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2012 DIGILAW 1728 (RAJ)

Nemi Chand Gupta v. Rajasthan State Roadways Transport Corporation

2012-08-08

ALOK SHARMA

body2012
JUDGMENT 1. - By way of the instant writ petition a challenge has been laid to the order dated 24th April, 2002 by which the Chairman, RSRTC, Jaipur in exercise of the right conferred by regulation 57(a)(i) of the Rajasthan State Road Transport Corporation Employees Service Regulations, 1965 (hereinafter to be referred in short 'Regulations of 1965') has compulsorily retired the petitioner from the post of Assistant Accounts Officer. 2. Mr. S.C. Gupta counsel appearing for the petitioner has assailed the legality and validity of the impugned order dated 24th April, 2002 and submitted that the order dated 24th April, 2002 compulsorily retiring the petitioner is arbitrary, illegal and suffers from malafides and further submitted that adverse entries record in the service record of the petitioner, which the Screening Committee has taken into consideration have been largely set aside by the civil courts. Counsel submits that the meeting of the Screening Committee held on 4th December, 2001 did not record its opinion that the petitioner's compulsory retirement was necessary to obviate the adverse effects of his further employment with the Corporation till his superannuation at the age of 60 years. Counsel submits that the test of satisfaction of the employer that the continuation of an employee would be adverse in the interest of employer is fundamental to invoke the powers to compulsory retire. In support of his argument, the counsel has relied on the judgment of this Court in the case of Narayan Singh v. State of Rajasthan & Others (S.B. Civil Writ Petition No. 1337/2003 decided on 13th March, 2007) . Counsel has further relied on the judgment of this Court in the case of RSRTC v. Prem Chand Chouhan (D.B. Civil Special Appeal (writ) No. 880/2006; decided on 25th January, 2007) . 3. Counsel further submitted that Narayan Singh (petitioner in aforementioned writ petition No. 1337/2003 decided on 13/3/2007) was also compulsorily retired by the same Screening Committee and his order of compulsory retirement has been set aside by this Court. Counsel submits that principle of law and the test enunciated on which writ petition filed by the Narayan Singh was allowed by this Court applies with equal force to the case of the petitioner as the extent of consideration prior to compulsory retirement in the case of the petitioner was identical to the extent of consideration in the case of Narayan Singh. It is submitted that the case of the petitioner is at par with that of Narayan Singh (supra). 4. Mr. Virendra Lodha counsel appearing for the respondent-RSRTC submits that the impugned order dated 24th April, 2002 compulsorily retiring the petitioner was valid in the eye of law and has been passed on the evaluation of the entire service record of the petitioner. Counsel submits that the petitioner had been visited with as many as half a dozen punishments such as warnings and censure including a punishment under the order dated 16th November, 1999, whereby the petitioner was visited with penalty of stoppage of one grade increment with cumulative effect, which however, was under challenge at the relevant time and was set aside by the Additional Civil Judge (Jr.Division) cum Judicial Magistrate No. 2, Jaipur City, Jaipur on 13th July, 2010. 5. On the material available on record and submissions made by the counsel for the petitioner, the question which arises for consideration of this Court is as to whether for compulsorily retiring the petitioner, the Screening Committee came to a conscious satisfaction that the continuation of the petitioner in the employment was adverse to the interests of the Corporation? 6. Having considered the submissions made by the learned counsel for the parties and perused the material available on record, it appears that the Screening Committee did not arrive at a conclusion that the continuation of the petitioner as an employee of the Corporation would be adverse to the interest of the Corporation. In fact, the Screening Committee in its meeting of 4th December, 2001 considered (if at all) the case of 24 employees generally including that of the petitioner and no specific consideration of the record of any of the employee including that of the petitioner was made. The recommendation of the Screening Committee was placed before the Review Committee headed by the Chairman of the Corporation and other members of the Board of the Directors. The Review Committee mechanically affirmed the report of the Screening Committee for compulsorily retiring all the 24 employees of the Corporation without any apparent application of mind qua to each of the 24 employees and reference to the material on which the decision for compulsory retirement was taken. The Review Committee mechanically affirmed the report of the Screening Committee for compulsorily retiring all the 24 employees of the Corporation without any apparent application of mind qua to each of the 24 employees and reference to the material on which the decision for compulsory retirement was taken. It is not res integra that the purpose and object of compulsory retirement of a Government employee or that of Public Sector Undertaking is to weed out the inefficient, corrupt, dishonest or deadwood from the service. The competent authority, however, while exercising the extraordinary power to compulsory retire a Government servant truncating the tenure till regular superannuation is required to form an opinion on the totality of the circumstances obtaining from the entire service record of the employee and come to a conclusion that the employee sought to be compulsory retired is undeserving of further continuation in employment and his/her continuation in service would be adverse to the interest of the employer. The employer cannot also invoke stale record of service of the petitioner sought to be compulsory retired not germane to the current efficiency of the employee, which quite obviously is a relevant aspect. On the issue of the petitioner's efficiency in the 12 months preceding his compulsory retirement, it is an admitted fact that vide order dated 2nd July, 2001, the petitioner was promoted to the post of Assistant Accounts Officer. Quite obviously as of 2nd July, 2001, a mere five months before the meeting of the Screening Committee as 4th December, 2001, the petitioner had been found an employee who was an asset to the Corporation. In my considered opinion, the record of Government servant in the period immediately preceding the date of compulsory retirement ought to have been considered by the Screening Committee as also the Review Committee and this was admittedly not done. 7. In the case of Brij Mohan Singh Chopra v. State of Punjab reported in (1987) 2 SCC 188 , the Hon'ble Supreme Court held that while considering the question of premature retirement it is desirable to make an overall assessment of the Government servants' record, but while doing so, more value should be attached to the confidential reports pertaining to the years immediately preceding to the consideration. 8. 8. Quite obviously, in the context of law enunciated by the Hon'ble Supreme Court, the Screening Committee as also the Review Committee ought to have considered the factum of the petitioner's promotion a mere five months ago based on merit cum seniority basis as has been averred in the writ petition and not denied by the respondents Corporation in its reply thereto. 9. Counsel for the respondent has submitted that in the case of Narayan Singh (supra), the Corporation has filed a D.B. Special Appeal along with stay application. The Appeal was admitted but the stay application was dismissed on 9th May, 2008. The fact that presently thus obtain is that Narayan Singh (supra) has been reinstated in service pursuant of the order dated 13th March, 2007. 10. In my considered opinion, it is apparent from the writ petition filed by petitioner, reply thereto and documents relied in the course of hearing that the order of compulsory retirement of the petitioner passed on 24th April, 2002 was a mechanical order based on non-consideration by the Screening Committee as also Review Committee as to how the continuation of the petitioner in the employment of the Corporation would be adverse to the interest of the Corporation. The factum of the petitioner's promotion to the post of Assistant Accounts Officer under the order dated 2nd July, 2001 (current efficiency) was also not considered as would have been warranted in terms of the judgment of the Hon'ble Supreme Court in the case of Brij Mohan Singh Chopra (supra). 11. A perusal of the consideration by the Screening Committee which took decision to compulsory retire the petitioner would indicate that no specific consideration of the petitioner's case was made and a general order had been passed in respect of 24 persons in the meeting of the Screening Committee held on 4th December, 2001. It is quite obvious that Screening Committee did not come to any recorded satisfaction more so qua the petitioner that in the interest of the Corporation would be adversely affected if the petitioner were not to compulsory retire. The case of the petitioner is on the principle enunciated by this Court in the case of Narayan Singh (supra) fully covered. Consequently, in my view the compulsory retirement of the petitioner was unjust, unreasonable and arbitrary. 12. The case of the petitioner is on the principle enunciated by this Court in the case of Narayan Singh (supra) fully covered. Consequently, in my view the compulsory retirement of the petitioner was unjust, unreasonable and arbitrary. 12. For the aforesaid reasons, the writ petition is allowed and the order dated 24th April, 2002 passed by the Chairman of the respondent Corporation is set aside. The petitioner will be deemed to be in service till date and upto his superannuation with all consequential benefits other than as detailed below. 13. Now, the question which remains for consideration is as to whether the petitioner while be being reinstated and entitled to be continuity in service should be also entitled to full back wages for the period commencing his compulsory retirement till his reinstatement under the order of this Court. 14. In my considered opinion, the respondent-Corporation is a public body and runs on public money. The casualness and carelessness of its officers in not applying their mind while compulsorily retiring the petitioner or otherwise wrongly compulsorily retiring him should not be an undue suffering on public revenues. The fact of the matter is that the petitioner has not worked during the period of about 10 years, gone by, I would thus, direct that even while the petitioner would be deemed to be in service all through and be entitled to the benefit of continuity of service, pay, seniority etc., for the purpose of back wages he should be paid only 75% of the back wages for the period commencing his compulsory retirement till his reinstatement/superannuation.Writ petition allowed. *******