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2006 DIGILAW 68 (ALL)

CHANDAR PRASAD VERMA v. STATE OF UTTAR PRADESH

2006-01-06

RAKESH SHARMA

body2006
JUDGMENT Hon’ble Rakesh Sharma, J.—Heard Sri S.S.L. Srivastava, learned Counsel for the petitioner and the learned Standing Counsel appearing for the opposite parties. 2. Under challenge is an order of compulsory retirement passed against the petitioner on 11-8-2005 by the Additional Transport Commissioner (Administration), Lucknow. The petitioner has been compulsorily retired after working for about thirty and half years at the age of 51 years. 3. The learned Counsel for the petitioner has assailed the order on the ground that the opinion to retire the petitioner compulsorily has been formed only on the basis of a single adverse entry, the order of punishment passed on 20-9-2001. There was no other adverse material in the service record of the petitioner except this adverse remark for the year 2001-02. As per the learned Counsel for the petitioner his entire service record was clean and even after awarding of the punishment on 20-9-2001, he has earned excellent entries. The petitioner has placed some documents along with the writ petition to demonstrate that for the year 2001-02, he was rated as efficient worker. In the year 2004-05, he was given special remark and rated as an excellent worker. Similar assessment was made in respect of petitioner on 6-2-2005 and 28-7-2005. The petitioner was branded as an excellent worker during the period from 2001 to 2005, the years preceding the issuance to impugned order of compulsory retirement. 4. In view of the submissions made in the writ petition, the petitioner has laid stress that the order of compulsory retirement is wholly arbitrary and malafide. The total record of service of the petitioner was not taken into consideration objectively. There is no justification for compulsorily retiring the petitioner on the basis of a solitary adverse remark. The learned Counsel for the petitioner has placed reliance on the judgments as reported in 1985 (1) SCC 134 , Hans Raj v. State of Punjab and others and 1994 Supp. (3) SCC 424, S. Rama Chandra Raju v. State of Orissa and a Division Bench decision of this Court as reported in 2001 (2) UPLBEC 1079 , Phool Chandra Yadav v. State of U.P. and others in support of his submissions. 5. Sri S.S.L. Srivastava, learned Counsel for the petitioner has further submitted that the order is punitive as the matter relating to departmental inquiry was placed before the Screening Committee. 5. Sri S.S.L. Srivastava, learned Counsel for the petitioner has further submitted that the order is punitive as the matter relating to departmental inquiry was placed before the Screening Committee. The Screening Committee has not considered the other entries that the petitioner has earned all the increments, crossed E.B. and has also earned his promotion etc. on due dates. The petitioner has already been awarded minor penalty on 20-9-2001. He has already suffered for whatever done by him. The petitioner has represented against the order of punishment by submitting representation to the appropriate authority. Since the petitioner’s representation was pending, the order of punishment could not have been issued against the petitioner for retiring him compulsorily. 6. The learned Counsel for the petitioner has further contended that the order suffers from principle of double jeopardy. The petitioner was already punished for the alleged misconduct. The events cited in the order dated 20-9-2001, were relating to the year 1992 to 1997. The inquiry has resulted in awarding of punishment on 20-9-2001 and after about four years of passing of this punishment order, it was highly improper to dismiss or remove the petitioner from service in the garb of order of compulsory retirement. He has placed reliance on a judgment of this Court as reported in 1994 (12) LCD 639, Rajjan Lal Srivastava v. State of U.P. and others, in support of his submissions. 7. The learned Counsel for the petitioner has also placed reliance on the following judgment : 1. 1993 (2) UPLBEC 1049, Krishan Pal Sonkar v. State of U.P. and another. 2. 1995 (13) LCD 385, State of U.P. and another v. Mahesh Chandra Maheshwari. 3. 1996 (14) LCD 466, Chandrika Rai v. State of U.P. and others. 4. 1998(3) ESC 1813 (All), Shyam Sunder Lal Srivastava v. Registrar Hon. High Court of Judicature at Allahabad and others. 5. 2001(2) ESC 848 (All), Raj Kumar v. State of U.P. and another. 6. 2001 (19) LCD 317, Chandra Shekhar Singh v. State of U.P. and others. 7. 2001(3) ESC 1427 (All)(DB), Bhoop Narain Tiwari v. M/s. UPTRON India Limited Lucknow and others. 8. 2002(5) ESC 307 (All); Triloki Nath Maini v. State of U.P. and others. 8. The learned Standing Counsel has resisted the writ petition. He has submitted that there was existence of adverse material against the petitioner. 7. 2001(3) ESC 1427 (All)(DB), Bhoop Narain Tiwari v. M/s. UPTRON India Limited Lucknow and others. 8. 2002(5) ESC 307 (All); Triloki Nath Maini v. State of U.P. and others. 8. The learned Standing Counsel has resisted the writ petition. He has submitted that there was existence of adverse material against the petitioner. The petitioner was compulsorily retired on the recommendation of a duly constituted Screening Committee. This committee had considered the service record of the petitioner and had recommended his compulsory retirement. The charges were of serious nature which is evident from the contents of the order of punishment dated 20-9-2001. The petitioner’s two increments were stopped and he was censured for committing financial irregularities. The order cannot be said to be arbitrary or malafide in any manner, it has been passed in accordance with law. 9. I have considered the arguments of the learned Counsel for the parties and perused the record. 10. In paras 4 and 7 of the counter affidavit, the opposite parties have placed material on the basis of which the opinion was formed by the Screening Committee to retire the petitioner compulsorily. It has been indicated in Para 4 of the counter affidavit that the petitioner was found guilty for submitting incorrect reports to the authorities. His case was put up before the Screening Committee which also found the petitioner guilty of the charges. Thus, it is evident from the counter affidavit that there is no mention of other adverse material against the petitioner which was used by the Screening Committee or the appointing authority for retiring the petitioner on 11-8-2005. A perusal of the order dated 20-9-2001 reveals that it was an order of minor penalty awarded against the petitioner. The petitioner was censured for his misconduct. It was for the Government servant to have represented against this minor penalty. It appears that the petitioner had submitted a representation against this order of penalty passed on 20-9-2001. The opposite parties have denied submission of such representation. Thus, it is apparent from the record that only one adverse entry was solitary instance, order of punishment dated 20-9-2001 which has been relied upon by the Screening Committee for retiring the petitioner under Fundamental Rules 56 (C) as amended up-to-date contained in Financial Handbook Volume 2 to 4. The opposite parties have denied submission of such representation. Thus, it is apparent from the record that only one adverse entry was solitary instance, order of punishment dated 20-9-2001 which has been relied upon by the Screening Committee for retiring the petitioner under Fundamental Rules 56 (C) as amended up-to-date contained in Financial Handbook Volume 2 to 4. Thus the petitioner has admittedly been retired on the basis of solitary adverse remark recorded by the order dated 20-9-2001. Applying the law laid down by Hon. the Supreme Court of India as reported in the aforesaid judgments, I am of the opinion that the appointing authority has arbitrarily exercised its power. It has failed to take into account the total record of service of the petitioner and the matter was not objectively considered. The appointing authority or the Screening Committee ought to have taken into account the other annual entries, remarks placed on the service record. During the preceding four years i.e. from 2001 to 2005, the petitioner has earned excellent remark. In addition to this, his service record prior to issuance of the order of punishment dated 20-9-2001 has remained satisfactory. Nothing has been pleaded in the counter affidavit regarding other remarks, assessment of various authorities who must have recorded their views in the personal file and the service book. The order appears to be punitive also. 11. In the counter affidavit, it has been pleaded in Para 1 that the petitioner’s case was put before the Screening Committee which also found the petitioner guilty of the charges. The power under Fundamental Rules 56 (C) cannot be used to punish the Government servant. It is different altogether than the one which defined in CCA Rules and other relevant provisions under which the major and minor penalties are imposed upon the Government servants. Here in the present case the order of compulsory retirement has been passed is a major of punishment. The petitioner has already suffered for whatever he has done in the years 1992 to 1997 and after earning entries in 2001, he has improved himself. The order of compulsory retirement amounts to double jeopardy as has been laid down by this Court in a judgment reported in 1994 (12) LCD 639 (supra). 12. In view of above discussion, I hold that the order of compulsory retirement is wholly malafide and it is punitive also. 13. The order of compulsory retirement amounts to double jeopardy as has been laid down by this Court in a judgment reported in 1994 (12) LCD 639 (supra). 12. In view of above discussion, I hold that the order of compulsory retirement is wholly malafide and it is punitive also. 13. The writ petition is allowed. 14. A writ of certiorari is issued quashing the impugned order dated 11-8-2005 passed by the Additional Transport Commissioner U.P. Lucknow as contained in Annexure 1 to the writ petition. The petitioner shall be reinstated in service forthwith. Petition Allowed. ————