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Rajasthan High Court · body

2007 DIGILAW 2412 (RAJ)

Laxmi Narayan v. Nathdwara Temple Board

2007-12-19

GOPAL KRISHAN VYAS

body2007
Honble VYAS, J.–Initially this petition was filed by late Laxmi Narayan in the year 1994 challenging the order dated 19.10.1994 (Annex. 3) passed by the respondents whereby petitioner Laxmi Narayan was compulsorily retired from service. During the pendency of the writ petition, the petitioner died and his legal heirs filed application under Order 22 Rule 3, CPC for substitution and taking them on record. This court vide order dated 23.1.2006 allowed the said application and legal representatives of the late petitioner were ordered to be taken on record. The amended cause title was also filed after taking on record the legal representatives of late petitioner Laxmi Narayan. (2). According to the facts averred in the writ petition, the petitioner was appointed as Lower Division Clerk 1.10.1962 in the pay-scale of Rs. 30-55. In the year 1980, he was promoted to the post of U.D.C.; and, thereafter, the petitioner was promoted and posted as A-Grade Bhandari in the year 1991. Petitioner late Laxmi Narayan pleaded in the writ petition that his work was satisfactory and, therefore, he was transferred from Nathdwara to different places viz., Porebandar (Gujarat), Madhya Pradesh, Mathura (U.P.) and Calcutta (W.B.) because of his integrity and faithfulness and in view of the fact that the work of Bhandari could only be entrusted to trusted persons because his duty is to keep valuable articles in his custody. (3). The case of the petitioner is that the respondent No. 1, all of a sudden, issued impugned order of compulsory retirement of the petitioner in accordance with Rule 244(2) of the Rajasthan Service Rules. Respondent No. 1 Nathdwara Temple Board is constituted under the Nathdwara Temple Act, 1959 (for short, "the Act" hereinafter) and thus it is statutory body amenable to Article 12 of the Constitution of India. The Nathdwara Temple Rules, 1973 are framed under the Act and vide Rule 69 application of the Rajasthan Service Rules, 1954 is provided in respect of the employees of the respondents and as such the terms and conditions contemplated by the rules are statutory in nature. (4). The Nathdwara Temple Rules, 1973 are framed under the Act and vide Rule 69 application of the Rajasthan Service Rules, 1954 is provided in respect of the employees of the respondents and as such the terms and conditions contemplated by the rules are statutory in nature. (4). According to the petitioner, while issuing the impugned order of compulsory retirement dated 19.10.1994, three months pay was also allowed to the petitioner, however, it is best known to the respondents why such harsh action was taken against him though he performed his duties with utmost devotion and the fact that there is no adverse entry against him. Petitioner late Laxmi Narayan contended in the writ petition that the order passed by the respondents is totally arbitrary and illegal and there is no foundation to stand in the eye of law. (5). In the writ petition, the notice was issued to the respondents and, in response thereto, the respondents filed their reply. It is stated in the reply that after considering the service record of the petitioner objectively and after recording objective satisfaction, the order impugned of compulsory retirement of the petitioner was passed according to Rule 244(2) of the RSR. It is contended in the reply that there were numerous complaints against the petitioner with regard to his performance and it is revealed that the petitioner has out-lived his utility in the office and he is no more an efficient servant. The petitioner has impaired his efficiency greatly and he was not discharging duties as per expectation from a person like him. Therefore, his retention in service was no more useful as he had become deadwood. It is, therefore, contended by the respondents that the order of compulsory retirement of the petitioner was rightly passed after recording objective satisfaction. (6). In the reply, it is also stated that the petitioner has not come with clean hands and he is guilty of concealing material facts and misguiding the Honble Court. In this regard, in para 10 of the reply, it is submitted by the respondents as follows: "That the petitioner was transferred from Mathura to Calcutta vide Order dated 15.9.1992. In the said order name of the petitioner figures at S.No. 4. A photostat copy of the order dated 15.9.1992 is submitted herewith and marked as Ex. R. 1. In this regard, in para 10 of the reply, it is submitted by the respondents as follows: "That the petitioner was transferred from Mathura to Calcutta vide Order dated 15.9.1992. In the said order name of the petitioner figures at S.No. 4. A photostat copy of the order dated 15.9.1992 is submitted herewith and marked as Ex. R. 1. That unfortunately the petitioner deliberately refused to carry out the lawful order of transfer which was made in view of the administrative exigency of the service. No servant can be permitted to challenge the lawfully passed order in this manner. However, the fact remains that petitioner not only failed to carryout the order of transfer but crossed the limits when he dictates the terms to his employer even for carrying out the orders of transfer. Since passing of the order of transfer the petitioner failed to join his duties, he was served with a notice dated 5.12.1992 and was given a chance to join his duties at Calcutta else action shall be taken against him. A copy of the notice dated 5th December, 1992 is submitted herewith and marked as Ex. R. 2. It is not less than surprising, rather disgusting that with reference to above-referred notice the petitioner dared to submit his explanation/reply/terms vide his communication dated 10/12/1992. It is not less than surprising that petitioner suggested that he may be suspended for 2 to 4 years and his Headquarter be kept at Nathdwara and he further dictated that if at all it is necessary to post him to Calcutta then the terms as contained in his application dated 3.1.1992 be complied with and then only he will join at Calcutta and finally he dictated that he is prepared to joint at Calcutta provided that the terms as contained in his application dated 3.1.1992 are complied with, followed and accepted to. An exact and correct copy of the reply dated 10.12.1992 is filed herewith and marked as Ex. R. 3. That at this stage it is also just and proper to make a reference of the application of the petitioner dated 3.1.1992 which has been referred by him in his reply dated 10.12.1992. An exact and correct copy of the reply dated 10.12.1992 is filed herewith and marked as Ex. R. 3. That at this stage it is also just and proper to make a reference of the application of the petitioner dated 3.1.1992 which has been referred by him in his reply dated 10.12.1992. The petitioner has dared to dictate his employer that he is prepared to function as Bhandari at Calcutta subject to two conditions namely that his son Narendra Singh be appointed as L.D.C. on permanent basis w.e.f. 21st Feb., 1991 and his another son Surendra Singh be appointed on muster roll basis @ Rs. 27/- per day and he further said that if these conditions are acceptable then only he is prepared to join at Calcutta. An exact and correct copy of the application dated 3.1.1992 is filed herewith and marked as Ex. R. 4. In these circumstances the petitioner was found guilty of dis-obeying and dis-regarding the lawfully passed orders of transfer. The petitioner was relieved on 9.11.1992 but he did not join at Calcutta. Thus he was found guilty of dis-obeying the directives. In these circumstances an attempt was made to persuade the petitioner to carry-out the order of transfer and therefore, he was served with a communication dated 4.1.1993 and was called upon to explain as to why he has not join. A photostat copy of the letter dated 4.1.1993 is submitted herewith and marked as Ex. R. 5. That the aforesaid letter was further followed by a telegram dated 7.1.1993. A photostat copy of the telegram dated 7.1.1993 is submitted herewith and marked as Ex. R. 6. That despite of all possible efforts the petitioner did not join at Calcutta. In these circumstances he was further served with a communication No. 622 dated 14/16.7.1993 and was suggested to take over the charge immediately and inform the office. A photostat copy of the communication No. 622 dated 14/16.7.1993 is submitted herewith and marked as Ex. R. 7. That the aforesaid communication Ex. R. 7 was replied by the petitioner vide his letter dated 24.7.1993. .................... ...................." In nutshell, in the reply it is stated that the petitioner failed to comply with the transfer order and dictated terms for appointment of his sons and further made prayer for placing him under suspension while keeping his headquarters at Nathdwara. That the aforesaid communication Ex. R. 7 was replied by the petitioner vide his letter dated 24.7.1993. .................... ...................." In nutshell, in the reply it is stated that the petitioner failed to comply with the transfer order and dictated terms for appointment of his sons and further made prayer for placing him under suspension while keeping his headquarters at Nathdwara. It is contended by the respondents that in these circumstances the petitioners case was considered objectively and though, in the facts and circumstances of the case, disciplinary action was warranted in the matter against the petitioner, but a lenient view was taken and the petitioner was given compulsory retirement. It is also replied that the petitioner was not physically fit and mentally he was imbalanced, therefore, his case was dealt with under Rule 244(2) of the RSR and impugned order was passed. (7). Learned counsel for the petitioner argued that the order of compulsory retirement is totally illegal and has no foundation to stand before the eye of law. It is true that a deadwood employee having doubtful integrity can be given compulsory retirement and it is for the employer to take such decision; but, such decision should not be based upon illegal terms and, so also, should not be arbitrary. It is contended that it is also required under the law that at the time of recording satisfaction the employer should consider the entire service record of the employee. According to facts it is obvious that four promotions were given to the petitioner since his appointment and lastly he was promoted in the year 1991. (8). It is further argued by learned counsel for the petitioner that the petitioners entire service record is unblemished and there was nothing adverse against him. The only dispute arose when he was transferred from Mathura to Calcutta. Admittedly, he was relieved in November 1992 and the impugned order was passed on 19.10.1994; meaning thereby, the reason for taking such action of retiring compulsorily lacks feet to stand in the eye of law. In this period, the petitioner was repeatedly making prayers for cancellation of the transfer order. Admittedly, he was relieved in November 1992 and the impugned order was passed on 19.10.1994; meaning thereby, the reason for taking such action of retiring compulsorily lacks feet to stand in the eye of law. In this period, the petitioner was repeatedly making prayers for cancellation of the transfer order. It is true that he requested the respondents to allow him to work at Nathdwara and, in the process, he also made prayer for suspension and for appointment of his sons; but, neither his prayer for placing him under suspension with headquarters at Nathdwara nor his requests for appointment of his son can be termed misconduct so as to warrant the action of retiring him compulsorily from service. It is vehemently argued on behalf of the petitioner that far from recording objective satisfaction, the respondents have not at all taken into consideration the services rendered by the petitioner until 1991, therefore, the entire action of the respondents is arbitrary and illegal. It is contended by learned counsel for the petitioner that in whole of the reply nothing has been said by the respondents to show any instance of disobedience by the petitioner before the year 1992. According to learned counsel for the petitioner the decision to retire the petitioner compulsorily was taken by the respondents because the petitioner continuously requested the respondents for cancellation of the transfer order, therefore, this fact itself is sufficient to arrive at the finding that the respondents had failed to consider the case of the petitioner objectively. The employee certainly can make any prayer to the employer by way of filing representation and that cannot be termed as misconduct to cast blemish upon the service career of the employee. It is vehemently contended by learned counsel for the petitioner that prior to the year 1992 the petitioner complied with each and every transfer order of the respondents and it is also evident from the facts and circumstances of the case that the petitioner was physically and mentally fit to serve to the utmost satisfaction of the respondents because the respondents have throughout persisted in sending the petitioner to Calcutta despite his repeated requests. In these circumstances, it is prayed on behalf of the petitioner that the impugned order is passed arbitrarily and illegally and the same, therefore, deserves to be quashed and set aside with all consequential benefits. (9). In these circumstances, it is prayed on behalf of the petitioner that the impugned order is passed arbitrarily and illegally and the same, therefore, deserves to be quashed and set aside with all consequential benefits. (9). On the contrary, it is contended by learned counsel for the respondents that the petitioner has completely disobeyed the order is passed by the answering respondents and rather he dictated his terms and conditions and gave threatening to the employer that only if they give appointment to his sons he will join at the transferred place. This action itself is sufficient to show the conduct of the petitioner. Likewise, while the petitioner was working in Calcutta he was to file FIR for loss/damage to the treasury but he did not care and, only upon directions issued by the respondents, he filed the FIR; meaning thereby, he completely ignored the directions issued by the respondents and failed to perform his duties before joining at Calcutta. It is vehemently contended that for the disobedience shown by the petitioner harsher disciplinary action was called for to be initiated against him but a lenient view was taken by the respondents and he was given compulsory retirement. (10). As per learned counsel for the respondents, the petitioner became inefficient and his efficiency was impaired rendering him no more useful for the Temple, therefore, in public interest he was given compulsory retirement. There is no right accrued to the petitioner to challenge the decision taken by the respondents after subjective satisfaction. As per learned counsel for the respondents a genuine view was taken of his overall conduct whereas he had turned a dead-wood and was disobeying the orders passed by the respondent authorities, therefore, it became necessary to take action against the petitioner under Rule 244(2) of the RSR. Learned counsel for the respondents placed heavy reliance upon the judgments of the apex Court in the cases of Nawal Singh vs. State of U.P. & Another, reported in (2003) 8 SCC 117 and Jugal Chandra Saikia vs. State of Assam & Another, reported in (2003) 4 SCC 59 . In the said judgments, as per learned counsel for the respondents, the decision of compulsorily retiring the employee taken by the employer on the basis of subjective satisfaction has been held good warranting no interference. (11). In the said judgments, as per learned counsel for the respondents, the decision of compulsorily retiring the employee taken by the employer on the basis of subjective satisfaction has been held good warranting no interference. (11). I have considered the rival submissions made by both the parties and also perused the judgments cited before the Court. (12). In this case, first of all, it is admitted position of the case that until the last promotion of the petitioner Laxmi Narayan in the year 1991 there was nothing adverse against the petitioner. For the first time, when he was transferred from Mathura to Calcutta vide order dated 15.9.1992 he is said to have refused to carry out the lawful order of transfer made upon administrative exigency of service. It is also admitted position of the case that the petitioner joined in the month of January 1993 at the transferred place; meaning thereby, in between 15.9.1992 to 4.1.1993, he disobeyed the order of transfer. It is further admitted position that the petitioner was relieved on 9.11.1992 to joint duties at Calcutta. According to the facts of the case, the controversy arose only when the petitioner did not carry out the transfer order from Mathura to Calcutta and made requests with certain conditions for carrying out the transfer order. But, ultimately he joined at the transferred place. It is also admitted that the terms submitted by the petitioner were not accepted by the respondent employer. (13). In my opinion, after serving since 1962 till the year 1992, for as many as 30 years, the employee might have made request in the event of his transfer to a far off place from his native place. It may be observed here that in the administrative management in an establishment the employer is required to adopt a filial attitude towards its employees. In whole of the reply, it is nowhere mentioned that prior to September 1992 the petitioner ever flouted any of the orders of the respondents; meaning thereby, on the basis of his service record the petitioner was promoted from time to time. It is only at the fag end of his service career that the petitioner appears to have been highly reluctant to join duties at the transferred place and, in that way, he made certain requests to the employer. It is only at the fag end of his service career that the petitioner appears to have been highly reluctant to join duties at the transferred place and, in that way, he made certain requests to the employer. Therefore, it need be observed here that the decision of the respondent employer for giving compulsory retirement to the petitioner was not taken after subjective satisfaction, Rather, an arbitrary view was taken by the respondents to get rid of the petitioner by way of compulsorily retiring him from service. Truly in whole of the service tenure no departmental enquiry is reported against the petitioner nor any adverse entry was made with reference to his performance appraisal. Thus there is nothing against the petitioner in the entire service record save for the events that shaped up in the year 1992 when the petitioner was transferred to Calcutta. Therefore, the contention of the respondents is devoid of force and the decision of the respondent employer lacks subjective satisfaction. More so, harsher action was taken by the respondents even while contending that the petitioner was physically not fit. (14). I have gone through the judgments of the Apex Court in the aforesaid reported cases. In the facts and circumstances of the present case, analogy of the proposition of law laid down by the Honble Supreme Court in the case of Jugal Chandra Saikia vs. State of Assam & Another (supra) cannot be drawn upon the facts and circumstances of the case on hand to support the decision of the respondents for compulsorily retiring the petitioner from service. It is indisputable legal position that the employer possession legitimate right to retire an employee compulsorily; but, such decision must be taken after subjective satisfaction in the matter for arriving at the conclusion of retiring compulsorily an employee. The decision is required to be based upon fair consideration and should not be arbitrary and unreasonable. In the case of Jugal Chandra Saikia (supra), it has been held by the Apex Court that if decision of compulsory retirement is in public interest and based upon subjective satisfaction of the competent authority, then, it should not be interfered by the Court. However, the Court can interfere if order is based on no evidence or is totally perverse. Thus the apex Court has not shut doors to the judicial scrutiny of such decision of the employer of compulsory retirement. (15). However, the Court can interfere if order is based on no evidence or is totally perverse. Thus the apex Court has not shut doors to the judicial scrutiny of such decision of the employer of compulsory retirement. (15). In the case of Nawal Singh, reported in (2003) 8 SCC 117 (supra), the Supreme Court has held that interference in the decision of compulsory retirement may not be called for when the formation of opinion is based upon repeated scrutiny of the service record and ultimately such decision is tested by the employer on the anvil of subjective satisfaction. Therefore, the employer is required to examine the entire service record and take decision of compulsory retirement in judicious manner. But, there should not be any arbitrariness or malafide behind the order of compulsory retirement. (16). In the present case, it was the duty of the employer to scrutinize the entire service record of the petitioner. But, as per the reply of the respondents, till the year 1992, the petitioners performance appaisal by the employer respondents enabled him to gain three promotions and since his appointment in the year 1962 admittedly until 1992 the petitioner never disobeyed the respondent authorities. The reason which is mentioned in the reply is obvious that the petitioner disobeyed the transfer order and he failed to perform his duty smoothly at Calcutta. In this regard, in my opinion, the said decision cannot be termed as genuine and reasonable and based on any adverse record of the petitioner. The method adopted by the respondents does not appear to be bonafide while seeking to get riddance of the petitioner whom until the year 1991 the respondents chose to grant promotions. Therefore, such decision cannot be said to be taken after subjective satisfaction or on the basis of entire service record. (17). It can be said that when a request was made by the petitioner to cancel the transfer order and make submission that of the order of transfer is not cancelled, his son may be accorded appointment. Such requests are not unusual and may be made by the employee to the employer. Therefore, it cannot be said that the petitioner dictated terms to the respondents for carrying out the transfer order. In such circumstances, no such harsh action can be taken against the employee. Such requests are not unusual and may be made by the employee to the employer. Therefore, it cannot be said that the petitioner dictated terms to the respondents for carrying out the transfer order. In such circumstances, no such harsh action can be taken against the employee. While I find myself in respectful agreement with the proposition laid down by the Honble Supreme Court in he above two cases, in my considered opinion, interference is warranted in the present case because the decision of the employer is not based upon cogent evidence and subjective satisfaction. The decision of compulsory retirement taken by the respondents suffers from material perversity and is arbitrary. Such decision is required to be quashed. (18). Consequently, this writ petition is allowed. Order impugned of compulsory retirement of petitioner late Laxmi Narayan is set aside and he is held entitled to all consequential benefits until the attainment of the age of superannuation. The said benefits are required to be paid to the legal heirs of the late petitioner who were brought on record in the writ petition after the death of petitioner late Laxmi Narayan. The respondents are, therefore, directed to pay all consequential benefits to the legal heirs of late Laxmi Narayan as a settuel to setting aside the order dated 19.10.1994 of compulsory retirement.