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Madhya Pradesh High Court · body

2009 DIGILAW 852 (MP)

STATE OF MADHYA PRDESH v. YOGIRAJ SHARMA

2009-07-23

K.K.LAHOTI, K.S.CHAUHAN

body2009
Judgment ( 1. ) THIS appeal is directed under Section 2 of the Madhya Pradesh Uchcha nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 assailing the order dated 14-11-2008 passed by the learned Single Judge in W. P. No. 386/2008. ( 2. ) THE learned Single Judge by the impugned order quashed the order of compulsory retirement of the respondent on the ground that the aforesaid order was not passed on the basis of screening of service record, but on a communication received from the Income Tax Department. The communication from the Income Tax Department was only an intimation with regard to the search and seizure conducted by it and informing the State government to take an action in this regard. The allegations in the said communication were serious in nature. The appellant though was initially suspended and a charge-sheet was issued to him prior to receiving the communication, but on getting such communication, the State decided to retire the respondent compulsorily, without conducting an enquiry on the basis of the charge-sheet which was issued earlier but based on similar charges. The learned Single Judge found that without concluding the enquiry and arriving at a logical conclusion in the enquiry, action taken by the appellant assuming the allegations in the communication by the Income Tax department to be correct, was nothing but an arbitrary action based on extraneous consideration. The learned Single Judge further found that there was prima facie record that the Income Tax Department conducted raid in the house of respondents son and not in the house of the respondent and if this fact could have been considered by the State Govt. then there was no nexus between raid conducted in the house of the respondents son and the respondents involvement in the matter. Merely on the ground of intimation received from the Income Tax Department, the respondent could not have been retired compulsorily. The appellant ought to have proceeded with the enquiry of charges of similar nature in respect of which allegations were made in the intimation of the Income Tax Department. On this ground, the learned Single judge found that the order was in fact not in the public interest and the appellant was unable to make out a case against the respondent retiring him in public interest. On this ground, the learned Single judge found that the order was in fact not in the public interest and the appellant was unable to make out a case against the respondent retiring him in public interest. On these grounds, the order was quashed with observations that the respondent was suspended by the appellant and a charge-sheet was issued against him, so the State is free to proceed in the matter in accordance with law and quashment of the order of compulsory retirement and the observations made in the order shall not be considered in any manner whatsoever in the departmental Enquiry. With the aforesaid order, the writ petition filed by the respondent was allowed and the order of compulsory retirement Annexure P-l of W. P. No. 386/2008, dated 10-12-2007 was quashed. This order is under challenge in this appeal. ( 3. ) SHRI Rahul Jain, the learned Counsel for the State, assailed the order on the grounds:- (a) that as per information sent by the Income Tax Department, huge amount of cash and undisclosed benami property were recovered from the residence of respondent and, therefore, there were justified reasons with the state Govt. to take action against the respondent. The matter was referred to a high Level Screening Committee to examine suitability of continuation of the service of the respondent in public interest in terms of Rule 42 (1) (b) of Pension rules, 1976. The respondent had completed 50 years of age and 20 years of service so Rule 42 (1) (b) of the Pension Rules, 1976 (hereinafter referred as pension Rules) was applicable. The Screening Committee examined the matter and recommended to the Govt. for retiring compulsorily to the respondent. Under Rule 42 (1) (b) of the Pension Rules, recommendation was accepted by the State and accordingly respondent was retired compulsorily in public interest. (b) Looking to the huge cash amount recovered from the residence of respondent and other properties, the action was justified and the law laid down by the Apex Court in State of Gujarat Vs. Umed Bhai M. Patel, (2001) 3 scc 314 , was not applicable. The investigation against respondent in respect of allegations of collecting disproportionate property by undisclosed sources is still pending before the Income Tax Department. So it is futile to initiate proceedings of same nature which is subject-matter of an enquiry by the Income tax Department. Umed Bhai M. Patel, (2001) 3 scc 314 , was not applicable. The investigation against respondent in respect of allegations of collecting disproportionate property by undisclosed sources is still pending before the Income Tax Department. So it is futile to initiate proceedings of same nature which is subject-matter of an enquiry by the Income tax Department. (c) The appellant was right in retiring respondent being a dead wood and practically of no utility to the employer. Compulsory retirement is not punishment. Its purpose and object is to weed out an inefficient, corrupt, dishonest employee from Govt. service. It was submitted that even on the basis of serious allegations of corruption or dishonesty, the respondent could have been retired by the appellant compulsorily. The appellant in support of his contention placed reliance to the Apex Court judgment in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, (1992) 2 scc 293, Union of India Vs. Dulaldutt, (1993) 2 SCC 179 ,jugal Chandra Saikya vs. State of Assam, (2003) 4 SCC 59 and M. L. Bijnulkar Vs. State of M. P. , (2005)6 SCC 224 and submitted that this appeal be allowed, the impugned order passed by the learned Single Judge be set aside. ( 4. ) SMT. Shobha Menon, learned Senior Advocate submitted that the learned Single Judge quashed the order passed by the appellant directing compulsory retirement of the respondent on the ground that merely on the basis of a letter issued by the Income Tax Department, the respondent ought not to have been retired compulsory. The appellant ought to have considered the entire service record and after subjective satisfaction in respect of respondents utility and the allegations against him, the order could have been passed. Once a charge-sheet in respect of similar type of allegations was issued by the appellant then without awaiting outcome of the charge-sheet, the appellant was not entitled to retire respondent compulsorily in public interest. This Court while considering the order of compulsory retirement can unveil the curtain, to look into the real nature of the order and if the order was passed with an ulterior 1 motive to punish the respondent without holding a Departmental Enquiry in respect of serious allegations, the order would be not sustainable under the law and the learned Single Judge rightly quashed it. She placed reliance to the Apex court judgment in M. S. Bindra Vs. Union of India and others, AIR 1998 SC 3058 , state of Gujarat Vs. Suryakant Chuni Lal Shah, (1999) 1 SCC529,high Court of punjab and Haryana Vs. Ishwar Chand Jain, AIR 1999 SC 1677 , State of Gujarat vs. Umedbhai M. Patel, AIR 2001 SC 1109 , M. P. E. B. Vs. Shree Baboo, (2002) 9 scc 704 , a Division Bench judgment of this Court in State of M. P. Vs. Noorjama khan, 2002 (3) MPLJ 147 , and submitted that this writ appeal is without any merit and may be dismissed. ( 5. ) TO appreciate rival contentions of the parties, it would be appropriate if factual position in the case is stated. The respondent had filed a writ petition before the Single Judge challenging order dated 10-12-2007 (Annexure P-l of the petition) by which he was retired compulsorily under clause (b) of sub-rule (1) of Rule 42 of Madhya Pradesh Civil Services (Pension)Rules, 1976. As per respondent, he joined service in the Health Department as assistant Surgeon on 29-5-1982. He was confirmed after selection by Public service Commission in the year 1991. He was promoted as CMO on 12-1-1998 and thereafter he was promoted on the post of Director, Health Services vide order dated 2-12-1998. As per case of the respondent, he was having an outstanding service career. He discharged responsibilities as assigned to him by the Department. The respondent was allotted a Government quarter bearing no. D-104/9 at Shivaji Nagar, Bhopal and was occupying the same by virtue of the allotment order dated 2-6-2006 (Annexure P-l9 ). (a) His son Gaurav Sharma has completed his graduation in B. E. from Barkatullah University, Bhopal in the year 2004. Thereafter he prosecuted his studies in the University of Western Sydney, Australia and completed this course in the year 2006. Thereafter he started his multifarious business activities at Bhopal and acquired considerable assets and properties because of business activities undertaken by him. The respondents son was living separately in his own house bearing No, A-70, Shakti Nagar, BHEL, Bhopal. This house was gifted to him by his grand mother as per her Will dated 14-4-2000 (Annexure p-l6) in the writ petition. The respondents son was living separately in his own house bearing No, A-70, Shakti Nagar, BHEL, Bhopal. This house was gifted to him by his grand mother as per her Will dated 14-4-2000 (Annexure p-l6) in the writ petition. The house was transferred in the name of Gaurav sharma in the records of the Electricity Board and various other authorities and for mutation in the records of the Nazul and the Municipal Corporation the matter was under process. As per respondent, Gaurav Sharma was filing Income tax returns separately and particulars of his income and tax returns were mentioned in the writ petition. That the Income Tax Authorities conducted search and seizure operation at the residence of petitioners son situated at shakti Nagar on 7-9-2007 in the morning and in the search, an amount of Rs. 1. 13 crores in cash and foreign currency worth Rs. 4. 5 lacs were recovered. Apart from this, other premises belonging to the petitioner and his relatives were also searched by the Income Tax Department and the Enforcement Directorate. In this regard, those departments initiated various proceedings against respondent. An intimation about the aforesaid action by the authorities of the income Tax Department was sent to the Competent Authority of the State govt. telephonically and subsequently by a communication (Annexure R-2) in the name of the Chief Secretary, State of M. P. by the Office of Director General of Income Tax, Bhopal. The communication reveals that on the basis of certain complaints received by the Directorate, investigation was started against the respondent for possessing wealth without paying Income Tax. It was also communicated that preliminary investigations revealed that substantial money was generated by respondent and was shown as investment in companies and firms, in which respondents son and wife were partners and share holders. On the basis of the evidence collected by the Income Tax Department, search was conducted in the residence of respondent Dr. Yogiraj Sharma. Annexure R-2 further reveals that the respondent informed the Department that the seizure was made at the residence of respondents son and the respondent was not having any concern with the amount seized by the Department and this amount relates to his son. The Department indicated that respondents son was a student till November, 2006 and the aforesaid income in fact belongs to the respondent. His explanation was unsatisfactory. So the State Govt. The Department indicated that respondents son was a student till November, 2006 and the aforesaid income in fact belongs to the respondent. His explanation was unsatisfactory. So the State Govt. was intimated for taking appropriate action in this regard. Annexure R-2 further indicates that the income Tax Department intimated that the copy of the appraisal report will be sent after completion of the post search investigations. (b) After receiving the communication from the Income Tax authorities, by an order dated 10-9-2007 (Annexure P-20), the respondent was suspended from service. (c) The respondent submitted particulars of his family, their income and documentary evidence to show that respondent and his family members had not concealed any income and he had not committed any default in payment of income tax and tried to justify his action. ( 6. ) THE appellant had issued a charge-sheet (Annexure P-25) on 7-12-2007 on the ground that respondent committed such misconduct and departmental proceedings for possessing disproportionate property/assets were initiated against him under Rule 14 of M. P. Civil Services (Classification, control and Appeal) Rules, 1966. The respondent was allowed time to submit his reply with a notice that disciplinary action would be undertaken against him after receiving the reply. But after issuance of charge-sheet on 7-12-2007, without conducting any enquiry on the charges levelled in the charge-sheet, the appellant issued the impugned order dated 10th December, 2007, within a period of three days, by which the respondent was retired compulsorily invoking power under Rule 42 (1) (b) of Pension Rules. This order (Annexure P-l) was challenged before the learned Single Judge by filing writ petition. ( 7. ) IN this case, following questions emerge for consideration:- (i) Whether the action of the appellant, retiring respondent invoking Rule 42 (1) (b) of the Pension Rules, was justified ? (ii) Whether the appellant was entitled to invoke powers under rule 42 (1) (b) in spite of issuance of charge-sheet on 7-12-2007 ? (iii) Whether merely on the basis of letter sent by the Income tax Department dated 10th September, 2007 the appellant was justified in retiring respondent compulsorily ? ( 8. ) AS in this case, factual position is not in dispute that on the basis of letter of Income Tax Department dated 10-9-2007 (Annexure R-2), the respondent was placed under suspension. (iii) Whether merely on the basis of letter sent by the Income tax Department dated 10th September, 2007 the appellant was justified in retiring respondent compulsorily ? ( 8. ) AS in this case, factual position is not in dispute that on the basis of letter of Income Tax Department dated 10-9-2007 (Annexure R-2), the respondent was placed under suspension. Thereafter on 7-12-2007, a charge-sheet was issued in respect of the same allegations which find place in the letter (R-2), the respondent was retired compulsorily vide order (Annexure p-l ). So the entire case is based on legal position in this regard. The learned single Judge has placed reliance to the Apex Court judgment in State of Gujarat vs. Umed Bhai M. Patel (supra), and to proceed further, it would be proper that the law as settled by the Apex Court in Umed Bhai M. Patel (supra), be referred. The Apex Court considering the principle governing compulsory retirement held in Para 11:- "11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:- (i) Whenever the service 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 in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. " ( 9. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. " ( 9. ) EARLIER to it, the Apex Court in Suryakant Chuni Lal Shah (supra), considered legal position and held thus :- "in order to find out whether any Government servant has outlived his utility and is to be compulsorily retired in public interest for maintaining an efficient administration, an objective view of overall performance of that Government servant has to be taken. Performance of a Government servant is reflected in annual character roll entries and, therefore, one of the methods of discerning efficiency, honesty or integrity of a Government servant is to look to his character roll entries for the whole tenure from inception to the date on which decision for his compulsory retirement is taken. If character roll is studded with adverse entries or overall categorization of employee is poor and there is material also to cast doubts upon his integrity, such Government servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of "integrity". If this is missing, whole bundle would disperse. A Government servant has, therefore, to keep his belt tight. Purpose of adverse entries is primarily to forewarn a Government servant to mend his ways and to improve his performance. Adverse entries are required to be communicated so that the Government servant, to whom adverse entry is given, may have either opportunity to explain his conduct so as to show that adverse entry is wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance. The authorities themselves were uncertain in the present case about the action which was to be ultimately taken against respondent. There was hardly any material on the basis of which a bonafide opinion could have been formed that it would be in public interest to compulsorily retire the respondent from service. " ( 10. The authorities themselves were uncertain in the present case about the action which was to be ultimately taken against respondent. There was hardly any material on the basis of which a bonafide opinion could have been formed that it would be in public interest to compulsorily retire the respondent from service. " ( 10. ) IN M. S. Bindra (supra), in almost similar circumstances, the Apex court considering the facts of the case held thus:- "the appellant Director of Anti Evasion Wing had established an unblemish reputation and earned encomiums from all concerned for having conducted series of raids on business houses to unearth huge amount of concealed excise duty. He was dubbed as an officer of doubtful integrity and ordered to compulsorily retire. Out of the three instances on which the Screening Committee relied to dub the officer as a case of "doubtful integrity" the first was his action against a business house. The fact is that it was the appellant who headed the operation. A task which unearthed huge sum of concealed excise duty would normally evoke appreciation for his work. But what was noted against him in that affair was that he willfully created lacunae in the confiscation proceedings for providing an escape route to the defaulter. One lacunae was that the confiscation order contained nearly 100 pages and the period was too short for preparing such an order. Another lacunae was that he imposed a huge penalty and fine without issuing a show-cause notice. Normally it is an achievement that an order of 100 pages was made during such a short period. It cannot be frowned at by inferring that he would have caused it to be written by somebody else. Similarly to say that he imposed penalty without notice, in order to help the defaulter is too fetched. The second instance was that investigation against some business houses was kept in abeyance by the Deputy Director allegedly at behest of appellant. The minimum thing expected of the Screening Committee was to ascertain from the Deputy Director, the circumstances under which instructions were issued by him to keep the investigation in abeyance. Attributing a sinister motive to the appellant for what his deputy had done was seemingly unfair, without adopting the minimum precaution. The minimum thing expected of the Screening Committee was to ascertain from the Deputy Director, the circumstances under which instructions were issued by him to keep the investigation in abeyance. Attributing a sinister motive to the appellant for what his deputy had done was seemingly unfair, without adopting the minimum precaution. The third instance was a statement by owner of a business house that a third person has told them that appellant was to be paid Rs. 10 lakhs to save them from the proceedings. Neither its truthfulness was checked with the appellant or with the third person who had made it. Held, there was utter dearth of evidence for the Screening committee to conclude that appellant had doubtful integrity. Order by which premature compulsory retirement was imposed on the appellant was liable to be set aside. " ( 11. ) IN Ishwar Chand Jain (supra), the Apex Court considering the case held thus:- "30. . . . . . that Jain was retired while under suspension. It appears that the High Court on its administrative side decided to keep disciplinary proceedings against respondent pending for the purpose of imposing the cut on his retiral benefits. The conclusion is obvious that action of the High Court in retiring Jain was based on the allegation of misconduct, which was subject-matter of the inquiry before a Judge of the High Court and which appears to us to be the basis for recording of adverse remarks by the High Court in the ACR of the officer for the year 1991-92. There is substance in the argument of Mr. M. N. Krishnamani, learned Counsel for Jain, that the High Court found a short cut to remove Jain from service when the order of retirement was based on the charges of misconduct subject-matter of the enquiry. We agree with Mr. Krishnamani that the impugned order of compulsorily retiring Jain though innocuously worded is in fact an order of his removal from service and cannot be sustained. " ( 12. ) IN the light of the aforesaid settled position of law by the Apex court, now the judgments relied upon by the appellant may be looked into. In baikunth Nath (supra), the Apex Court observed that an order of compulsory retirement has to be passed by the Government on forming an opinion that it is in the public interest to retire a Government servant compulsorily. In baikunth Nath (supra), the Apex Court observed that an order of compulsory retirement has to be passed by the Government on forming an opinion that it is in the public interest to retire a Government servant compulsorily. The order is parsed on the subjective satisfaction of the Government. 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 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. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F. R. 56 (j) or a rule corresponding to it. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, moreso, if the promotion is based upon merit and not upon seniority. Now another judgment in Dulal Dutt (supra) may be looked into. The Apex Court held that an order of compulsory retirement is not an order of punishment and therefore speaking order is not required. It is actually a prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government. In Jugal Chandra Saika (supra), the Apex Court held that the order of compulsory retirement in public interest should be based on subjective satisfaction of the Competent Authority. The subjective satisfaction should be formed on objective consideration. However, interference can be made only when order was passed on no evidence or is totally perverse. In M. J. Binjulkar Vs. State of M. P. , (2005) 6 SCC 224 , the Apex court held that the order of compulsory retirement is not a punishment. The employer takes into account various factors emanating from the employees past records and takes a view whether it would be in the interest of the employer to continue services of the employee concerned. It can pass an order of compulsory retirement when the employee is considered to be dead wood and practically of no utility to the employer. The employer takes into account various factors emanating from the employees past records and takes a view whether it would be in the interest of the employer to continue services of the employee concerned. It can pass an order of compulsory retirement when the employee is considered to be dead wood and practically of no utility to the employer. The purpose and object of premature retirement of a government employee is to weed out the inefficient, the corrupt, the dishonest or the dead wood from Government service. ( 13. ) NOW, in the light of settled law by the Apex Court, the facts of the case may be looked into. The most important document is the proceedings of screening Committee dated 10-11-2007 in which the Scrutiny Committee consisting of Principal Secretary of Health and Family Welfare Department, principal Secretary, G. A. D. and Additional Chief Secretary, Home Department considered the case of respondent. In the earlier part of the proceedings, in Par 1 of the proceedings, letter dated 19-9-2007 of the Director General of Income tax Department (Investigation) has been referred and in Para 2, it has bee stated that respondent was suspended vide order dated 10th September, 2007 the Public Health and Family Welfare Department. Thereafter referred circular dated 22nd August, 2007 of the GAD, issuing instruction for proceeding in the matter of compulsorily retirement after completion of 50 years of age c 20 years of service. In Para 4, the formation of the Screening Committee b order dated 10-11-2007 has been referred. In Para 5, the Scrutiny Committed found that as per the letter of Director General of Income Tax, an amount of Rs 1. 13 crores and Rs. 4. 5 lakh foreign currency were found in the house o respondent, though the respondent took the stand that it belongs to his son, but considering the age of son of respondent as 26 years and to the fact that till 2009 he was a student, the stand of respondent was found to be incorrect. On the basis of this, the Scrutiny Committee found that the amount so recovered from the residence of respondent creates a serious doubt that this amount was collected by respondent by way of illegal means. In this regard, letter of Income Tax department, reports in various newspapers and electronic media were considered and the Committee found that because of this, the reputation of govt. In this regard, letter of Income Tax department, reports in various newspapers and electronic media were considered and the Committee found that because of this, the reputation of govt. was under shadow and recommended that respondent be retired compulsorily. ( 14. ) AT the time of consideration, it appears that nine last ACRs of respondent were placed before the Scrutiny Committee, but the Scrutiny committee had not considered at all the ACRs of the respondent. From the perusal of the tabulation chart of the ACRs, it appears that in the last 9 years, the respondent was either awarded A or plus A gradation in the ACRs. ( 15. ) FROM the perusal of the aforesaid, it is apparent that the sole consideration before the Scrutiny Committee was letter of Director General of income Tax. The Scrutiny Committee had not considered ACRs which ought to have been considered before taking a final decision under Rule 42 (1) (b) as held by the Apex Court in Surya Kant Shah, M. S. Bindra, Ishwarchand Jain and Umed bhai M. Patel (supra ). Now, the crucial document on the basis of which the respondent was suspended, the enquiry was directed, a charge-sheet was issued and the Scrutiny Committee took a final decision may be looked into. For ready reference, the entire letter is reproduced which reads as under :- ( 16. ) FROM perusal of the aforesaid, it is apparent that Director General of Investigation intimated to the Chief Secretary, Govt. of M. P. , Vallabh bhawan, Bhopal in respect of search and seizure operation at the residence of respondent and his associates. Para 1 of the letter reveals in respect of receiving various complaints against the respondent for an investigation of allegations/information about alleged amassing wealth collected by respondent. Para 2 of the letter specifically stated that the outcome of search is yet to be fully analyzed, though it was intimated in respect of unearthing cash of 1. 13 crores and 4. 5 lakhs in foreign currency, but the last line of Para 2 again states that a copy of the appraisal report will be sent to the Government on completion of post search investigations. The Income Tax Department was seized with the matter. No final conclusions were recorded by the Department and an intimation was sent ii respect of search and seizure in the house of respondent. The Income Tax Department was seized with the matter. No final conclusions were recorded by the Department and an intimation was sent ii respect of search and seizure in the house of respondent. Though the letter itself shows that the respondent and his son had taken a plea that the income belon| to his son and without a final analysis by the Department or completion o investigation, the aforesaid intimation cannot be said to be a final conclusion by the Income Tax Department. There were no adverse entries in the confidential reports of respondent. On the contrary, he earned A or + A gradation in last 9 years which were not considered by the Committee. In the return also, nothing has been averred against the respondent in respect of his service record. As per case of respondent, he was promoted on the post of Director, Health Services and was working since 1998. The sole criteria on the basis of which, the respondent was retired compulsory was the communication Annexure R-2, dated 9th September, 2007 from the Income Tax Department. Initially, the respondent was placed under suspension. A charge-sheet was issued to respondent but in place of proceeding with the enquiry, the appellant decided to retire respondent compulsory merely on the basis of allegations as contained in annexure R-2. The respondent was not extended any opportunity of hearing in respect of allegations made against him. A charge-sheet issued against the respondent was also not proceeded and in place of holding an enquiry, in respect of alleged serious charges, the appellant retired the respondent. The Income tax Department had not completed its post search investigation and merely on the basis of letter of Income Tax Department retiring respondent compulsory was based on extraneous consideration. In these circumstances, on the basis of letter (Annexure R-2), the action of the appellant directing compulsorily retirement, was apparently arbitrary, unjust and haste decision. ( 17. ) THE guidelines issued by the appellant dated 22-8-2000 (Annexure r-1) specifically provides the procedure to retire compulsorily an employee in which basis of consideration only of ACRs of an employee of last years, but as has been referred above, the ACRs of the respondent were at all not taken into consideration while the appellant took a final decision to retire respondent compulsorily. ( 18. ( 18. ) IN respect of these allegations, when the appellant after receiving the letter (Annexure R-2), dated 9th September, 2007 from the Income Tax department, decided initially to initiate Departmental Enquiry against the respondent and issued a charge-sheet on 7-12-2007 itself, then without waiting the outcome of Departmental Enquiry, retiring the respondent compulsorily was apparently a punitive order and was not sustainable under the law. The learned Single Judge considering the law laid down by the Apex Court Umed bhai M. Patel (supra), M. S. Bindra, S. K. Shah (supra), rightly held that the aforesaid order was not sustainable under law and rightly quashed the order in which we do not find any justification warranting our interference. ( 19. ) NOW, one more aspect may also be looked into. The learned Single judge in Para 23 of the order granted an opportunity to the appellant to proceed in the matter in accordance with law and a specific direction that the quashment of the order of compulsory retirement and observations made in the order shall not come in the way of the appellant for initiating department proceedings is concerned, the aforesaid order is just and proper. After quashment of the order of compulsory retirement, the appellant is free to proceed with the D. E. So far as suspension of respondent is concerned on passing of an order of compulsory retirement, it merged in the order. But the appellant is always free to pass a fresh order and in this regard, no directions are needed from this Court. The appellant may take a fresh decision in this regard and is also free to proceed with the departmental proceedings. ( 20. ) IN the light of the aforesaid discussions, this appeal is found without merit. The order passed by the learned Single Judge does not require any interference and is also affirmed with liberty to the appellant as indicated hereinabove. Considering the facts of the case, there shall be no order as to costs.