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2013 DIGILAW 47 (CHH)

RAJENDRA PRASAD SHARMA v. STATE OF M. P.

2013-02-04

SATISH K.AGNIHOTRI

body2013
ORDER 1. Challenge in this petition is to the legality and validity of the order dated 17.08.1999 (Annexure P/2) whereunder the petitioner was retired compulsorily in public interest, with payment of three month's salary in lieu of three month's notice under the provisions of Rule 42(1)(b) of the, then, M.P. Civil Services (Pension) Rules, 1976 (for short 'the Rules'). 2. The facts, in brief, as projected by the petitioner are that the petitioner joined the post of Lower Division Clerk (Assistant Grade III) by order dated 25.11.1967 in the establishment of District Court, Raipur. It is projected by the learned counsel for the petitioner that there was no adverse entry or remark against the petitioner, however, all of a sudden, in view of some misunderstanding, between the petitioner and the First Additional District Judge, adverse remarks was made in the Annual Confidential Report (for short 'the ACR') dated 04.08.1998. It is further submitted that for alleged mistake committed by the petitioner, the petitioner had tendered apology. Shri Pali further submits that the order of compulsory retirement which is impugned herein was passed not having regard to the over all service record of the petitioner as required under Rule 42 of the Rules, but only on the basis three entries i.e. for the year 1997, 1998 and 1999. In the entire service career of the petitioner for about 32 years, before the impugned order was passed, there was not a single adverse remark except the afore-stated, for which warning or advice was given. Thus, the entire exercise leading to passing of the impugned order of compulsory retirement is perverse, illegal and arbitrary and deserves to be set aside. 3. On the other hand, Shri Shrivastava, learned counsel appearing for the respondent No. 2 and 3 would submit that the petitioner has made vague, unspecific and wild allegations against the responsible judicial officers. There are number of adverse remarks in the service record of the petitioner and the Committee has considered the entire service record of the petitioner before taking the decision. The petitioner was given a strict warning in the enquiry by memo dated 16.08.1993 (Annexure R/1). There were as many as six adverse remarks recorded in his service record pertaining to the year 1976, 1981, 1987, 1997, 1998 and 1999 (Annexure R/2 to R/7). The petitioner was given a strict warning in the enquiry by memo dated 16.08.1993 (Annexure R/1). There were as many as six adverse remarks recorded in his service record pertaining to the year 1976, 1981, 1987, 1997, 1998 and 1999 (Annexure R/2 to R/7). The petitioner was found indisciplined and a troublesome employee as evident in the ACRs and his performance was found substandard and there was doubt about his integrity. Adverse remarks recorded in the year 1997 was duly communicated to the petitioner vide communication dated 21.01.1998 (Annexure R/8), remarks for the year ending 31st March, 1998 was also communicated by memo dated 10.08.1998 (Annexure R/5) and further adverse remarks for the year ending 31st March, 1999 was communicated to the petitioner on 18.06.1999 (Annexure R/16). The decision of compulsory retirement is neither arbitrary nor illegal or tainted by any mala fides. 4. On consideration of the rival submission made by learned counsel appearing for the parties and on perusal of the pleadings and documents appended thereto, it is evident that the Committee comprising of District & Sessions Judge, Raipur, as Chairman, 1st Additional District & Sessions Judge and 3rd Additional District & Sessions Judge, Raipur, as Members, considered the case of the petitioner on 23.04.1999 (Annexure R/ 19) on the date he had completed more than 25 years of service. The Committee considered the ACRs for the year 1997, 1998 and 1999. In the consideration, it was found that there was no reference of his past conduct, as afore stated by the respondent No. 2 and 3, except the adverse remarks made in the year 1997, 1998 and 1999. Thus, contention of the respondent No. 2 and 3 that the entire service career of the petitioner was considered by the Committee, is contrary to the facts on record and as such, the same is not correct. 5. On very careful perusal, this Court has not found anywhere that there is even mention of the earlier period except the period in question, as aforestated. In the last but one para, general observation was made that the employee was indisciplined, he does not comply with the orders of the Presiding Officers, and without permission, he always leaves Raipur for Baloda Bazar. In the last but one para, general observation was made that the employee was indisciplined, he does not comply with the orders of the Presiding Officers, and without permission, he always leaves Raipur for Baloda Bazar. Once he had left the premises unauthorisedly without leaving the key of the Almirah with any other authorized officer and thus, it was held that he has to be given compulsory retirement under the provisions of Rule 42(1)(b) of the Rules, from the post of Assistant Grade III. 6. There is no reference of any other adverse remark or memos in the minutes of the proceedings which was the basis of passing the impugned order. Even the third adverse remark for the year ending 31st March, 1999 which was taken into consideration by the Committee, was communicated to the petitioner on 18.06.1999, much after the decision was taken by the Committee. 7. Rule 42(1) (a) and (b) of the Rules, reads as under: "42. Retirement on completion of [20 years] qualifying service.- (1)(a) A Government servant may retire at any time after completing 20 years qualifying service, by giving a notice in Form 28, to the appointing authority at least three months before the date on which he wishes to retire or on payment by him of pay and allowances for the period of three months or for the period by which the notice actually given by him falls short of three months : Provided that where the Government servant giving such notice is under suspension, he shall not be allowed to retire from service without the prior permission in writing of the appointing authority. (b) The appointing authority may in the public interest require a Government servant to retire from service at anytime after he has completed [20 years qualifying service or he attains the age of 50 years whichever is earlier], with the approval of the State Government by giving him three months notice in Form 29 : Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing then immediately before his retirement or, as the case may be, for the period by which such notice falls short of three months. Note 1. Note 1. - Before a Government servant serves notice of retirement under clause (a) above, he should satisfy himself by means of a reference to the appointing authority that he has in fact, completed [20 years qualifying service or he attains the age of 50 years] for pension. Similarly the appointing authority, while giving notice of retirement to a Government servant under clause (b), above, should also satisfy itself, that the Government servant has, in fact, completed [20 years qualifying service or he attains the age of 50 years]. Note 2. - The period of notice of three months or notice period which is short of three months, as the case may be, shall be reckoned from the date on which it is signed and put in communication under registered post. Where the notice is served personally the period shall be reckoned from the date of receipt thereof. Note 3. - The Government servant, on submission of an application shall be granted such leave during the period of notice to which he is entitled according to the rules. Provided that no leave shall be granted beyond the expiry of the period of notice. Note 4. - The payment of pension for the period for which pay and allowances have been paid to a Government servant in lieu of notice, shall be regulated by the provision of sub-rule (2) of Rule 33 of these rules." 8. Rule 42 of the Rules provides that a Government servant may retire at any time after completing 20 years of qualifying service by giving a notice and it further provides for payment of salary in lieu of notice. Earlier, it was 25 years, but the same was reduced to 20 years, by subsequent amendment dated 30.05.2000. 9. It is pointed out by Shri Pali, in his written submission that the State Government had issued circular for compulsory retirement holding that the Committee will consider the entire service record of the Government servant before recommending for compulsory retirement. 10. The issue with regard to compulsory retirement of a Government servant has come up before the Supreme Court in several cases. The purpose of compulsory retirement is weeding out the dead wood and as such, the same is not penal in nature. 10. The issue with regard to compulsory retirement of a Government servant has come up before the Supreme Court in several cases. The purpose of compulsory retirement is weeding out the dead wood and as such, the same is not penal in nature. However, the same is subject to judicial review, if it is based on no material or is arbitrary or without application of mind and/or there is no evidence in support of the case. In the case on hand, the entire service career/record of the petitioner has not been taken into consideration before declaring the petitioner a dead wood and as such, he was weeded out. 11. Three Hon'ble Judges of the Supreme Court, in Baikunth Nath Das & Another Vs. Chief District Medical Officer, Baripada & Others (1992)2 SCC 299 ], have laid down the principle as under : "34. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) malafide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order. (iv) 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 of 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. The record to be so considered would naturally include the entries in the confidential records/ character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32." 12. The ratio laid down in Baikunth Nuth Das & Another (1992)2 SCC 299 was referred with approval in various cases, recently in the case of Rajendra Singh Verma (dead) through LRs. & Others Vs. Lieutenant Governor (NCT of Delhi) & Others (2011) 10 SCC 1 . 13. On analysis of the aforesaid facts, it is well established that the entire service record of the petitioner has not been considered, there was no evidence and also the order was arbitrary as no reasonable person would form the opinion merely on the materials present before the Committee. 14. During pendency of this petition, the petitioner has preferred an application being M(W)P No. 1970/2003, for payment of retrial benefits with interest thereupon, on account of delay in making the payment on 18.07.2003. This Court, after considering the said application passed the following order, on 30.07.2003. “..now the petitioner is directed to approach the office of the respondent No. 3 within a period of seven days and the respondent No. 3 will ensure that all forms are delivered to the petitioner. On receiving the forms, the petitioner will submit the same duly filled and completing all the formalities. Thereafter, the respondent No. 3 will consider his case, expedite the same, and grant the retrial benefits to the petitioner as early as possible. If the forms are not made available to the petitioner by the respondent No. 3 then the petitioner is at liberty to move this Court again with an affidavit to the effect that he approached the office of the respondent No. 3 but forms are not delivered to him." 15. If the forms are not made available to the petitioner by the respondent No. 3 then the petitioner is at liberty to move this Court again with an affidavit to the effect that he approached the office of the respondent No. 3 but forms are not delivered to him." 15. In view of the foregoing and for the reasons stated hereinabove, the order of compulsory retirement dated 17.08.1999 (Annexure P/2) is set aside. However, in the facts of the case, since the petitioner has even otherwise retired from service, the petitioner will be entitled to all the consequential benefits which he would have otherwise been entitled to, in the event he had retired in normal course. 16. In that event, the petitioner will be at liberty to approach the respondent No. 2 and 3 to submit forms complete in all respects for release of pensionary benefits with requisite information and documents. Thereafter, the authorities will pass order in accordance with law, as expeditiously as possible, preferably within a period of four weeks from the date of receipt of the form, if already not filed earlier. 17. Resultantly, the writ petition is allowed. 18. There shall be no order as to costs. Petition Allowed.