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2003 DIGILAW 91 (GAU)

Ram Palak Rai v. Government of Meghalaya

2003-03-04

AFTAB H.SAIKIA

body2003
JUDGMENT A.H. Saikia, J. 1. Heard Mr. B.N. Dutta, learned Sr. counsel assisted by Mr. B.K. Das, learned Counsel for the Petitioners. Also heard Mr. K.S. Kynjing, learned Sr. counsel assisted by Mr. K. Sunar, learned Counsel appearing on behalf of the Respondents, Meghalaya State Electricity Board (for short "the Board"). 2. By this writ petition, the Petitioners have challenged the legality and validity of the impugned office order dated 19.4.97 (Annexure-I to the writ petition) issued by the Respondent No. 3. By the said order, the Petitioner No. 1 who was working as Lineman Gr. I under the Board, alongwith one Anr. employees, was compulsorily retired from the Board's service on this attaining the age of 50 (fifty) years or completing more than 25 (twenty five) years of continuous service in the Board with effect from 1.3.97 in terms of the provision of Fundamental Rule 57(b) of the State Govt. of Meghalaya. This said impugned order may be extracted as under: Meghalaya State Electricity Board Board’s Secretariat 'Lum Jingshai' Short Round Road, Shillong-793001 No. PER.II/28/97/47 Dated the 19th April, 1997 Office Order Based on the recommendation of the Review Committee constituted vide Board's No. MeSEB/GA/213/75/Vol.II/61 dt. 6.10.89 adopting the Fundamental Rule 57(b) of the State Govt. of Meghalaya and in the interest of the Board, following employees are hereby compulsory retired from the Board service on their attaining the age of 50 (fifty) years or completing more than 25 (twenty five) years of continuous in the Board with effect from 1.5.97- In lieu of the statutory notice of three (3) months, they are entitled to three (3) months pay and allowances. SI. No. Name Designation Place of Posting 1. Shri Ram Palak Rai L/M Gr-I Deputy General Manager, Zone-I, GSES, MESEB, Shillong. 2. Shri S.N. Kalita Fitter Gr-II Executive Engineer, Umiam Maintenance Division, MeSEB, Umiam. (R.S. Rynjah) Deputy Secretary (Pers.) Memo No. Per. 11/28/97/47(a) Dated the 19th April, 1997. 3. The case of the Petitioner No. 1 is that he joined the service under the erstwhile Shillong Hydro Electric Co. Ltd. in the year 1969 and after taking over of the said company by the Board in the year 1977, he had since been working under the Board. 11/28/97/47(a) Dated the 19th April, 1997. 3. The case of the Petitioner No. 1 is that he joined the service under the erstwhile Shillong Hydro Electric Co. Ltd. in the year 1969 and after taking over of the said company by the Board in the year 1977, he had since been working under the Board. Initially he was working as Lineman Grade-II but on 25.6.93 he was promoted to the rank of Lineman, Grade-I. While he had been saving the Board in the said capacity, suddenly without any notice the impugned office order was passed compulsorily retiring the Petitioner No. 1 from his service. His sole grievance raised in this writ petition is that this impugned order was passed by way of punishment and without following the procedure prescribed by the Meghalaya State Electricity Board Employees (Discipline and Appeal) Regulations, 1996 (for short "the Regulation") which came into force with effect from 9.1.97 from the date of publication of the same in the Official Gazette of Meghalaya. As such, the impugned order of compulsory retirement was hit by arbitrariness, malafide and also the principle of natural justice and accordingly, the same is liable to be set aside and quashed. 4. Rebuting the contentions and submissions made in the writ petition, the Board submitted their counter stating inter alia that the Petitioner No. 1 was not a devoted workman and he was very much irregular in attendance, having the habit of remaining on unauthorised absence on duties without prior permission on various occasions. The Petitioner was found to be alcoholic and could not perform his duty satisfactorily for which the Petitioner was asked to show cause by communications dated 23.12.96 and 31.1.97 (Annexure-B and C to the counter respectively). Since the Petitioner failed to give any satisfactory explanation and also could not rectify himself in his behaviour, he was recommended for compulsory retirement with the intimation to him and accordingly as per decision of the Review Committee meeting held on 16.4.97 in the office chamber of the Chairman of the Board, the Petitioner No. 1 was compulsorily retired. The minutes of the Review Committee meeting as mentioned herein above has been annexed as Annexure F1 to the affidavit-in-opposition filed for and on behalf of the Board. The minutes of the Review Committee meeting as mentioned herein above has been annexed as Annexure F1 to the affidavit-in-opposition filed for and on behalf of the Board. The minutes of the Review Committee held on 16.4.97 in the office chamber of the Chairman, MeSEB may be reproduced as under: Minutes of the Review Committee meeting held on 16.4.97 in the Office Chamber of the Chairman, MeSEB, at 4 p.m. The following Members were present: 1. Shri V.S. Jafa, IAs - Chairman 2. Shri A.W.K. Langstieh - Member (Finance) 3. Shri K.P. Ray - Member (Technical) 4. Shri K.N. Kurnar, IAS - Secretary 5. Shri N.R. Chakravorty - Chief Engineer (MM) 6. Shri N.L. Agarwal - Chief Engineer (Rural) 7. Shri B.G. Kharkongor - Chief Engineer (GT) 8. Shri D.P. Bhattacharjee - Addl. Chief Engineer (C) 9. Shri J.C. Das - Chief Personal Officer A. Statement of 2 (two) Board's Employees viz. (1) Shri Ram Palak Rai. Lineman-1 and (2) Shri S.N. Kalita, Fitter Gr-II along with their ACRs for 5 (five) years were placed before the Review Committee for considering the issue of compulsory retirement under FR 57(b) of Meghalaya Fundamental Rules and Subsidiary Rules since adopted by the MeSEB vide office order No. MeSEB/GA/213/75/Vol.II/61 dated 6.10.89. The members of the Review Committee discussed in detail their unsatisfactory performance and decided to recommend their names for compulsory retirement. (V.S. Jafa) Chairman (A.W.K. Langstieh) Member (Finance) and Chief Accounts Officer (K.P. Ray) Member (Technical) (K.N. Kumar) Secretary (N.R. Chakravorty) Chief Engineer (MM) (N.L. Agrawal) Chief Engineer (R) (B.G. Kharkongor) Chief Engineer (GT) (D.P. Bhattacharjee) Addl. Chief Engineer (C) (J.C. Das) Chief Personnel Officer 5. Mr. Dutta, learned Sr. counsel appearing on behalf of the Petitioners has vehemently contended that the minutes of the Review Committee above mentioned glaringly goes to show that the Board adopted a short-cut method with the only object to get rid of the service of the Petitioner on being influenced by malafide and arbitrariness. Though it was mentioned that ACRs for 5 (five) years were considered but there was no indication of which years' ACRs were taken into consideration. More interestingly, the adverse remarks which influenced the mind of the Review Committee, had not been communicated to the Petitioner and as such, non-communication of the adverse remarks to the Petitioner itself was a clear violation of principle of natural justice. Mr. More interestingly, the adverse remarks which influenced the mind of the Review Committee, had not been communicated to the Petitioner and as such, non-communication of the adverse remarks to the Petitioner itself was a clear violation of principle of natural justice. Mr. Dutta also has submitted that for recommendation for compulsory retirement, the authority ought to have considered the entire service record of the Petitioner but in the instant case the same was not done. The Review Committee decision itself manifestly goes to show that only 5 years ACRs have been consulted and that also without naming the years. 5(a). On the other hand, supporting the impugned order of compulsory retirement of the Petitioner No. 1 Mr. Kynjing, learned Sr. counsel appearing on behalf of the Board, has forcefully argued that this was a simple and pure case of compulsory retirement without being stigmatic and punitive. The Petitioner was compulsorily retired only on the recommendation of the Review Committee, as noticed above, on completion of 50 (fifty) years of age and 25 (twenty five) years of service under the Board. A plain reading of the impugned order would go to show that no punishment was given to the Petitioner by asking him to go on compulsory retirement. The Board has taken this decision as per provision of Fundamental Rule 57(b) of the State Govt. of Meghalaya and as such it was not a punishment as prescribed under the regulation. 5(b). I have given thoughtful consideration to the pleadings filed on behalf of the rival parties and also perused the record so produced by Mr. Kynjing, learned Sr. counsel appearing for the Board. On close scrutiny of the same, it would appear that though Review Committee, in its meeting, mentioned that the ACRs of 5 years of the Petitioner No. 1 on being placed, were considered but from the perusal of the record it is found that only 3 (three) years ACRs were taken into consideration and that too, for the years 1994, 1995 and 1996. All these ACRs carried the remarks against the Petitioner as "alcoholic and irresponsible. He is not at all fit for the post. All these ACRs carried the remarks against the Petitioner as "alcoholic and irresponsible. He is not at all fit for the post. Recommended for compulsory retirement." But record does not reveal that such adverse remarks had ever been communicated to the Petitioner, save and except, the communication dated 23.12.96 and 31.1.97 as already mentioned by which explanation only was called for from the Petitioner No. 1 with a warning that unless be rectified his behaviour, his case would be forwarded to the higher authority for recommendation of compulsory retirement. 6. It is settled law that any adverse remarks entered in the ACR must be communicated to the delinquent with a view to providing an opportunity for improvement of his performance and for his rectification. That apart, law is also settled that before recommending for compulsory retirement, the authority must make a total evaluation of the entire service record of the employee whose case is going to be considered for compulsory retirement. In support of this legal position the Apex Court's decision reported in 1994 Supp (3) SCC 424 (S. Ramachandra Raju v. State of Orissa) may be referred to. In a recent case reported in AIR 2001 SC 1109 (State of Gujarat v. Umedbhai M. Patel) the Apex Court dealing with the question of compulsory retirement laid down as many as 8 definite principles guiding the law relating to compulsory retirement. In paragraph 11 of the said decision it was held as follows: 11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus: (i) Whenever the service 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 un-communicated entries in the confidential record can also be taken into consideration. (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 un-communicated 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 was 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. Taking into consideration the proposition of law laid down in the case of S. Ramchandra Raju and Umedbhai M. Patel (supra) and also upon hearing learned Counsel for the parties and on perusal of the materials available on record, this Court finds that the Petitioner No. 1 was not communicated about the adverse entries made in those ACRs relied on by the Review Committee which became the foundation for recommendation for compulsory retirement and it was not 5 (five) years ACRs but only 3 (three) years ACRs were taken into consideration. More importantly, the entire service record of the Petitioner No. 1 had not been taken into consideration to arrive at a decision asking the Petitioner to go on compulsory retirement which is contrary to the established principle of law. That being the position, this Court is of the considered view that the impugned compulsory retirement was passed by the authority most arbitrarily and in violation of the principle of natural justice and accordingly, this impugned order is hereby set aside and quashed. The Board Respondents are directed to reinstate the Petitioner No. 1 by giving him all the consequential service benefits. It is made clear that if the Petitioner No. 1 has already retired in the meantime on attaining the age of superannuation, he shall be entitled to all the retrial benefits treating him to be in regular service till his retirement. Needful compliance of this order shall be completed within two months from the date of receipt of this order. 8. In the result, the writ petition stands allowed. However, considering the facts and circumstances of the case no order is passed as to costs. 9. The records so produced be returned to Mr. K.S. Kynjing, learned Sr. standing counsel for the Board. Petition allowed.