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2011 DIGILAW 940 (RAJ)

S. D. Paliwal v. Union of India

2011-05-06

A.M.SAPRE, NISHA GUPTA

body2011
JUDGMENT 1. - This is a writ petition filed under Article 227 of the Constitution of India against the Order dated 25.3.2010 (Annex.22) passed by the Central Administrative Tribunal, Jodhpur (for short, "the Tribunal" hereinafter) in Original Application No. 100/2005 against the orders dated 20.11.2003 (Annex.A/2) and 25.5.2004 (Annex.A/1) passed by the respondent No. 3, whereby the petitioner was compulsorily retired from service by the Competent Authority under the provisions of F.R. 56-J by the impugned orders Annex.A-1 and Annex.A-2. The Tribunal, vide impugned order Annex.22 dated 25.3.2010, dismissed the Original Application without giving any relief to the petitioner. Aggrieved with the impugned order dated 25.3.2010 (Annex.22), the present writ petition is before us. 2. The sole question which arises for consideration in this writ petition is : whether the Tribunal was justified in dismissing the Original Application with the observation that the orders passed by the respondent No. 3 are not mala fide and the same are based on proper appreciation of the evidence and, thus, there is no need for any judicial scrutiny? 3. In the instant writ petition, the first contention of the learned counsel for the petitioner is that the officers were biased against him and due to this biasness, he has been given some adverse remarks, otherwise the petitioner has performed his duties with utmost sincerity, honesty and efficiency. It has further been submitted that the petitioner was the honorary Secretary of the Non-political Forum Anti-corruption Council and he had sent reports about corruption and irregularities committed by the Officers of the Government and feeling aggrieved with those reports, the Officers started harassing and victimising the petitioner; he was transferred to Ramgarh (District Jaisalmer) and when he approached the authorities for cancellation of his transfer order, his representation was rejected with a warning that he should not level baseless allegations against senior officers and on this back-ground, he was retired compulsorily, which was basically a mala fide order. Learned counsel for the petitioner has further stated that the petitioner was found to be fit for further services twice in the years 1995 and 2001 and he was also appreciated for his services in the years 1986 and 1993 and there was no good ground for his premature retirement. Learned counsel for the petitioner has further stated that the petitioner was found to be fit for further services twice in the years 1995 and 2001 and he was also appreciated for his services in the years 1986 and 1993 and there was no good ground for his premature retirement. His contention is that once he was found fit in the years 1995 and 2001 then the Annual Confidential Reports of adverse remarks prior to that period would be washed out and the same cannot be taken into consideration in giving him premature compulsory retirement. In support of these contentions, learned counsel for the petitioner has placed reliance on the decision rendered by the Hon'ble Supreme Court in AIR 2001 SC 1109 (State of Gujarat v. Umedbhai M. Patel) , wherein it was held that where an employee had successfully crossed efficiency bar at age of 50 as well as 55 and there was no adverse entry in the employee's Confidential Reports, then the order of compulsory retirement was found to be based on extraneous reasons. Learned counsel for the petitioner has also relied on another decision of the Hon'ble Supreme Court, reported in AIR 2010 SC 151 (Swaran Singh Chand v. Punjab State Electricity Board & Ors.) , wherein it was held that where adverse remarks prior to his promotion were considered, that order suffers from malice in law. He further placed reliance on yet another decision of the Hon'ble Supreme Court, reported in (2009) 5 SCC 732 (National Aviation Company of India v. S.M.K. Khan) , wherein it was held that compulsory retirement is impermissible where on review, competent authority is satisfied that service of an employee is satisfactory. 4. In answer to these arguments, learned counsel for the respondents submitted that the impugned order does not suffer from any lack of bona fide; petitioner's performance was average or consistently bad and it was not up-to-mark apart from that the petitioner had been punished on several occasions. Further, in reply to the writ petition, the respondents have quoted that there were adverse remarks against the petitioner right from the year 1974 and the entire service record of the petitioner was unsatisfactory and he was rightly compulsorily retired from service on account of his poor performance. Further, in reply to the writ petition, the respondents have quoted that there were adverse remarks against the petitioner right from the year 1974 and the entire service record of the petitioner was unsatisfactory and he was rightly compulsorily retired from service on account of his poor performance. Learned counsel for the respondents further submitted that the learned Members of the Tribunal has very categorically opined that the action of the respondents is perfectly just and proper and the impugned order passed by the learned Tribunal does not warrant any indulgence and the same deserves to be up-held by the Hon'ble High Court. In support of his contention, learned counsel for the respondents has relied on the decisions of the Hon'ble Supreme Court reported in : (1932) 2 SCC 299 (Baikuntha Nath Das & Anr. v. Chief District Medical Officer, Baripada & Anr.) ; (2002) 3 SCC 641 (State of U.P. & Ors. v. Vijay Kumar Jain) -, (1998) 4 SCC 92 (State of Punjab v. Gurdas Singh) -, AIR 1994 SC 1261 (Union of India v. V.P. Seth & Anr.) and (2001) 3 SCC 389 (State of U.P. & Anr. v. Lalsa Ram) , wherein it was categorically held by His Lordships of the Hon'ble Supreme Court that the opinion of the Authority regarding compulsory retirement of an employee is passed on the subjective satisfaction of the Government and it was also categorically held that the entire service record is relevant for considering his service record. 5. We have given out thoughtful consideration to the rival submissions made by the learned counsel for the parties. In the case in hand, it is clear from the service record of the petitioner that his services were consistently found bad, his performance had not been found satisfactory and he had been punished on several occasion. Looking to the service record of the petitioner, he was compulsorily retired from service vide order dated 20.11.2003 (Annex.16); he made representation before the concerned authority and his representation was dismissed after due consideration vide order dated 25.5.2004 (Annex. 18). Looking to the whole material available on record and the Annual Confidential Report (which have been reproduced in the reply to the writ petition), it is clear that there are adverse entries in the service records of the petitioner regarding his integrity, inefficiency, indiscipline etc. and his service record was not found satisfactory at all. 18). Looking to the whole material available on record and the Annual Confidential Report (which have been reproduced in the reply to the writ petition), it is clear that there are adverse entries in the service records of the petitioner regarding his integrity, inefficiency, indiscipline etc. and his service record was not found satisfactory at all. After considering the over all service record of the petitioner, the Tribunal has rightly come to the conclusion that the order of compulsory retirement of the petitioner passed by the competent authority was not suffering either from the vice of mala fide or arbitrariness and the same is based on proper appreciation of the material on record. 6. It was also submitted by the learned counsel for the petitioner that passing the order of compulsory retirement dated 20.11.2003 (Annex.16), no specific reasons have been given and the said order is also not a speaking order in the eyes of law. In our opinion, this argument of the learned counsel for the petitioner is not well-founded looking to the over-all facts of the case that the petitioner was continuously cautioned by the competent authorities regarding his behaviour and workings but the same were not improved and, thus, the competent authority had no other option but to compulsorily retire the petition in the public interest. 7. The further submission of the learned counsel for the petitioner is that the services of the petitioner were appreciated on some occasions, which is clear from Annex.5 and Annex.6. In our view, these annexures do not help the petitioner because these letters are only for specific cause and the record show that as per the entire service record of the petitioner, his performance was found poor and unsatisfactory. 8. Thus, looking from any angle, we find no error, illegality or infirmity in the impugned order Annex.22 dated 25.3.2010 passed by the Tribunal and we are not inclined to allow the writ petition and consequently the same is dismissed.Writ Petition Dismissed. *******