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2018 DIGILAW 654 (ALL)

MUKHTAR AHMAD v. STATE OF U. P.

2018-03-19

RAJESH SINGH CHAUHAN

body2018
JUDGMENT Hon’ble Rajesh Singh Chauhan, J.—Heard Sri H.G.S. Parihar, learned Senior Advocate assisted by Sri Ajendra Pratap Singh, learned counsel for the petitioner and Sri Rajiv Srivastava, learned counsel for the respondents. 2. By means of this petition the petitioner has impeached the order dated 31.8.2017 passed by the Vice Chairman, Lucknow Development Authority, Lucknow whereby the order of compulsory retirement under Rule 56(C) of Financial Hand Book, Vol.-II, Part 2 to 4 has been passed against the petitioner. 3. The main ground to assail the aforesaid order is that there was no valid material before the competent authority to arrive at the conclusion that the petitioner has become the dead-wood to be chopped off. It has also been submitted that there was no material in the entire service record of the petitioner for the subjective satisfaction of the Authority concerned so as to come to the conclusion that the petitioner should be compulsorily retired. The learned counsel for the petitioner has also submitted that in his entire service, no punishment order has been passed against him, therefore, there was no adverse material with the department to pass the impugned order of compulsory retirement. 4. The brief facts of the case are that the petitioner was working on the post of Supervisor (Amin) in the Lucknow Development Authority. As per learned counsel for the petitioner, the work and conduct of the petitioner has been satisfactory, up to the entire satisfaction of the Authority concerned. The learned counsel for the petitioner has drawn attention of this Court towards Annexure No. 7 which is a confidential character roll of the petitioner. The perusal thereof reveals that for the year 2009-10, 2010-11 and 2011-12 the work and conduct of the petitioner has been appreciated by the competent authority and his integrity was certified by awarding him an entry as ‘Utkrista’. 5. Learned counsel for the petitioner has also drawn the attention of the Court towards Annexure No. 8 which is a confidential character roll of the petitioner wherein the work and conduct of the petitioner has been appreciated by the competent authority and his integrity was certified by providing him entry as ‘Uttam’. The aforesaid entry was provided to the petitioner for the period w.e.f. 1.4.2013 to 31.3.2014. The aforesaid entry was provided to the petitioner for the period w.e.f. 1.4.2013 to 31.3.2014. Likewise, the Annexure No. 9 is also confidential character roll of the petitioner for the period July, 2014 to October, 2014 whereby the competent authority has appreciated the work and conduct of the petitioner and his integrity was certified by providing entry as ‘Utkrista’. 6. On the strength of aforesaid confidential character roll entries the learned counsel for the petitioner has submitted that it cannot be said that the petitioner is a dead-wood for the department. 7. Learned counsel for the petitioner has drawn the attention of the Court towards Annexure No. 10 which is said to be Screening Committee Report filed against the petitioner whereby the recommendation for his compulsory retirement has been made. It has been submitted that the bare perusal of the aforesaid report reveals that there was no material before the authority concerned for recommending the name of the petitioner for compulsory retirement. The aforesaid report says that the petitioner was placed under suspension on 11.11.1999, 20.5.2000, 31.12.2002 and 12.2.2009 in respect of different matters and in all the matters he was reinstated in service. However, no inquiry in all the aforesaid matters have been conducted and no punishment of any kind whatsoever either minor or major, has been given to the petitioner. However, vide last reinstatement order dated 19.11.2009 a serious warning was given to the petitioner with the further direction that he shall not be paid salary for the suspension period w.e.f. 12.2.2009 to 19.11.2009. 8. Learned counsel for the petitioner has also drawn the attention of the Court towards Annexure No. 11 which were Government Orders dated 26.10.1985, 6.2.1989, 21.5.1998, 23.9.2000 and 6.7.2017 whereby the guidelines have been given pursuant to which the employee concerned may be retired compulsorily. As per the Government Order dated 26.10.1985, one screening committee would be constituted and the service-book/confidential character roll of the employee for last 10 years would be examined. The other Government Orders are more or less the same which provide that before passing the order of compulsory retirement the character-roll of the employee concerned would be examined and on the basis of service record of the petitioner for last 10 years the order of compulsory retirement can be passed. 9. The other Government Orders are more or less the same which provide that before passing the order of compulsory retirement the character-roll of the employee concerned would be examined and on the basis of service record of the petitioner for last 10 years the order of compulsory retirement can be passed. 9. In the case of the petitioner his character-roll w.e.f. 2009 to 2014 is satisfactory and as per the screening report prepared by the Lucknow Development Authority for passing order of compulsory retirement against the employees of the Lucknow Development Authority including the petitioner, no adverse material has been mentioned against the petitioner except four suspension orders wherein no punishment order has been passed and one First Information Report wherein the petitioner has not been held guilty as yet since trial is still to conclude. 10. The learned counsel for the petitioner, therefore, has submitted that the impugned punishment order dated 31.8.2017 is patently illegal, arbitrary, discriminatory and uncalled for and the same is violative of Articles 14, 16, 21 and 311(2) of the Constitution of India besides being violative of principles of natural justice. Thus, he submitted that this writ petition may be allowed and the impugned order dated 31.8.2017 may be quashed. 11. Per contra, Sri Rajiv Srivastava ‘Raja’ has submitted that prior to taking decision of compulsory retirement of the petitioner, the screening committee has gone through the whole service records of the petitioner and after taking into consideration the material available on record, recommended compulsory retirement of the petitioner in the public interest. Learned counsel for the respondents referred the contents of screening committee which is enclosed as Annexure No. 10 to the writ petition. 12. Learned counsel for the respondents has also submitted that the order of compulsory retirement is not punishment and the petitioner would be getting his all post-retiral benefits, therefore, this Court should not interfere in the order of compulsory retirement under Article 226 of the Constitution of India. 13. By placing the aforesaid submission, learned counsel for the Lucknow Development Authority has submitted that the instant writ petition may be dismissed. 14. The learned counsel for the petitioner has filed rejoinder-affidavit to the counter-affidavit filed by the Lucknow Development Authority denying the submissions of the counter-affidavit and reiterating the contents of the writ petition. 15. 13. By placing the aforesaid submission, learned counsel for the Lucknow Development Authority has submitted that the instant writ petition may be dismissed. 14. The learned counsel for the petitioner has filed rejoinder-affidavit to the counter-affidavit filed by the Lucknow Development Authority denying the submissions of the counter-affidavit and reiterating the contents of the writ petition. 15. I have heard the rival submissions of the counsel for the parties and perused the relevant records. 16. The Hon’ble Apex Court in the case of State of Gujarat and another v. Suryakant Chunilal Shah, (1999) 1 SCC 529 , has held that the judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. It has further been held that the performance of the Government servant is reflected in the Annual Character Roll entries and, therefore, one of the methods of discerning the efficiency, honesty or integrity of a Government servant is to look at his character roll entries for the whole tenure from the inception to the date on which the decision for his compulsory retirement is taken. 17. By means of the aforesaid judgment, the Hon’ble Apex Court has interpreted the term “public interest”. As per the Hon’ble Apex Court, the “public interest” is the primary consideration for issuing the order of compulsory retirement inasmuch as only honest and efficient persons are to be retained in service while dishonest, corrupt and the dead wood should be dispensed with. Efficiency and honesty is to be assessed on the basis of material on record, of which confidential reports are an important input and integrity of the employee should not be doubtful. The relevant paras of the aforesaid judgment are paras-19, 20, 21, 22, 23, 24 and 27, which are being reproduced here-in-below : “19. The Court, however, added that the opinion must be based on the material on record otherwise it would amount to arbitrary or colorable exercise of power. It was also held that the decision to compulsorily retire an employee can, therefore, be challenged on the ground that requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision. 20. In. It was also held that the decision to compulsorily retire an employee can, therefore, be challenged on the ground that requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision. 20. In. S.R. Venkataraman v. Union of India, (1979) 2 SCC 491 , this Court held the order of compulsory retirement as a gross abuse of power as there was nothing on the record to justify and support the order. 21. In Baldeo Raj Chaddha v. Union of India, (1980) 4 SCC 321 , it was held that although the purpose of FR 56 was to weed out worthless employees without punitive extremes, if, under the guise of “public interest”, an order of premature retirement is made for any other purpose, it would be the surest menace to public interest and the order must fail for unreasonableness, arbitrariness and “disguised dismissal”. 22. Baikuntha Nath’s case (supra) was considered by this Court in M.S. Bindra v. Union of India and others, JT 1998 (6) SC 34 and it was laid down as under: “Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the conext of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into.” It was further observed as under: “13. While viewing this case from the next angle for judicial scrutiny, i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that form the available materials no reasonable man would reach such a conclusion. 23. While viewing this case from the next angle for judicial scrutiny, i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that form the available materials no reasonable man would reach such a conclusion. 23. In order, therefore, to find out whether any Government servant has outlived his utility and is to be compulsorily retired in public interest for maintaining an efficient administration, an objective view of overall performance of that Government servant has to be taken before deciding, after he has attained the age of 50 years, either to retain him further in service or to dispense with his services in public interest, by giving him three months’ notice or pay in lieu thereof. 24. The performance of a Government servant is reflected in the annual character roll entries and, therefore, one of the methods of discerning the efficiency, honesty of integrity of a Government servant is to look to his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon his integrity, such a Government servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of “Integrity”. It this is missing the whole bundle would disperse. A Government servant has, therefore, to keep his belt tight. 27. The whole exercise described above would, therefor, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a Government Servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal case pertaining to the grant of permits in favour of take and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a Court of law and the truth has to be found out ultimately by the Court where the prosecution is ultimately conducted. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a Court of law and the truth has to be found out ultimately by the Court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee.” 18. In the light of the aforesaid observation and directions of the Hon’ble Apex Court, the order of compulsory retirement against the petitioner should have not been issued and more particularly vide para-27 of the judgment in re: Suryakant Chunilal Shah (supra), the Hon’ble Apex Court has held that involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in the Court of law and the truth has to be found out ultimately by the Court where the prosecution is ultimately conducted. In this case also the trial against the petitioner has not been concluded as intimated by the counsel for the parties. 19. The Hon’ble Apex Court in re: S. Ramachandra Raju v. State of Orissa, 1994 (Supp.) (3) SCC 424, has held that the subjective satisfaction must be based on adverse material of the incumbent. The relevant para of the aforesaid judgment is para-8, which is being reproduced here-in-below : “8. In Baikuntha Nath Das v. Chief District Medical Officer, [1992] 2 SCC 299, a bench of three Judges of this Court was to consider whether Uncommunicated adverse remarks would be considered to order compulsory retirement. This Court considering the scope of Fundamental Rule 56(j) on the anvil of administrative law, held that the order of compulsory retirement has to be passed on forming the opinion that it is in the public interest to retire a Government servant compulsorily Though the order is passed on the subjective satisfaction of the Government, tie Government or the Review Committee 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 so considered would naturally include the entries in the confidential records Character rolls, both favourable and adverse. The order of compulsory retirement is not liable to be quashed on mere showing that while passing it uncommunicated adverse remarks were taken into consideration. Further this does not mean that judicial scrutiny is excluded altogether. Though the Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is mala fide or passed on no evidence or that is arbitrary, in the sense that no reasonable person would form the requisite opinion or the given material, in short, if it is found to be a perverse order, the remedy under Article 226 is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions.” 20. Learned counsel for the Lucknow Development Authority has referred the judgment of Hon’ble Apex Court in Rajasthan State Road Transport Corporation and others v. Babu Lal Jangir, 2013 (1) SCC 551; submitting that the order of compulsory retirement is not punitive or stigmatic order and the judicial scrutiny is not permissible. Though the aforesaid order of the Hon’ble Apex Court has been cited against the petitioner but by means of the aforesaid judgment of Hon’ble Apex Court the entire law in respect of compulsory retirement has been examined and the relevant dictums of Hon’ble Apex Court has been considered and referred. 21. By means of the aforesaid judgment of the Hon’ble Apex Court, the settled proposition of law in re: Baikuntha Nath Das v. District Medical Officer, (1992) 2 SCC 299 , has been considered. 22. Learned counsel for the petitioner has also cited the judgment of Baikuntha Nath Das (supra) inasmuch as in the case of Suryakant Chunilal Shah (supra), the Hon’ble Apex Court has referred the judgment of Baikuntha Nath Das (supra) in paras-16 and 22 of the judgment. 23. Learned counsel for the Lucknow Development Authority has referred paras-24 & 27 of the judgment of Babu Lal Jangir (supra), which are being reproduced here-in-below. “24. Having taken note of the correct principles which need to be applied, we can safely conclude that the order of the High Court based solely on the judgment in the case of Brij Mohan Singh Chopra was not correct. “24. Having taken note of the correct principles which need to be applied, we can safely conclude that the order of the High Court based solely on the judgment in the case of Brij Mohan Singh Chopra was not correct. The High Court could not have set aside the order merely on the ground that service record pertaining to the period 1978-90 being old and stale could not be taken into consideration at all. As per the law laid down in the aforesaid judgments, it is clear that entire service record is relevant for deciding as to whether the Government servant needs to be eased out prematurely. Of course, at the same time, subsequent record is also relevant, and immediate past record, preceding the date on which decision is to be taken would be of more value, qualitatively. What is to be examined is the “overall performance” on the basis of “entire service record” to come to the conclusion as to whether the concerned employee has become a deadwood and it is public interest to retire him compulsorily. The Authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the Authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee “rendered himself a liability to the institution”, there is no occasion for the Court to interfere in the exercise of its limited power of judicial review. 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 of 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.” 24. Interference is permissible only on the ground of non application of mind, mala fide, perverse, or arbitrary or if there is non-compliance of 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.” 24. In the instant case, the learned Standing Counsel for the Lucknow Development Authority could not demonstrate as to what material has been examined by the Screening Committee. It has not been demonstrated by learned counsel for the opposite parties that the petitioner was having adverse annual entries, punishment orders etc. To the contrary, as per service records of the petitioner as reflected in his confidential character roll w.e.f. the year 2009 to 2014, his performance of duties and conduct has been satisfactory; his integrity has been certified and he has been awarded ‘Utkrista’ or ‘Uttam’ entries for the said period. The perusal of the Screening Committee report reveals that on the basis of four suspension orders, which are admittedly not punishment and one First Information Report the petitioner has been retired compulsorily. Further more, no departmental inquiry was conducted against the petitioner pursuant to the aforesaid suspension orders. 25. On being asked from the learned counsel for the Lucknow Development Authority as to why the departmental enquiry was not conducted against the petitioner when four suspension orders have been issued against him, he was not able to reply the reasons and submitted that it was the decision of the then competent authority of the Lucknow Development Authority not to proceed further against the petitioner. In the light of the aforesaid submission this Court is bound to observe that it is a lapse on the part of the then competent authorities concerned who placed the petitioner under suspension for four times but said suspension order was revoked without conducting any departmental inquiry. Further, if the charges in suspension orders were not so serious then the incumbent/employee should have not been placed under suspension and if the charges were of such a nature wherein the departmental inquiry was not required then the suspension orders were punitive, which is not permissible in the eyes of law. Further, if the charges in suspension orders were not so serious then the incumbent/employee should have not been placed under suspension and if the charges were of such a nature wherein the departmental inquiry was not required then the suspension orders were punitive, which is not permissible in the eyes of law. Further, on the one hand the petitioner was lastly suspended on 12.2.2009 and on the other hand he has been awarded entry as ‘Uttam’ and by appreciating his performance, his integrity was certified for the said period. All the aforesaid series of facts are beyond the understanding of any sane person. The authority concerned may not be permitted to misuse the power of placing any employee under suspension for no cogent reasons. 26. Therefore, the recommendation against the petitioner in the instant case to make compulsory retirement is not simplicitor but is punitive in nature and resultantly, the order of compulsory retirement which has been issued pursuant to the aforesaid recommendation against the petitioner cannot be sustained in the eyes of law 27. In the light of the facts and circumstances of the issue, I find that the impugned order of compulsory retirement dated 31.8.2017, passed by the Vice-Chairman, Lucknow Development Authority is a punitive order and the same cannot be said to be a simpliciter order. Therefore, such order of compulsory retirement cannot be sustained in the eyes of law being illegal, arbitrary and unwarranted. 28. In view of the foregoing discussions, the writ petition deserves to be allowed. The writ petition is, therefore, allowed. The writ in the nature of certiorari is issued quashing the order dated 31.8.2017, passed by the Vice-Chairman, Lucknow Development Authority, Lucknow, which is contained as Annexure No. 1 to the writ petition, is issued. 29. A writ in the nature of mandamus is issued directing the Vice-Chairman, Lucknow Development Authority to reinstate the petitioner in service and allow him to discharge the duties of Supervisor (Amin) and he be paid his regular salary and other service benefits. It is also directed that the petitioner shall be deemed in continuous service from 31.8.2017 when the order of compulsory retirement was issued till his reinstatement in service and he shall be liable for all consequential service benefits including arrears of salary. 30. It is also directed that the petitioner shall be deemed in continuous service from 31.8.2017 when the order of compulsory retirement was issued till his reinstatement in service and he shall be liable for all consequential service benefits including arrears of salary. 30. The compliance of this order shall be made by the Vice-Chairman, Lucknow Development Authority within a period of three months from the date of production of certified copy of this order. 31. No order as to costs.