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2019 DIGILAW 1042 (ALL)

Arun Kumar v. State of UP

2019-04-23

RAJESH SINGH CHAUHAN

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JUDGMENT : RAJESH SINGH CHAUHAN, J. 1. Heard Sri Shobhit Mohan Shukla, learned counsel for the petitioner and Sri Vishal Verma, learned State Counsel for the State-respondents. 2. By means of this petition the petitioner has assailed the validity of notification dated 14.6.2018 issued by the Principal Secretary, Department of Forest and Wild Life, by means of which the petitioner has been compulsorily retired invoking the provisions of Fundamental Rule 56(c) providing him salary equivalent to the salary and allowances for the period of three months. 3. Learned counsel for the petitioner has assailed the aforesaid order of compulsory retirement dated 14.6.2018 on the ground that the Screening Committee has not properly examined the material in respect of service record of the petitioner and in the garb of simplicitor order the punitive order has been passed which is not permissible in the eyes of law. In support of his aforesaid argument the learned counsel for the petitioner has cited couple of judgments of the Hon'ble Apex Court and this Court. The details thereof is being indicated herein below: "1. (Smt.) S.R. Venkatraman Vs. Union of India and another, (1979) AIR SC 49, 2. Mukesh Kumar Agarwal vs. State of U.P. and others, (2009) 13 JT 643 SC, 3. Somesh Tiwari vs. Union of India and others, (2009) 2 SCC 592 , 4. HMT Ltd. and another vs. Mudappa and others, (2007) 3 JT 112 SC, 5. Baikuntha Nath Das Vs. Chief District Medical Officer, Baripada, (1992) 2 SCC 299 . 6. State of U.P. and othrs vs. Abhai Kishor Masta, 1995 1 SCC 366 , page 8, 7. State of U.P. vs. Madan Mohan Nagar, (1967) AIR SC 1260 passed by Constitution Bench, Para 13 and 14, 8. Judgment and order dated 24.5.2018 passed in W.P. No. 22687(S/S) of 2017, Mukhtar Ahmad Vs. State of U.P. & others, 9. Judgment and order dated 1.3.2007 passed in Writ Petition No. 34272 of 2005, Bhagwan Das vs. State of U.P. and others. 4. The aforesaid judgments are either relating to malice in law or related to the arguments of learned counsel for the petitioner that in the present case the compulsory retirement order is absolutely unwarranted and uncalled for. 5. Judgment and order dated 1.3.2007 passed in Writ Petition No. 34272 of 2005, Bhagwan Das vs. State of U.P. and others. 4. The aforesaid judgments are either relating to malice in law or related to the arguments of learned counsel for the petitioner that in the present case the compulsory retirement order is absolutely unwarranted and uncalled for. 5. Per contra, learned counsel for the State-respondents has tried to defend the impugned order of compulsory retirement dated 14.6.2018 submitting that while considering the service record of the incumbent the competent authority may very well look into the entire service record of the incumbent and there is no legal restriction to look into only record of last 10 years. He has also submitted that it is not necessary, as per law, that if the incumbent has been awarded major punishment only then the order of compulsory retirement would be issued but even if the incumbent has been awarded minor punishment and his/her service record indicates that his continuity in service would not be purposeful and he is like dead-wood, order of compulsory retirement may be passed. Learned counsel for the State-respondent has demonstrated the subjective satisfaction of the screening committee wherein the entire service record of the petitioner has been considered, therefore, Sri Vishal Verma has submitted with vehemence that there is no infirmity or illegality in the compulsory retirement dated 14.6.2018. Sri Verma has placed reliance of the judgment of Hon'ble Apex Court as under: (1) Baikuntha Nath Das Vs. Chief District Medical Officer, Baripada, (1992) 2 SCC 299 (2) State of Punjab vs. Gurdas Singh, (1998) 4 SCC 92 , (3) The judgment of Division Bench of this Court dated 14.2.2017 passed in Service Single No. 2051 of 1996: State of U.P. vs. Udai Pratap Singh. 6. Sri Shobhit Mohan Shukla, learned counsel has drawn attention of this Court towards Annexure A-1 of C.M. Application No. 133747 of 2018 : application for disposal of application for interim relief, filed on 29.11.2018 supported with affidavit. Annexure A-1 thereof is office memo dated 17.7.2018 issued by the Principal Secretary of the Department resorting to Regulation 351-A of Civil Service Regulations in respect of inquiry initiated against the petitioner on 20.12.2007. 7. Annexure A-1 thereof is office memo dated 17.7.2018 issued by the Principal Secretary of the Department resorting to Regulation 351-A of Civil Service Regulations in respect of inquiry initiated against the petitioner on 20.12.2007. 7. The bare perusal of the aforesaid office memo dated 17.7.2018 reveals that the competent authority is willing that the full fledged inquiry be conducted and concluded against the petitioner strictly in accordance with law and for that the necessary approval from Hon'ble Governor has been received, as indicated in the aforesaid office memo dated 17.7.2018 itself. 8. After perusing the aforesaid office memo dated 17.7.2018, I find that considering the culpability of the petitioner and the gravity of the charges, so levelled against him, the Department is of the view that the full fledged departmental inquiry should be conducted and concluded to its logical end. Not only the above while perusing the material upon which the subjective satisfaction of the department has been arrived to retire the petitioner compulsorily some more matters are pending against the petitioner in which no final conclusion has been drawn. Further, as many as three criminal cases are pending against the petitioner wherein no final decision has been taken. 9. Considering the peculiar facts and circumstances of the issue in question I am of the considered view that the order of compulsory retirement may not be short-cut to avoid departmental inquiry. Further more, the order of compulsory retirement should not be passed, if there is sufficient material with the department to conduct and conclude full-fledged departmental inquiry and there may be likelihood for imposing any major punishment. The order of compulsory retirement may not be a camouflage to circumvent the departmental proceedings. This is trite law that the order of compulsory retirement may not be an order of disguised dismissal, at the same time by way of compulsory retirement the person may not be set free from the departmental trial, if it is so warranted in the interest of justice. 10. The Hon'ble Apex Court in the case of State of Gujarat vs. Umedbhai M. Patel, (2001) 3 SCC 314 , vide judgment and order dated 27.2.2001 and in re : M.P. State Co-Operative Dairy Federation Ltd. vs. Rajnesh Kumar Jamindar, (2009) 15 SCC 221 , vide judgment and order dated 15.4.2009 has considered more or less the identical issue. 10. The Hon'ble Apex Court in the case of State of Gujarat vs. Umedbhai M. Patel, (2001) 3 SCC 314 , vide judgment and order dated 27.2.2001 and in re : M.P. State Co-Operative Dairy Federation Ltd. vs. Rajnesh Kumar Jamindar, (2009) 15 SCC 221 , vide judgment and order dated 15.4.2009 has considered more or less the identical issue. The Hon'ble Apex Court in re: Rajnesh Kumar Jamindar (supra) vide para 37 has followed para 11 of Umedbhai M. Patel (supra), which is as under : "11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised 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 un-communicated 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." 11. Having heard the learned counsel for the respective parties and perusing the material available on record, I find that since the Hon'ble Apex Court vide aforesaid para 11 (iv) has clearly held that the order of compulsory retirement shall not be passed as a short-cut to avoid departmental inquiry when such course is more desirable, therefore, the impugned order of compulsory retirement dated 14.6.2018 is unwarranted and uncalled for. In the present case the view of the competent authority i.e. the Principal Secretary of the Department is that the departmental inquiry should be conducted and concluded against the petitioner to its logical end, therefore, the necessary approval under 351A of CSR has been resorted to and the necessary approval has been granted to the department. Therefore, in view of the aforesaid facts and also in the light of the dictum of Hon'ble Apex Court in re: M.P. State Co-Operative Dairy Federation Ltd. vs. Rajnesh Kumar Jamindar, (2009) 15 SCC 221 , and State of Gujarat vs. Umedbhai M. Patel, (2001) 3 SCC 314 the notification dated 14.6.2018 (Annexure no. 1 to the writ petition) is liable to be quashed and accordingly order dated 14.6.2018 (Annexure no. 1 to the writ petition) is hereby quashed. 12. The opposite parties are directed to reinstate the petitioner in service with all consequential service benefits. Since this order has been passed for the reason that the competent authority of the department i.e. Principal Secretary is willing to conduct and conclude the departmental inquiry against the petitioner to its logical end, therefore, such exercise may be carried out against the petitioner strictly in accordance with law following the principles of natural justice and the endeavour of the department should be to conclude the departmental proceedings against the petitioner with expedition and accordingly the final order, if any, may be passed with promptness following the due procedure of law. 13. Accordingly, the writ petition is allowed. 14. No order as to costs.