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2003 DIGILAW 1472 (ALL)

Dal Singh v. State of U. P.

2003-07-08

D.R.CHAUDHARY

body2003
JUDGMENT : D.R. Chaudhary, J. By means of this petition, the Petitioner has challenged the order dated 15.11.1994 retiring him compulsorily with immediate effect under the provisions of Financial Handbook Vol. II, (Parts II to IV), Fundamental Rule 56(1)(c). 2. It is contended for the Petitioner that his service record has been unblemished throughout, no adverse entry was ever awarded to him, has not been taken notice of by the Screening Committee, the Petitioner is physically fit with good health ; there was no material before the Review Committee to form opinion to recommend compulsory retirement ; the Review Committee picked up the Petitioner and arbitrarily recommended for premature retirement in order to comply the mandate of the Chief Engineer (Establishment) P.W.D., U.P., Lucknow contained in his letter dated 10.12.1993 ; the opinion of the Review Committee that the Petitioner is physically unfit is wholly without basis as no medical opinion was sought from the C.M.O. or the Medical Board ; Petitioner's date of retirement according to his date of birth recorded in his service book is 31.3.2003 and he is entitled to continue in service with all consequential benefits ; the order impugned is violative of principle of audi alteram partem as contemplated under Rule 56D of Fundamental Rules ; the order impugned is wholly illegal, unjustified and suffer from vice of arbitrariness. 3. In the counter-affidavit, it is stated that the Review Committee found the Petitioner physically unfit ; the impugned order passed on recommendation of the Review Committee is in the public interest hence no opportunity of hearing is necessary. Assertion in writ petition that Petitioner's service is clean and unblemished, has not been disputed by the Respondents, it has also not been disputed by the Respondents that there was no material before the Screening Committee to form opinion and to recommend premature retirement. 4. As required by the Court, the report of the Screening Committee was produced before the Court along with the copy of the impugned order. I have perused the record. It appears from the record that as many as 57 employees were screened. In the remark column of some of the employees, the opinion as physically fit/unfit is mentioned and further no opinion is recorded against several employees of the list and the remark column left blank ; there is no expert medical opinion on record. It appears from the record that as many as 57 employees were screened. In the remark column of some of the employees, the opinion as physically fit/unfit is mentioned and further no opinion is recorded against several employees of the list and the remark column left blank ; there is no expert medical opinion on record. Thus, opinion of Review Committee is without any basis or material on record. It is also evident from the record that the employees who are elder in age to the Petitioner, have been retained and in that view of the matter, the age has not taken to be the criterion for recommending premature retirement. 5. The order of premature retirement is passed on subjective satisfaction of the appointing authority and the principles of natural justice have no application in this context. Judicial review of such an order under Article 226 of the Constitution is permissible only on limited grounds of mala fide or in the absence of any evidence of material the necessary opinion could be formed or arbitrariness in the sense that there is no reasonable person could form the requisite opinion. In the present case, as stated above, there is no material at all before the Review Committee to form its opinion to retire the Petitioner prematurely. 6. In the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 SC 1029, the Supreme Court has enunciated the following principles : (i) An order of compulsory retirement is not a punishment. It implies 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. 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 notwithstanding 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 that while passing it uncommunicated adverse remarks were also taken into consideration. The circumstance by itself cannot be a basis for interference. 7. Similar to the view of Baikuntha Nath Das (supra), the Supreme Court in S. Ramachandra Raju Vs. State of Orissa, AIR 1995 SC 111 , has reiterated thus : The whole purpose of the rule is to weed out the worthless without the punitive extremes covered by Article 311 of the Constitution, after all, Administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthiers. They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive, insouciant, unintelligent or dubious conduct impede the flow or promote stagnation. In a country where speed, sensitivity, probity, and non-irritative public relations and enthusiastic creativity are urgently needed, paper logged processes and callous cadres are the besetting sin of the Administration. In a country where speed, sensitivity, probity, and non-irritative public relations and enthusiastic creativity are urgently needed, paper logged processes and callous cadres are the besetting sin of the Administration. It is in public interest to retire a never do well, but to juggle with confidential reports when a man's career is at stake is a confidence trict contrary to public interest. Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision making. The appropriate authority, not the Court, makes the decision but even so, a caveat is necessary to avoid misuse. 8. In the case of Kashi Ram Ahirwar Vs. State of U.P. and others, (2001) AWC 1525, this Court, in the light of the decisions of the Apex Court examined the principles of natural justice in public interest as enunciated under Rule 2A of Fundamental Rules 56 and has observed thus : 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 Vs. Union of India and Others, AIR 1998 SC 3058 ]. Similarly though an order of compulsory retirement implies no stigma nor any suggestion or misbehaviour but where an order of premature retirement in the guise of 'public interest' is found to be a 'disguised dismissal', [Baldev Raj Chadha Vs. Union of India (UOI) and Others, AIR 1981 SC 70 ], 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, Baikuntha 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 if 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. It depends on the facts and circumstances of each case. The language in which the impugned order in the instant case if 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.R.s 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. The Petitioner has also relied upon a decision rendered by this Court in the case of Devi Sharan Sharma Vs. District Magistrate, Meerut and others, (2000) 1 AWC 510 and Kamlakar Upadhya Vs. State of U.P. and Others, (2002) 2 AWC 1716 . 10. Having heard the learned Counsel for the parties and having perused the record and the judgments relied upon by the learned Counsel for the Petitioner, I am of the view that the order impugned is arbitrary and suffers from malice in law. There was no material before the Screening Committee to form an opinion to retire the Petitioner compulsorily. 11. In the result, the writ petition succeeds and is allowed. The impugned order dated 15.11.1994, Annexure-5 to the writ petition, is quashed. The Petitioner shall be treated in continuous service notionally and shall be entitled to all consequential benefits. 12. Parties shall bear their own cost.