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2015 DIGILAW 227 (ALL)

ARUN KUMAR ARYA v. STATE OF U. P.

2015-02-05

YASHWANT VARMA

body2015
JUDGMENT Hon’ble Yashwant Varma, J.—Heard Shri R.K. Chaube, learned counsel for the petitioner and Shri Samir Sharma for the contesting respondent No. 2. The challenge in the present petition is to an order dated 16.9.2014, passed by the District Judge, Gorakhpur compulsorily retiring the petitioner from service. 2. The brief facts relevant for deciding the present writ petition are as follows: the petitioner was appointed as a “Clerk” in the District Judgeship of Gorakhpur on 1.6.1991. He has on date completed 20 years of service. It appears that the District Judge, Gorakhpur reviewing the employee profile of the Judgeship, constituted a Screening Committee which was tasked with reviewing the work and conduct of various employees in the judgeship who had completed 20 years of qualifying service. The aforesaid Committee appears to have submitted a report for consideration of the District Judge on 11.9.2014. Amongst other recommendations made by the said Committee, it recommended the petitioner being compulsorily retired from service in accordance with the provisions of Fundamental Rule 56. Upon receipt of the said report the District Judge, Gorakhpur passed an order dated 16.9.2014 compulsorily retiring the petitioner. It is aggrieved by the aforesaid order that the instant writ petition has been preferred. 3. Learned counsel for the petitioner has submitted that the impugned order is clearly punitive and in fact amounts to double jeopardy. This submission has been made in the backdrop of the various departmental proceedings instituted against the petitioner right from 1999 up to 2014 and the various penalties imposed upon him in the course of and consequent to the said enquiries. 4. Learned counsel for the petitioner submitted that since he had already been visited with penalties pursuant to the culmination of the said enquiries, taking the same into account for the purposes of exercise of power under Fundamental Rules, 56 clearly amounted to the petitioner being penalised twice over. It is in this context that the learned counsel for the petitioner has perhaps invoked the principles of double jeopardy. 5. Learned counsel for the petitioner further submitted that the impugned order dated 16.9.2014, and a reading thereof clearly establishes that the District Judge, Gorakhpur had failed to apply his independent mind and has blindly followed the recommendations made by the Screening Committee. 6. 5. Learned counsel for the petitioner further submitted that the impugned order dated 16.9.2014, and a reading thereof clearly establishes that the District Judge, Gorakhpur had failed to apply his independent mind and has blindly followed the recommendations made by the Screening Committee. 6. To buttress his submission, learned counsel for the petitioner has relied upon the judgements rendered by this Court in Chandar Prasad Verma v. State of U.P., 2006 (4) ADJ 202 and Naresh Chandra Sharma v. State of U.P. and another, 2006 (3) AWC 2743 . 7. Shri Samir Sharma, learned counsel appearing for the contesting respondent No. 2, opposing the writ petition has submitted that a perusal of the impugned order clearly shows that the District Judge, Gorakhpur has taken into consideration the entire service record of the petitioner and it is upon a holistic view formed upon a perusal of the entire service record of the petitioner that the District Judge, Gorakhpur exercised power under Fundamental Rule 56. He further submitted that the order of compulsory retirement of the petitioner in any view of the matter can be challenged only on the limited grounds of perversity and malafides. He therefore, contended that in the absence of any such allegations in the writ petition, the same was liable to be dismissed. 8. Having considered the rival submissions, I am of the opinion that the impugned order suffers from no legal infirmity. A bare perusal of the order passed by the District Judge, Gorakhpur shows that the entire service record of the petitioner was independently scrutinised by the said Authority and it was upon an overall assessment of the efficiency and conduct of the petitioner that he came to the conclusion that the petitioner be compulsorily retired. This he did taking into consideration the various Departmental Enquiries instituted against the petitioner as well as the various adverse entries recorded in his character roll, the fact that the petitioner had been warned on various occasions and was given an opportunity more than once to mend his conduct. The subjective satisfaction formed by the District Judge came to be formed on the above material and it was on that basis that he ultimately came to the conclusion that the petitioner was clearly inefficient and that his continuance in the Judgeship would not be in public interest. 9. The subjective satisfaction formed by the District Judge came to be formed on the above material and it was on that basis that he ultimately came to the conclusion that the petitioner was clearly inefficient and that his continuance in the Judgeship would not be in public interest. 9. The submission of the learned counsel for the petitioner that the District Judge has not applied his independent mind is also not worthy of acceptance. An ex facie perusal of the order impugned shows that the District Judge, Gorakhpur has proceeded to act independently in the matter and has not chosen to blindly accept the report of the Screening Committee. The recitals in the impugned order themselves establish independent application of mind by the District Judge, Gorakhpur. If any evidence in this regard were at all additionally required, the same would be evident from the fact that the District Judge, Gorakhpur also took into consideration the report submitted against the petitioner in Departmental Enquiry No. 59/2012. This material, as is recorded in the order impugned, was not even present before the Screening Committee. 10. An order of compulsorily retirement is not a punishment nor is it stigmatic. It does not visit an employee with evil consequences. It only represents the subjective satisfaction recorded by the employer with regard to the suitability of the employee and whether on the basis of his work and conduct the employer is satisfied that he is not a burden on the Department, not “dead wood” or that his continuance is not in public interest. The Apex Court in Rajasthan State Road Transport Corporation and others v. Babu Lal Jangir, (2013) 10 SCC 551 , was pleased to reiterate the law on the subject in the following words : “27. It hardly needs to be emphasized that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non application of mind, mala fide, perverse, or arbitrary or if there is non-compliance with statutory duty by the statutory authority. Power to retire compulsorily, the Government servant in terms of service rule is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. (See: AIR 1992 SC 1368 )” 11. Power to retire compulsorily, the Government servant in terms of service rule is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. (See: AIR 1992 SC 1368 )” 11. This Court finds that the facts of this case, when viewed in light of the settled legal position enunciated above, clearly do not warrant any interference with the impugned order. Since an order of compulsory retirement is not a punishment, the argument of the Petitioner of the order being stigmatic is also liable to be rejected. 12. Insofar as the judgment of this Court in Chandar Prasad Verma (supra) is concerned, suffice it to state that the said judgement is clearly distinguishable inasmuch as the judgment of this Court records that in the said case the opinion to compulsorily retire the petitioner therein was formed on the basis of a single adverse entry. Such is not the position here. As has been noticed above, the petitioner was not only subjected to multiple disciplinary proceedings right from 1999 to 2014, there were various adverse entries existing on his character roll and as is recorded in the impugned order he had also been warned on numerous occasions. These facts which clearly distinguish the present case from that of Chandar Prasad Verma are not disputed by the learned counsel for the petitioner in the writ petition. 13. The argument of double jeopardy urged by the Petitioner is only being noticed to be rejected. The principle of double jeopardy enshrined in Article 20 (2) of the Constitution of India only mandates that no person shall be punished or prosecuted for the same offense twice. This principle can obviously have no application in the case of compulsory retirement inasmuch as the same is not the imposition of a punishment. 14. Insofar as the dictum in Naresh Chandra Sharma (supra) goes, let it be said that this Court does not dispute the general proposition enunciated in the said judgement that circumstances must indicate that the Government has itself applied its mind to all the relevant materials and was satisfied that the concerned Government servant had became dead wood. This Court also does not dispute the proposition that the subjective satisfaction cannot be a matter of delegation and the satisfaction of the Screening Committee cannot be the satisfaction of the Government. 15. This Court also does not dispute the proposition that the subjective satisfaction cannot be a matter of delegation and the satisfaction of the Screening Committee cannot be the satisfaction of the Government. 15. The issue, however, as to whether there is or has been application of mind is one which would depend on the facts of each case. As has been noticed herein above, the order of the District Judge, Gorakhpur in no manner indicates that the Authority accepted the report of the Screening Committee as an ipse-dixit. The District Judge, Gorakhpur has independently applied his mind to the entire service record of the petitioner and it was upon his overall assessment of the suitability of the petitioner to continue to work in the judgeship that the order of compulsorily retirement came to be passed. In light of the aforesaid, this Court finds no merit in the present writ petition and it is, accordingly, dismissed. ——————