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Madhya Pradesh High Court · body

2008 DIGILAW 773 (MP)

SURESH CHAND PANDYA v. STATE OF M P

2008-06-26

R.S.JHA

body2008
Judgment ( 1. ) THE petitioner, who was at the relevant time working as Superintending Engineer in the Water Resources Department in the State of madhya Pradesh, has filed this petition being aggrieved by order dated 6-1-2000 whereby the petitioner has been compulsorily retired from Government service under sub rule (3) of Rule 56 of M. P. Fundamental Rules (hereinafter referred to as the rules) after giving him three months pay in lieu of notice. ( 2. ) THE petitioner submits that he was initially appointed as Assistant Engineer in the year 1970 in the Water Resources Department and was thereafter promoted as Executive Engineer in the year 1978. Vide order dated 13-10-1997 the petitioner was promoted on the post of Superintending Engineer with retrospective effect from 23-12-1993. Thereafter the petitioners case was scrutinized under F. R. 56 (3)of M. P. Fundamental Rules and the impugned order dated 6-1-2000 was issued compulsorily retiring the petitioner from Government service. ( 3. ) THE contention of the learned counsel for the petitioner is that the petitioners service record was throughout good which is evident from the fact that he was awarded three promotions in the year 1970, 1978 and 1997 and, therefore, the impugned order of compulsory retirement has been issued with an oblique motive as certain juniors have been retained to give them benefit by removing the petitioner from service who was an impediment to their interest. It is further submitted that the impugned order is not in public interest as envisaged by F. R. 56 and is, therefore, arbitrary, illegal and mala fide as other persons similarly situated as the petitioner have been retained. The petitioner further submits that though departmental enquiries were initiated against the petitioner in the year 1999 in respect of alleged misconducts relating to the period prior to 1997, the said departmental enquiries could not be made the basis for issuing the impugned order of compulsory retirement as the petitioner was subsequently promoted in the year 1997 and as the pendency of the departmental enquiries could not have been made the basis for issuance of the impugned order without awaiting their conclusion. The learned counsel for the petitioner, during arguments, also stated that in the first departmental enquiry initiated against the petitioner, he was exonerated on 18-6-1991, in the second departmental enquiry initiated against the petitioner, he was exonerated on 17-9-2003 and the third departmental enquiry, wherein penalty of reduction in pension by 50% was imposed upon the petitioner, has been quashed vide order dated 7-7-2006 passed by Indore Bench of this Court in W. P. No. 877/2006 (s ). ( 4. ) THE respondent, per contra, submits that the impugned order of compulsory retirement has been issued after due and proper screening of the petitioners case by a screening committee and after duly taking into consideration the entire service record of the petitioner as well as the pendency of three departmental proceedings against the petitioner in respect of which the respondents have filed documents annexure R-9 to R-11 along with the return. It is submitted by the learned counsel for the respondent that the screening committed which is an expert body has applied its mind by scrutinizing the entire service record of the petitioner and has thereafter recommended the case of the petitioner for compulsory retirement which cannot be made the subject-matter of judicial review before this Court in the present petition. It is submitted that even otherwise, in view of the fact that three departmental enquiries were pending against the petitioner, the continuance of the petitioner in Government service was not in public interest and, therefore, no fault can be found with the impugned order of compulsory retirement of the petitioner. ( 5. ) THE proceedings of the screening committee as well as the service record of the petitioner have been produced before this Court and have been scrutinized by the learned counsel appearing for the parties as well as this Court. From a perusal of the service record as well as the record of the screening committed it is apparent that the service record of the petitioner was not deteriorating or bad. From a perusal of the service record as well as the record of the screening committed it is apparent that the service record of the petitioner was not deteriorating or bad. Details of the service record of the petitioner are as under :- It is also an undisputed fact that the petitioner was awarded promotion in the year 1978 and then again in the year 1997 with effect from 1993 and, therefore, in view of the law as laid down by Supreme Court in the case of Baikuntha Nath das and another v. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299 any adverse remarks in the service record of a Government servant prior to the period of his promotion loose their sting, more so, in cases where the promotion is made on the basis of selection and merit and, therefore, the service record of the petitioner prior to the period 1993 has to be taken to be good for two reasons; firstly, that there are no adverse remarks awarded to the petitioner prior to the period 1993 and secondly, as the petitioner was granted promotion on the basis of the aforesaid record on the post of Superintending Engineer. ( 6. ) IT is also apparent from a perusal of the gradings awarded to the petitioner subsequent to the year 1993 as enumerated in the preceding paragraph that the service record of the petitioner even subsequent to 1993 was good as the grading awarded to him during that period was mostly very good or good and, therefore, under no circumstances can a prudent man come to the conclusion that the service record of the petitioner warranted his compulsory retirement from service in public interest. ( 7. ) I may hasten to add that I have recorded the aforesaid conclusion on the scrutiny of the service record of the petitioner on applying the law as settled by the Supreme Court in the cases of Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another, 1992 2 SCC 299 wherein, in paragraph 34 the following guidelines have been laid down : "34. The following principles emerge from the above discussion : (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. The following principles emerge from the above discussion : (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. 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. That circumstance by itself cannot be a basis for interference. " and in the case of State of Gujrat v. Umedbhai M. Patel, 2001 3 SCC 314 , wherein, in paragraph 11 the following guidelines have been laid down by the supreme Court :- "11. The law relating to compulsory retirement has now crystalised into definite principle, which could be broadly summarised thus :- (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. The law relating to compulsory retirement has now crystalised into definite principle, which could be broadly summarised thus :- (i) Whenever the services 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 uncommunicated 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 m the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. " ( 8. ) IN the aforesaid facts and circumstances, the only question that remains to be decided in the present petition is as to whether in spite of a good service record, the pendency of three departmental enquiries against the petitioner would justify his compulsory retirement and that such a compulsory retirement would be in public interest. ( 9. ) IN the present case, the service record of the petitioner does not indicate that his performance is deteriorating or that he has become dead wood for the department. From a perusal of the record it is also clear that the petitioners integrity is beyond reproach and that his performance has been consistently very good and good. It is also clear from a perusal of the record that though the departmental proceedings were pending against the petitioner at the relevant time, they have not reflected upon the petitioners performance as the reporting and reviewing authorities have given him very good and good gradings in the relevant years. It is also clear from a perusal of the record that though the departmental proceedings were pending against the petitioner at the relevant time, they have not reflected upon the petitioners performance as the reporting and reviewing authorities have given him very good and good gradings in the relevant years. In such circumstances, to compulsorily retire the petitioner on the basis of the pendency of departmental proceedings is per se unreasonable as there is nothing in the service record of the petitioner to indicate that his continuance in service is not in public interest only on basis of the issuance of charge sheets and pendency of departmental proceedings as there was full chance of his being exonerated and in fact, been exonerated, which fact has not been controverted by the respondents. The proper course to be adopted by the respondents in the present case would have been to either drop his case from consideration or defer his case for consideration till the departmental proceedings were ultimately concluded. In the aforesaid circumstances, the action of the respondent-authorities is unreasonable and contrary to law. ( 10. ) IT is settled law that compulsory retirement of a Government servant on the basis of scrutiny of his entire service record is not a punishment if it is not based on any particular allegation or imputation of charges against the petitioner but is based on a re-evaluation of his entire service record as it does not deprive him of his pensionary and other retiral benefits. For the aforesaid proposition I profitably rely upon the Constitution Bench judgment of the Supreme Court in the case of shyamlal v. State of Uttar Pradesh and another, AIR 1954 SC 369 wherein it has been held that :- "there is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty-five years service and that it is in the public interest to dispense with his further services. The two requirements for compulsory retirement are that the officer has completed twenty-five years service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465a makes it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of that power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity. ( 11. ) THE aforesaid principles have also been reiterated by of the Supreme Court in the cases of Dalip Singh v. State of Punjab, AIR 1960 SC 1305 and another constitution Bench judgment in the case of The State of Uttar Pradesh v. Madan mohan Nagar, AIR 1967 SC 1260 . A perusal of the aforesaid judgments also makes it abundantly clear that if the order of compulsory retirement is passed solely upon imputation of charges and not upon the scrutiny or analysis of the entire service record of the Government servant, the order would be more in the nature of a punishment rather than based on any criteria of public interest. ( 12. ) IN the case of State of U. P. and another v. Abhai Kishore Masta, 1995 1 SCC 336 it has been held that where it is found that the main reason for compulsorily retiring the employee is the pendency of the disciplinary proceeding or the leveling of charges, the action would be penal in nature and, therefore, unsustainable. It has also been held that the pendency of the departmental proceedings can be one of the factors on the basis of which a person can be compulsorily retired in cases where the service record of the Government servant is also found to be bad or deteriorating in the concluding years and such other factors evident from the service record of the petitioner which indicate that his continuance in Government service could not be in public interest. The Supreme court has, however, categorically stated that compulsory retirement based solely on the basis of the pendency of departmental proceedings or without conclusion of the enquiry in which imputation of charges have been made against the government servant would amount to an attempt on the part of the authorities to adopt the easier course of retiring the employee under the concerned rules relating to the compulsory retirement with a view to circumvent the departmental proceedings pending against him and in such circumstances would be penal in nature and would not be in public interest. The relevant parts of the judgment of the Supreme Court in the case of Abhay Kishore Masta (supra) are in the following terms :- "7. So far as the order of compulsory retirement under Fundamental rule 56 (j) is concerned, we are of the opinion that the principle enunciated by the High Court in J. N. Bajpai v. State of U. P. , 1 1990 8 Lucknow Civil Decisions 149 and followed in the judgment under appeal is unsustainable in law. It cannot be said as a matter of law nor can it be stated as an invariable rule, that any and every order of compulsory retirement made under Fundamental Rule 56 (j) (or other provision corresponding thereto) during the pendency of disciplinary proceedings is necessarily penal. It may be or it may not be. It is a matter to be decided on a verification of the relevant record or the material on which the order is based. 8. In the State of U. P. v. Madan Mohan Nagar, AIR 1967 SC 1260 it has been held by a Constitution Bench that the test to be applied in such matters is "does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsorily ?" It was observed that if the charge or imputation against the officer is made the condition of the exercise of the power it must be held to be by way of punishment otherwise not. In other words if it is found that the authority has adopted an easier course of retiring the employee under Rule 56 (j) instead of proceeding with and concluding the enquiry or where it is found that the main reason for compulsorily retiring the employee is the pendency of the disciplinary proceeding or the leveling of the charges, as the case may be. it would be a case for holding it to be penal. But there may also be a case where the order of compulsory retirement is not really or, mainly based upon the charges or the pendency of disciplinary enquiry As a matter of fact, in many cases, it may happen that the authority competent to retire compulsorily under Rule 56 (j) and authority competent to impose the punishment in the disciplinary enquiry are different. It may also be that the charges communicated or the pendency of the disciplinary enquiry is only one of the several circumstances taken into consideration. In such cases it cannot be said that merely because the order of compulsory retirement is made after the charges are communicated or during the pendency of disciplinary enquiry, it is penal in nature. "9. It is true that merely because the order of compulsory retirement is couched in. innocuous language without making imputations against the government servant, the court need not conclude that it is not penal in nature. In appropriate cases the court can lift the veil to find out whether, in truth, the order is penal in nature vide Ram Ekbal Sharma v. State of Bihar, 1990 3 SCC 504 . " The same view has also been taken by a Division Bench judgment of this Court in the case of State of M. P. v. Laxmi Chand Awadhiya, 2002 (4) MPLJ 343 . ( 13. " The same view has also been taken by a Division Bench judgment of this Court in the case of State of M. P. v. Laxmi Chand Awadhiya, 2002 (4) MPLJ 343 . ( 13. ) IN the present case, as the impugned order of compulsory retirement dated 6-1-2000 has been sought to be justified only on the ground of pendency of three disciplinary proceedings against the petitioner as the petitioners service record is otherwise very good as is evident from the gradings awarded to him during his service period, I have no hesitation in concluding that the impugned order of compulsory retirement deserves to be quashed in view of the law laid down by the supreme Court in the aforementioned judgments as well as the fact that it is apparently not in public interest as envisaged by F. R. 56 and is also not based on proper appreciation of the service record of the petitioner which is apparently very good. The impugned order is, therefore, perverse, not in public interest and beyond the powers conferred on the authority under F. R. 56 (3) of the Rules. ( 14. ) IN the light of the above, the petition filed by the petitioner deserves to be and is hereby allowed. The impugned order of compulsory retirement dated 6-1-2000 is hereby quashed. ( 15. ) IN the present case as is seen from a perusal of the record, the petitioner was initially compulsorily retired without proper application of mind and, therefore, the order was quashed and the matter was remitted back for re-examination of his case and all other similar cases by a review screening committee. Thereafter, the respondents have again compulsorily retired the petitioner by the impugned order without applying their mind to the service record of the petitioner which on the face of it, does not warrant his compulsory retirement as has been held by me in the preceding paragraph and, therefore, the petitioner has been prevented from performing his duties and kept out of service for no fault of his and as a result of which he has been deprived of his legitimate salary and other benefits which he would have enjoyed had the impugned order not been passed repeatedly by the respondent-authorities without applying their mind in spite of orders by the Court. ( 16. ( 16. ) IN view of the aforesaid peculiar circumstances existing in the present case, i am of the considered view that as a consequence of quashing of the impugned order of compulsory retirement the petitioner would be deemed to have been in service till the age of his superannuation and would also be entitled to and is hereby granted full back wages for the period during which he was kept out of service, revised pension and all other consequential benefits. ( 17. ) THE petition is accordingly allowed to the extent indicated above. In the facts and circumstances of the case, there shall be no order as to costs. Petition allowed.