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Madhya Pradesh High Court · body

2008 DIGILAW 814 (MP)

S. C. Tantia v. State of Madhya Pradesh

2008-07-03

R.S.JHA

body2008
Judgment ( 1. ) THE petitioner, being aggrieved by order dated 6-1-2000, by which he has been compulsorily retired from service while working as a Superintending Engineer in the Water Resources department has filed this petition before this Court. ( 2. ) THE facts of the case, in brief, leading to the filing of the present petition are that the petitioner was initially appointed as an Assistant Engineer and was thereafter promoted as executive Engineer on 12-6-1979. He was again promoted on 9-7-1993 as a Superintending Engineer. On 22-12-1997, after a lokayukta enquiry, a charge sheet was filed against the petitioner and several others before the competent Criminal court pursuant to which he was suspended vide order dated 311-1998. Subsequently, a departmental enquiry was initiated against the petitioner on 9-8-1999 in respect of certain charges relating alleged lapses in the performance of his duties. While the aforesaid criminal case as well as the departmental enquiry was pending, the petitioners case was considered by a screening Committee constituted for the purposes of scrutinizing all case for compulsory retirement under F. R. 56 (3)of M. P. Fundamental Rules and en masse orders of compulsory retirement were issued which were challenged before the m. P. State Administrative Tribunal by several persons successfully and the cases were directed to be rescrutinised by a review Screening Committee. The petitioners case was also rescrutinised and by the impugned order dated 6-1-2000 the petitioner was compulsorily retired from service. ( 3. ) THE case of the petitioner before this Court is that the petitioner had an excellent service record and was never served with any adverse entries. He has further submitted that the allegation on the basis of which the charge sheet was filed against him before the Criminal Court was apparently misconceived as the petitioner was not responsible for making any payments or deductions from the amounts to be paid to contractors which was in fact the duty of his subordinates. It is further submitted that apart from the charge sheet filed against the petitioner before the Criminal Court, a departmental enquiry was also initiated against the petitioner for the purpose of depriving him of his right to consideration for further promotion to the post of Chief Engineer for which he had become due in the year 1998. It is further submitted that apart from the charge sheet filed against the petitioner before the Criminal Court, a departmental enquiry was also initiated against the petitioner for the purpose of depriving him of his right to consideration for further promotion to the post of Chief Engineer for which he had become due in the year 1998. On instructions from the petitioner, the learned counsel for the petitioner submitted that during pendency of the present petition the petitioner has been exonerated in the departmental enquiry vide order dated 12-42002 and has been acquitted by the Criminal Court vide judgment dated 25-3-2006. In the circumstances, it is submitted by the learned counsel for the petitioner that the impugned order of compulsory retirement was not based on any material on record and clearly indicated total non-application of mind on the part of the Screening Committee as well as the respondent-authorities and, therefore, as the order of compulsory retirement of the petitioner, not being in public interest, was beyond the scope of F. R. 56 (3) and deserves to be set aside. ( 4. ) PER contra, the learned counsel appearing for the State/ respondent, submits that the State Government had constituted a Screening Committee to scrutinize the cases of all engineers working in the Water Resources Department for the purposes of compulsory retirements and the Screening Committee had laid down certain bench marks for the purposes of weeding out dead wood as well as corrupt officers from the department. It is submitted that the Screening Committee, on scrutinizing the case of the petitioner and taking into consideration the fact that departmental proceedings and a criminal case were pending against the petitioner, came to the conclusion that the petitioner was not fit to be retained in service and that his compulsory retirement from service was in public interest. In the circumstances, it is submitted that no fault can be found with the impugned order dated 6-1-2000 compulsorily retiring the petitioner and the petition being misconceived deserves to be dismissed. ( 5. ) I have heard learned counsel for the parties at length. The proceedings of the Review Screening Committee as well as the service record of the petitioner was produced before the Court by the learned Government Advocate during hearing which has been minutely scrutinized by this Court as well as the learned counsels appearing for the parties. ( 5. ) I have heard learned counsel for the parties at length. The proceedings of the Review Screening Committee as well as the service record of the petitioner was produced before the Court by the learned Government Advocate during hearing which has been minutely scrutinized by this Court as well as the learned counsels appearing for the parties. From a perusal of the screening Committee Minutes, which summarized the service record of the petitioner and is reproduced herein, it is apparent that the petitioner had been awarded excellent grades and that his service record up to 1997-98 is very good : confidential Valuation Sheet of last 15 years of Supdt. Engineers of Water Resources Department It is also apparent from a perusal of the minutes of the screening Committee that the petitioners case was recommended for compulsory retirement not on the basis of a scrutiny of his service record, which was very good but only on the basis of the pendency of the departmental enquiry and the criminal case against him. ( 6. ) IN view of the aforesaid undisputed facts, the only question that remains for adjudication is as to whether the petitioner could have been compulsorily retired from service only in view of the pendency of a departmental enquiry and a criminal case against him and whether pendency of departmental enquiry and criminal case against an employee would justify his compulsory retirement in public interest or would render him dead wood for the purposes of government service. ( 7. ) THE law relating to compulsory retirement which is based simply on the basis of a scrutiny of the service record and which is well settled is that compulsory retirement is not a punishment as it does not result in any adverse consequences and the petitioner is entitled to and is given pension and all other retirement benefits as has been held by the Supreme Court in the cases of Shyamlal v. State of Uttar Pradesh and another, AIR 1954 SC 369 , Dalip Singh v. State of Punjab, air 1960 SC 1305 and The State of Uttar Pradesh v. Madan mohan Nagar, AIR 1967 SC 1260 . The parameters and guidelines on the basis of which such cases have to be scrutinized and adjudged have also been laid down by the supreme Court in paragraph 34 in the case of Baikuntha Nath das and another v. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299 and in paragraph 11 in the case of State of Gujrat v. Umedbhai M. Patel, (2001) 3 SCC 314 . It is also a settled law that compulsory retirement is resorted to only for the purposes of removing officers who have out lived their utility, have become dead wood or their continuance in service is not in public interest and, therefore, the authority while exercising its jurisdiction to compulsory retire an employee must carefully scrutinize his entire service record and must thereafter record a conclusion on that basis. In other words, the record of the employee must indicate that his performance was deteriorating with the passage of time or that his continuance in service was not in public interest. ( 8. ) IN the present case, from a perusal of the record of the petitioner it is evident that the petitioner has been awarded very good and excellent grades and that his service record was very good. It is also apparent that there were no entries in his service record relating to his integrity and, therefore, prima facie, the impugned order of compulsory retirement finds no support from the service record of the petitioner. ( 9. ) THE question as to whether an employee could be compulsorily retired only on the basis of the fact that the departmental proceedings were pending against him or in a case where criminal proceedings were pending against him came up for consideration before this Court in the cases of Shyamlal v. State of Uttar Pradesh and another, AIR, 1954 SC 309, State of U. P. and another v. Abhai Kishore Masta (1995) 1 SCC 336 and State of Gujrat and another v. Suryakant Chunnilal shah, (1999) 1 SCC 529 . In the case of Abhai Kishore Masta (supra) the Supreme Court quashed orders of compulsory retirement passed only on account of disciplinary proceedings and held in paragraphs 7 and 8 as follows : 7. In the case of Abhai Kishore Masta (supra) the Supreme Court quashed orders of compulsory retirement passed only on account of disciplinary proceedings and held in paragraphs 7 and 8 as follows : 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 ka 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 any 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. ( 10. ) AS is apparent from a perusal of the aforesaid judgments of the Supreme Court, the mere and sole fact of pendency of a departmental proceeding against an employee cannot be made a basis of issuance of an order of compulsory retirement as that would in substance amount to imposing a penalty on the petitioner and would also be construed as an attempt on the part of the authorities to circumvent the due procedure prescribed by the Rules for holding a departmental enquiry. ( 11. ) IN the case of State of Gujrat and another v. Suryakant Chunnilal Shah, (1999) 1 SCC 529 , the Supreme court set aside an order of compulsory retirement which was based merely on the fact that two criminal cases were pending against the employee though his service record was good as there was no mention about his doubtful integrity in his service record in spite of the pendency of the criminal cases and while doing so, held as under : 27. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a government servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee. 28. There being no material before the review Committee, inasmuch as there were no adverse remarked in the character roll entries, the integrity was not doubted at any time, the character roll entries subsequent to the respondents promotion to the post of Assistant Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the cased, was punitive having been passed for the collateral purpose of his immediate removal, rather than in public interest. The Division Bench, in our opinion, was justified in setting aside the order passed by the Single Judge and directing reinstatement of the respondent. ( 12. ) FROM a perusal of the aforesaid judgments of the supreme Court, it is clear that in cases where the service record of an employee is good but he is compulsorily retired only on account of pendency of departmental proceedings and criminal cases against him, the order of compulsory retirement would not be an innocuous order in public interest but would in substance acquire the character of being a punitive order passed for collateral purposes with a view to immediately remove the employee by circumventing the procedure prescribed by law. The same view has 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 wherein this Court quashed the order of compulsory retirement which was passed only on the basis of pendency of departmental enquiries and criminal proceedings through the service record of the employee was good. ( 13. ( 13. ) IN the present case as the service record of the petitioner is very good and he has been compulsorily retired only on account of pendency of a departmental enquiry and a criminal case against him which, even otherwise, have undisputedly ended in his exoneration and acquittal, respectively, during the pendency of the present petition, the impugned order of compulsory retirement, not being justified on the basis of the service record, amounts to perverse and illegal exercise of power under F. R. 56 (3) and is punitive and, therefore, the impugned order dated 6-1-2000 deserves to be and is hereby quashed in view of the law laid down by the Supreme Court in the aforementioned judgments. ( 14. ) 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. ( 15. ) 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. ( 16. ) WITH the aforesaid observation the petition filed by the petitioner stands allowed. The impugned order of compulsory retirement dated 6-1-2000 is hereby quashed. ( 16. ) WITH the aforesaid observation the petition filed by the petitioner stands allowed. The impugned order of compulsory retirement dated 6-1-2000 is hereby quashed. In the peculiar facts and circumstances of the case there shall be no order as to costs.