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Allahabad High Court · body

2005 DIGILAW 575 (ALL)

STATE OF UTTAR PRADESH v. D P GUPTA

2005-03-24

N.K.MEHROTRA, PRADEEP KANT

body2005
PRADEEP KANT, N. K. MEHROTRA, JJ. ( 1 ) THIS petition, by the State, has been filed challenging the judgment and order passed by the state Public Services Tribunal dated 31st March, 1994, by means of which the claim petition preferred by the Private respondent challenging his order of compulsory retirement dated 24. 1. 1990, has been allowed. The private respondent challenged the question of validity of the order of compulsory retirement dated 24. 1. 1990 and also claimed fixation of salary in the revised pay scale in the years 1972, 1979 and 1986 and for the payment of arrears as well as salary for the period 29. 2. 1972 to 27. 5. 1977 with bonus for certain years along with 18% interest per annum. ( 2 ) THE private respondent was recruited as Constable in the Police Force in the year 1956 and was confirmed as such on 18. 1. 1958. He was placed under suspension with effect from 29th may, 1972, which suspension continued till 27th May, 1977, when he was given adverse entry in the year 1977. The respondent was again placed under suspension with effect from 9. 11. 1981 and remained as such upto 7. 1. 1985 and action under Section 7 of the Police Act was also taken which resulted into reduction of scale of pay for three years. ( 3 ) ON 18. 7. 1989, the respondent proceeded on leave, but he failed to report for duty after expiry of the leave period and remained absent continuously. Under these circumstances, his case for compulsory retirement was considered by the Screening Committee, wherein he was found fit to be retired compulsorily. On the basis of recommendation of the Screening Committee and the material on record, the Senior Superintendent of Police, Allahabad, vide order dated 24. 1. 1990, retired the respondent compulsorily under fundamental Rule 56 Parts II to IV. ( 4 ) THE respondents plea before the Tribunal was that the order of compulsory retirement was passed by way of punishment on the basis of alleged misconduct of unauthorized absence from duty and therefore, the said order was a punitive order, which, has been passed in violation of principle of natural justice and in violation of Article 311 of the Constitution, was liable to be set aside. ( 5 ) THE State put in the contest, by filing written statement, asserting therein that the order of compulsory retirement was passed on overall assessment of service record and not by way of punishment nor the alleged misconduct was the foundation for passing the said order. In regard to the monitory claims, it was clarified that necessary directions were already issued for onward payment to the respondents. ( 6 ) THE Tribunal vide its order dated 26th June, 1992, dismissed the claim petition after holding that the order of compulsory retirement cannot be held to be punitive but it has been passed in public interest. Since the respondent was found a dead wood by the Screening Committee and there was no hope of any improvement in the respondent, as he had been away from his place of posting on one pretext or the other and that the record also reveals that the department did not find fit the respondent to be retained in service, as such no illegality can be attached to the order of compulsory retirement. As regards the monitory claim, the Tribunal took note that the respondents have already passed appropriate orders in this regard. ( 7 ) IT appears that after the dismissal of the claim petition the respondent filed a review petition on which the Tribunal on 3rd May, 1993, passed order staying the operation of the judgment and order dated 26. 6. 1992, passed by the Tribunal earlier. Thereafter the petitioner filed rejoinder-affidavit on 18. 5. 1993 denying the allegation made in the counter-affidavit. ( 8 ) THE Tribunal reconsidered the whole issue and after hearing the claim petition this time, allowed the same after holding that the order of compulsory retirement was passed by way of punishment because the respondent remained unauthorizedly absent. ( 9 ) LEARNED counsel for the State has urged that firstly ; there was no occasion for the Tribunal to entertain the review petition whereas the Tribunal has decided the controversy finally vide its order dated 26th June, 1992, on merits and secondly, even if, no rejoinder-affidavit was filed, originally, that would not be a ground for entertaining the review petition. ( 10 ) THE findings recorded by the Tribunal in the earlier judgment could not have been upset or set aside or overruled by the Tribunal itself in the subsequent judgment unless the earlier findings were to be upset on such ground as may be available to a review applicant on the principles of Order XLVII, Rule 1 of the Code of Civil Procedure. It is also indicated by the state that the respondent did not choose to file any rejoinder-affidavit to the written statement filed by the State and allowed the claim petition to be decided earlier but later on he filed a rejoinder-affidavit also but this would not change the complexion of the case at all. ( 11 ) WE have gone through the record and we find that after full-fledged contest the Tribunal had rejected the claim of the respondent after holding that the order of compulsory retirement was passed in public interest and that it was not issued by way of punishment. This finding was appropriately recorded on consideration of plea of the State that the material which was placed before the Screening Committee was sufficient to conclude that the respondent has become a dead wood and there was no chance of his improvement. This finding based on appreciation of evidence and material on record, could not have been set aside by entertaining the review petition. ( 12 ) FOR the admissibility of the review petition it is necessary and essential that a case for review of the judgment and order should be made out. under the provisions of the Order XLVII, Rule 1 of the Code of Civil Procedure. In our opinion no such plea as was taken or existed so as to give jurisdiction to the Tribunal to recall/review the earlier order. ( 13 ) IN review petition the Tribunal could not have re-addressed the evidence on record nor could have recorded findings on its own assumption afresh. In view of the findings recorded earlier and particularly when the member who heard the review petition was another person than the member who had passed the earlier order. Tribunal exceeded his jurisdiction in entertaining and allowing the claim petition. In view of the findings recorded earlier and particularly when the member who heard the review petition was another person than the member who had passed the earlier order. Tribunal exceeded his jurisdiction in entertaining and allowing the claim petition. In case the respondent was aggrieved by the finding recorded by the tribunal in the earlier judgment dated 26th June, 1992, it was open for him to challenge the same in appropriate proceedings by approaching the Higher Court but the Tribunal could not have entertained the review petition nor could have allowed nor could have given altogether a different findings on the basis of the same material which made the foundation of the earlier order. The Apex Court in the case of Union of India v. Tarit Ranjan Das, 2004 SCC (L and S) 160, observed as under : "the Tribunal passed the impugned order by reviewing the earlier order. A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reasons contained therein whereby the original application was rejected. The scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh order and rehearing of the matter to facilitate a change of opinion on merits. The tribunal seems to have transgressed its jurisdiction in dealing with the review petition as if it was hearing an original application. This aspect has also not been noticed by the High Court". ( 14 ) EVEN otherwise we have gone through the reasoning given by the Tribunal for holding the impugned order of compulsory retirement as punitive. We find that the view taken by the tribunal is palpably erroneous and cannot be sustained. The respondents record of service did establish that there were several adverse entries against him. He was placed under suspension twice. He was punished in proceedings under Section 7 of the Police Act by reducing him in the pay scale for three years and that he proceeded on leave on 28. 2. 1972 and thereafter did not turn up after expiry of the leave period. His continuous absence from duty showed his un-improving attitude towards service and his casual and negligent response to the disciplined force. 2. 1972 and thereafter did not turn up after expiry of the leave period. His continuous absence from duty showed his un-improving attitude towards service and his casual and negligent response to the disciplined force. ( 15 ) THE Tribunal erred in holding that since the respondent was continuously absented himself from duty, therefore, he has been retired on the basis of unauthorized absence which constitute misconduct, and therefore, in absence of opportunity being given, the order of compulsory retirement was bad. In fact the entire service record was seen by the Screening Committee in which the Senior Superintendent of Police, Allahabad as Chairman, Superintendent of Police, rural Circle Officer, Police and Circle Officer, City III, were members, they scrutinized the character roll of the person who was considered for compulsorily retirement with a uniform policy. The Committee considered the cases of various other persons. Overall assessment of the service record indicates that there was sufficient material for the Screening Committee to recommend that the respondent was a dead wood and had not improved himself and there was no chance of his improving. Such an assessment was made on the basis of record, which cannot be faulted with. The assessment so made was based on material and therefore, there was no need for reassessment being made by the Tribunal. ( 16 ) THE writ petition was filed and an interim order was passed on 10. 7. 1995, staying the operation of the order dated 31st March, 1994. passed by the Tribunal till further orders. ( 17 ) WE would like to observe that the review petition does not allow the applicant to reargue or re-agitate the issue on which the findings have been recorded and judgment has been delivered. Review does not give an opportunity to reargue the matter nor jurisdiction to the Tribunal to re-appreciate the evidence, nor it can be a ground for review. ( 18 ) THUS, we find that on both the counts that the Tribunal could not have reviewed the earlier order dated 26th June, 1992, as none of the conditions as prescribed under Order XLVII, Rule 1, c. P. C. were available and also on the ground that the view taken by the Tribunal with respect to the service record of the respondent, is perverse and cannot be sustained and therefore, the order passed by the Tribunal dated. 31st March, 1994, cannot be sustained. 31st March, 1994, cannot be sustained. ( 19 ) FOR the reasons stated above the writ petition is liable to be allowed which is hereby allowed. The judgment and order passed by the Tribunal dated 31st March, 1994, is hereby quashed. The order of compulsory retirement dated 24. 1. 1990 is upheld. ( 20 ) WE further clarified that if any amount towards salary or other dues if any, has been found to be admissible and payable to the respondent and has not been paid the same shall be paid expeditiously. We further direct that the post retiral dues including the pension, if not have already been paid, the same shall also be paid to the respondent without any further delay within a reasonable period from the date of receipt of the certified copy of the order. ( 21 ) THE writ petition is allowed. No order as to costs. . .