataun at Orai given to the Settlement Officer, Consolidation, Lalitpur vide letter dated 18. 12. 1998 being Annexure-1 to the supplementary rejoinder-affidavit does not appear to have been taken into account by the appointing authority. In the said report, it had been stated that though the entry for the year 1995-96. 1996-97 arc not available, a perusal of the personal file of the petitioner would indicate that no departmental proceeding was initiated against him during the years 1995-96 and 1996-97 in which period the work of the petitioner was good. In the report of the screening committee, it has been mentioned that the character roll entry of 1994-95 too was missing. In fact, the character roll entry for the year 1994-95 was sent by the settlement Officer. Consolidation, Jalaun at Oral, to the Settlement Officer. Consolidation, lalitpur vide letter dated 18. 12. 1998 (Annexure-1 to the supplementary-affidavit ). Sri R. D. Tripathi, the then Settlement Officer, Consolidation. In fact, the character roll entry for the year 1994-95 was sent by the settlement Officer. Consolidation, Jalaun at Oral, to the Settlement Officer. Consolidation, lalitpur vide letter dated 18. 12. 1998 (Annexure-1 to the supplementary-affidavit ). Sri R. D. Tripathi, the then Settlement Officer, Consolidation. Lalitpur presided over the meeting of the screening committee and it was he who gave the special adverse entry for the year 1998-99 vide order dated 29. 5. 1998 and ultimately it is he who passed the impugned order compulsorily retiring the petitioner being of the view that the petitioners retention in Government service would be contrary to the government interests (INKO SARKARI SEVA MEIN RAKHNA rajya SARKAR KE HITON KE VIRUDDH HAI ). It may be observed that public interest is not synonymous to Government interest. Albeit recital of public interest in the order of compulsory retirement is not necessary but the recital of government interest in the Impugned order clearly shows that the appointing authority passed the impugned order on a wrong perception of the vital issue on which it was required to form its opinion in order to pass an order of premature retirement. The correct legal position is that albeit the appointing authority is not obliged to record reason for its decision to prematurely retire a Government servant under fundamental Rule 56 (c) and it is not permissible to Infer on that ground alone that the premature retirement was/is not in public interest but it the grounds or reasons stated in the order disclose a clearly erroneous legal approach, the decision will be quashed. De Smiths Judtcal Review of administrative Action (4th Edn.) by Evans P. 406. In the fact situation of the case, it is clear that the impugned order suffers also from malice in law. The officer who passed the impugned order of compulsory retirement had himself awarded the special adverse entry and presided the screening committee. This is contrary to principles of fairness. That apart the allegation made in para 16 of the writ petition that the 2nd respondent had ill-will and caste bias against the petitioner has not been denied by the 2nd respondent even though he has been impleaded co-nominee a party to the writ petition. ( 10 ) NEXT question that requires consideration is whether in the fact situation of the case, the special adverse entry ought to have been communicated to the petitioner. ( 10 ) NEXT question that requires consideration is whether in the fact situation of the case, the special adverse entry ought to have been communicated to the petitioner. Admittedly, the special adverse entry recorded vide order dated 29. 5. 1998 was not communicated to the petitioner. In baikunth Nath Das, though it has been held that an order of compulsory retirement will not be rendered illegal merely because uncommunicated adverse entries have been relied on but this holding preceeds the following observation : ". . . . . We may reiterate that not only the Review Committee is generally composed of high and responsible officers as the power is vested in Government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. " ( 11 ) CLAUSE (b) of Explanation (2) to Fundamental Rule 56 clearly visualises that mere pendency of representation against the adverse entry is no ground to exclude from consideration such adverse entry provided that representation is also taken into consideration along with the entry. This necessarily enjoins a duty on the appointing authority to take into consideration the representation, if any filed by the Government servant against an adverse entry. This provision impliedly confers a right in the Government servant to get his representation considered along with the adverse entry while taking decision under the Fundamental Rule 56 (c ). A Government servant will stand deprived of this right if the adverse entry is not communicated to him. Exposition of law laid down in Brij Mohan Singh Chopra v. State of Punjab, (1987) 2 SCC 188 , that unless adverse report is communicated and representation, if any, made by employee is considered, it should not be acted upon in retiring on employee prematxirely from service under fundamental Rule 56 (c) is in tune with clause (b) of Explanation (2) to Fundamental Rule 56. The aforesaid decision was no doubt noticed by the Supreme Court in Baikuntha Nath Das wherein it has held that mere circumstance that uncommunicated entry was taken into account while passing an order of compulsory retirement cannot be a basis for interference. But there is nothing to show that the rule therein contained any provision like the one contained in clause (b)of Explanation (2) to Fundamental Rule 56. In my opinion, in order to reach a correct conclusion, version of the petitioner with regard to the entry regarding his alleged indulgence in corruption as also in respect of the alleged financial irregularity regarding G. P. F. accounts of the employees was necessary particularly when soon before the special adverse entry and alleged financial irregularity, the petitioner was promoted to the post of senior clerk. ( 12 ) IN view of the above discussion the petition succeeds and is allowed. The impugned order is quashed. .