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2009 DIGILAW 2485 (ALL)

Ram Swarath Chauhan v. State of U. P.

2009-07-06

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J.—Heard counsel for the petitioner and the learned standing counsel. 2. In the instant writ petition, the petitioner, who was Senior Clerk in the office of Transport Commissioner, has assailed the order of compulsory retirement dated 11.8.2005 inter alia on the grounds that (i) the criteria applied for screening out of the deadwood was arbitrary and manifestly illegal ; (ii) the entire service career of the petitioner (35 years) has remained unblemished ; (iii) the petitioner cannot be declared as a deadwood on the basis of single adverse entry ; and lastly, the U. P. Government Servants (Discipline and Appeal) Rules, 1999 does not provide the compulsory retirement as one of the punishment. 3. Learned standing counsel has submitted that the petitioner's service as indicated in the counter-affidavit shows that the petitioner was not a fit person to be retained in service and therefore, no fault can be attributed to the action taken by the authority in passing the order of compulsory retirement. 4. Counsel for the petitioner, during the course of arguments, invited the attention of the Court towards a judgment rendered by this Court in Chander Prasad Verma v. State of U. P. and others, 2006 (24) LCD 340, in which also, by the order of the same date, another employee against which there was single adverse entry was also retired compulsorily. This Court set aside the order of compulsory retirement dated 11.8.2005 passed by the Additional Commissioner of Transportation and held that the appointing authority has arbitrarily exercised its power and has failed to take into account the total record of service of the petitioner and the matter was not objectively considered. The case of the petitioner, in the instant writ petition, is almost identical and is on same footing. 5. In Chander Sekhar Singh v. State of U. P. and others, 2001 (19) LCD 317, the Division Bench of this Court held that it is a cumulative effect of the service record which is to be objectively scrutinized by the appointing authority for deciding as to whether the Government servant has lost its utility and has become a deadwood or not. 6. Here, it is also relevant to mention that a charge-sheet was given to the petitioner on 1.4.2004 in which four charges were levelled against him. In the enquiry, the charge Nos. 1 and 2 were found not true against the petitioner. 6. Here, it is also relevant to mention that a charge-sheet was given to the petitioner on 1.4.2004 in which four charges were levelled against him. In the enquiry, the charge Nos. 1 and 2 were found not true against the petitioner. The assertion of the petitioner is that the impugned order of compulsory retirement has been passed as a measure of punishment which renders the impugned order illegal. 7. The respondents have filed a supplementary counter-affidavit wherein it has been mentioned in paragraphs 4 and 6 as under : "4. That the contents of para 3 of the supplementary-affidavit are incorrect hence denied, it is submitted that petitioner has not only been awarded the adverse entry but also his annual increment has been stopped. The charges against the petitioner were serious, irregularities and negligence on the Government work were proved, which has already been discussed in para 4 of the counter-affidavit. Petitioner has been compulsory retired on the above charges. 6. That in reply to the contents of para 8 of the supplementary-affidavit, it is submitted that in the enquiry report dated 13.11.2004, submitted by enquiry officer, it has been clearly discussed that the reply/clarification of the petitioner, is not satisfactory which shows his carelessness on the duty / responsibility, accordingly petitioner has been compulsorily retired which is in accordance with law and after adopting legal procedure…." 8. An order of compulsory retirement is passed in exercise of F.R. 56 after assessing the work and performance of a Government servant on the ground that he has outlived his utility and has rendered a dead wood. The same as such cannot be said to be punishment and neither Article 311 is attracted in such case nor rules pertaining to disciplinary matters are attracted. However, where after holding a departmental inquiry an order of compulsory retirement is passed by recording a finding that the charges are proved, the situation would be different. 9. The power under Fundamental Rules 56 (C) cannot be used to punish the Government servant. It is a different power altogether than the one which is defined in C.C.A. Rules and other relevant provisions under which the major and minor penalties are imposed upon the Government servants. 10. In the present case, the total record of the service of the petitioner was not taken into consideration objectively. It is a different power altogether than the one which is defined in C.C.A. Rules and other relevant provisions under which the major and minor penalties are imposed upon the Government servants. 10. In the present case, the total record of the service of the petitioner was not taken into consideration objectively. The appointing authority or the Screening Committee ought to have taken into account the past service record and the remarks placed on the service record. There is no justification for compulsorily retiring the petitioner on the basis of solitary adverse remark. 11. In view of above discussion, the order of compulsory retirement is wholly mala fide and is punitive in nature. 12. The writ petition is allowed. 13. 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.