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Madhya Pradesh High Court · body

2012 DIGILAW 176 (MP)

Arun Kumar Gupta v. State of M. P.

2012-02-07

RAJENDRA MENON

body2012
ORDER Initially when this writ petition was filed, challenge was made to an order-dated 10-11-2005 issued by respondent No. 3, asking the petitioner to show-cause as to why he should not be compulsorily retired from service in public interest. However, during the pendency of this writ petition vide order-dated 31-3-2006 as the petitioner is compulsorily retired in public interest, the writ petition has been amended and challenge is also made to this order-dated 31-3-2006 - Annexure P/8. 2. Facts that have come on record indicate that petitioner is a Graduate having obtained a BA Degree from Awadesh Pratap Singh University, Rewa, in the year 1986. He was appointed as a Moharir vide order-dated 25-2-1980 in the establishment of Nagar Panchayat Niwadi, District Tikamgarh. It is the case of the petitioner that he had performed his duties to the best of his ability and there was nothing adverse against him. His case was also to be considered for promotion, but for some reason or the other he was not promoted. Be it as it may be, it is stated by Smt. Amrit Ruprah, learned counsel for the petitioner, that petitioner is shown to have been compulsorily retired in public interest, but for doing so there is nothing to indicate that the overall service record of the petitioner was assessed and thereafter the impugned action taken treating the petitioner to be a dead-wood. Referring to Annual Confidential Report of the petitioner for the years 2002-2004, collectively filed by the respondents as Annexure R/1, learned counsel argues that these adverse entries were never intimated to the petitioner, they were not brought to his notice and action taken on the basis of the four isolated adverse entries that also without notice to the petitioner, is unsustainable. 3. It is stated by learned counsel for the petitioner that compulsory retirement can be undertaken only if the contract of appointment and the rules and regulations governing the appointment, contemplates a provision for the same. In the present case, it is stated that the respondents have not indicated any rule or regulation on the basis of which the impugned action is taken. In the present case, it is stated that the respondents have not indicated any rule or regulation on the basis of which the impugned action is taken. Apart from the fact that the statutory powers based on which the impugned action is taken is not brought to the notice of this Court, learned counsel emphasized that no material is adduced by the respondents on the basis of which the conclusion arrived at by the Municipal Council to treat the petitioner as dead wood is established from the material available on record. It is stated that an arbitrary decision is taken without evaluation of the entire service record in accordance with law and, therefore, the action impugned is unsustainable. 4. Respondents on being noticed have filed a reply and the reply filed by them is a cryptic reply, does not answer the objections raised by the petitioner, does not point out as to how and on what basis the opinion was formed with regard to the petitioner being a dead wood and the decision taken in public interest to compulsorily retire him. Except for contending in the return that the overall service record of the petitioner was wholly 'average' and 'unsatisfactory', not a single adverse entry report or material is adduced before this Court in support of the aforesaid contentions. Except for certain adverse entries that also filed by the petitioner, for the year 2002-04, there is nothing on record to indicate to this Court as to how and on what basis the assessment of service record is undertaken and the decision to compulsorily retire the petitioner arrived at. 5. Having heard learned counsel for the parties and on consideration of the rival contentions before evaluating the merit of the case in question, it may be appropriate to take note of the principles governing compulsory retirement of an employee in public interest. 6. Even though compulsory retirement is not a punishment and for taking action for compulsorily retiring a person, the principles of natural justice is not to be followed, but at the same time a decision taken to compulsorily retire a person has to be based on evidence and material on the basis of which the opinion to declare a person as dead wood is arrived at. If the decision is based on no material or evidence, the decision is termed as arbitrary and on such considerations the decision can be interfered with. This is the principle laid down by the Supreme Court in the case of M S. Bindra vs. Union of India, 1999(1) LLJ 923 (SC). Similar views have been taken by the Supreme Court in various cases like y. P. Singh vs. State of Bihar, (2001) 2 SCC 2305; and, the law relating to compulsory retirement and the principle to be followed is crystallized in the case of State of Gujarat vs. Umedbhai M. Patel, (2001) 3 SCC 314 . If the principle laid down in the case of Umedbhai M. Patel (supra) is taken note, the law is laid down by the Supreme Court in the following manner, in paragraph 11, as under : "11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized thus :- (i) Whenever the services 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 excommunicated 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." (Emphasis supplied) 7. The aforesaid judgment clearly stipulates that compulsory retirement can be resorted to in public interest, but the decision to compulsorily retire an employee should be taken after assessing his entire service record and when it is found on such assessment that his utility to the department is not at all existing or that he is a dead wood. The aforesaid judgment clearly stipulates that compulsory retirement can be resorted to in public interest, but the decision to compulsorily retire an employee should be taken after assessing his entire service record and when it is found on such assessment that his utility to the department is not at all existing or that he is a dead wood. It is based on the aforesaid principle that compulsory retirement can be done. 8. In the case of Baikuntha Nath Das and another vs. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299 , it has been held by the Supreme Court that an order to compulsorily retire an employee has to be arrived at on the basis of subjective satisfaction of the Government/competent authority. When the subjective satisfaction of the competent authority is required to be recorded for taking the action, the subjective satisfaction has to be based on due appreciation of the documents and other material forming the subject-matter for scrutiny of the service record. In the absence of scrutiny of the service record and the basis for arriving at the subjective satisfaction being established or demonstrated before this Court, the action impugned which is without any material, has to be termed arbitrary and unjustified and is liable to be interfered with. 9. If the case in hand is analysed and evaluated in the backdrop of the aforesaid principle, it would be seen that except for contending in the return that the petitioner's service record was 'not satisfactory' or it was 'below average', nothing is brought to the notice of this Court as to what was the adverse material against the petitioner, what was the basis for taking the decision to compulsorily retire him and even the fact as to whether the matter was referred to a Screening Committee, for scrutiny is not pointed out. It is common ground that the Department of General Administration, Government of Madhya Pradesh has issued various circulars and has laid down the guidelines and principles to be followed for compulsorily retiring an employee from service. These guidelines contemplate constitution of a Screening Committee, scrutiny of the entire service record by the Screening Committee and formation of an opinion based on such scrutiny with regard to the employee's utility in the department or otherwise. These guidelines contemplate constitution of a Screening Committee, scrutiny of the entire service record by the Screening Committee and formation of an opinion based on such scrutiny with regard to the employee's utility in the department or otherwise. In the present case, except for contending that the decision is taken, no material relevant for taking the decision is brought to the notice of this Court nor is the decision making process itself indicated to this Court. It is not known as to who took the decision, how the decision was taken, what was the basis for taking the decision and before the decision was taken what procedure was followed. In sum and substance, the entire action is taken in an arbitrary and illegal manner, which is wholly unjustified and cannot be approved by this Court. 10. The decision to compulsorily retire the petitioner in public interest has to be undertaken if it is found that his entire service record is so bad that he is a dead wood in the department and his utility to the department is not at all worth continuing him in the department. In the present case, no material is adduced before this Court to show that the petitioner's utility to the department is no more required or that he is a dead-wood. In fact the respondents have miserably failed before this Court to justify their action and to demonstrate as to how the decision was taken. The decision to compulsorily retire an employee has to be taken on due assessment of the material, particularly the service record of the employee and in the absence of the material and service record being assessed properly, the entire action is liable to be quashed by this Court, as it amounts to an arbitrary decision. 11. Accordingly, in the facts and circumstances of the case, finding the action taken by the respondents to be wholly unsustainable, this petition is allowed. Impugned notice and order-dated 31-3-2006 -- Annexure P/8 are quashed. Respondents are directed to take back the petitioner in service and grant him all consequential benefits after deducting the post-retiral benefits already granted to him. The entire action for complying with the aforesaid order be taken within a period of two months from the date of receipt of certified copy of this order. 12. Petition stands allowed and disposed of with the aforesaid. Petition allowed.