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2019 DIGILAW 792 (CHH)

S. P. DUBEY v. STATE OF CHHATTISGARH

2019-07-09

P.SAM KOSHY

body2019
JUDGMENT P Sam Koshy, J. - The challenge in the present writ petition is to the Annexure P-1 dated 12.09.2017 whereby the petitioner has been subjected to compulsory retirement. 2. The relevant facts of the case is that the petitioner was initially appointed as Forester in the year 1976 and during the course of the time considering his seniority and merit the petitioner was promoted to the post of Ranger vide order dated 30.12.2011. The petitioner had an unblemished service. According to the petitioner he has never been subjected to any punishment and that his last Five year's ACR also would show that petitioner had received four Very Good and one Good which by no stretch of imagination could be said to be one which is adverse and which could reflect that petitioner's performance in the department was on the decline and thus prayed for rejection of the impugned order of compulsory retirement and prayed for direction for the petitioner to be taken back in service and he be granted all consequential benefits. 3. On the contrary, respondent counsel opposing the petition drew the attention of the Court to the document exhibit R-2 filed along with reply wherein she reflects that petitioner in the past by his work caused loss to the department on various occasions and department also has taken action against the petitioner on quite a few occasion. State counsel further submits that taking into consideration the conduct of the petitioner which has been subjected to disciplinary proceedings frequently does not deserves to be retained in government employment and therefore the impugned order does not warrant any interference and prayed for rejection of the writ petition. 4. This Court vide its order dated 08.11.2017 had granted interim protection to the petitioner. By virtue of which the petitioner continued to work with the department till he attained the age of superannuation on 30.06.2018. In view of the fact that petitioner has worked till the age of superannuation, i.e. by virtue of the interim protection given by this Court now all that has to be seen is whether the order of compulsory retirement passed by the respondent was proper, legal and justified? 5. In view of the fact that petitioner has worked till the age of superannuation, i.e. by virtue of the interim protection given by this Court now all that has to be seen is whether the order of compulsory retirement passed by the respondent was proper, legal and justified? 5. The respondent in their reply have enclosed with a documents which shows last five years ACR and the grading that has been awarded to the petitioner for the year 2012, 2013, 2015 & 2016, the petitioner has received the grading "A" which is Very Good and for the year 2014 the grading awarded is "B" i.e. Good. Thus, in the previous five years of ACR the respondents have scrutinized the petitioner had only one Good and Four Very Good, yet he has been found not fit for government employment or has been treated as a dead wood. Overall, assessment would not bring the grading of the petitioner less than Good in any manner. Moreover, during the pendency of the writ petition, the respondent State Government themselves had passed two orders i.e. Annexure P-11 dated 28.04.2018 & Annexure P-10 dated 05.03.2019 whereby the respondent themselves have reached to the conclusion that earlier finding of the department dated 24.01.2017 whereby there was an order of recovery issued against the petitioner was uncalled for and the same has been cancelled. 6. Likewise, in Annexure P-10 again the authorities concerned have dropped the entire charge-sheet by issuing only an order of Censor against the petitioner. Thus, except for an order of censor, there was no other major punishment inflicted upon the petitioner during the recent past against the petitioner. 7. Given the aforesaid undisputed factual matrix of the case, it would be relevant at this juncture to refer to the parameters that have been laid down by the State Govt. before passing of the order of compulsory retirement. The State Govt. vide circular dated 25.04.2017 took a policy decision to consider the service of all those employees in each of the department of the State Govt. who have completed 20 years of service and have also crossed the age of 50 years so as to assess their suitability for retention in the government service. The State had formulated 8 major conditions to be considered so far as an employee is concerned. who have completed 20 years of service and have also crossed the age of 50 years so as to assess their suitability for retention in the government service. The State had formulated 8 major conditions to be considered so far as an employee is concerned. For the purpose of brevity the counsel for the petitioner himself submitted that so far as condition Nos. 2 to 6 and 8 as laid down by the State in their circular dated 25.04.2017 is concerned, those conditions are not relevant and are not questioned in the present writ petition. The petitioner is primarily banking on 1st and 7th condition of the circular to assail the impugned order of compulsory retirement. For ready reference, the condition Nos. 1 & 7 of the circular dated 25.04.2017 is being reproduced herein: 8. Given the aforesaid parameters/guidelines which have been laid down by the State, all that this court now has to see is whether the committee which had scrutinized the case of the petitioner did find any of these conditions against the petitioner by virtue of which he could have been placed with an order of compulsory retirement? 9. So far as condition No.1 is concerned, that deals with honesty and integrity of the employee/officer concerned. The State has failed to produce before this court any entry in the service book, service record or in the ACRs of the petitioner in the entire service period where the integrity reflects it as doubtful. Similarly, it is not a case of the State that health condition of the petitioner was not good enough for retaining him in service. So far as ground number (1) c & d are concerned, those pertains to overall assessment of the ACR of the employee/petitioner concerned. The State has not been able to produce before the court showing the entire entries or grading given to the petitioner in his service period. The only entries made available are five entries of previous five years consisting of one Good and Four Very Good which under no circumstances can be said to be a case where the petitioner's performance can be said to be on the decline. Further, in the last five years there is no major punishment which has been inflicted upon the petitioner. The overall assessment of last five years of entries would be Very Good if not Good. Further, in the last five years there is no major punishment which has been inflicted upon the petitioner. The overall assessment of last five years of entries would be Very Good if not Good. Thus, the condition No.1(d) also would go against the State so far as supporting the impugned order is concerned, coupled with the fact that the respondent-State has not disputed the contention of the petitioner that in his entire service career except for one or two Average grading in the ACR, the petitioner always have got either Good or Very Good grading in the ACR. 10. So far as condition No.7 is concerned, though no specific pleadings have been raised by the petitioner in the writ petition, but since it is also a condition stipulated in the circular dated 25.04.2017 for granting three months of salary in lieu of notice and the said salary should be paid along with the order of compulsory retirement. A plain reading of the impugned order dated 19.09.2016 would itself reveal that three months payment which the petitioner ought to have been given along with the order of compulsory retirement was not made. Rather, the document would show that there was a direction given to the department to ensure release of three months salary at the earliest, which by itself would make it clear that it was not paid along with order of compulsory retirement, but was ordered to be paid at the earliest which would again make it in contravention to condition No.7 of the circular dated 25.04.2017. 11. So far as law in respect of compulsory retirement is concerned, the Supreme Court as early as in in case of M.S. Bindra Vs. Union of India & Ors., (1998) 7 SCC 310 in paragraph 13 held 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 from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Firut Repente Turpissimus" (no one becomes dishonest all on a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity". 12. Again in case of Bishwanath Prasad Singh Vs. State of Bihar & Ors., (2001) 2 SCC 305 dealing on the issue of compulsory retirement held in paragraph 12 as under: "12. Compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent government servant consequent upon a finding of guilt being recorded in disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. Such compulsory retirement in the case of a government servant must also withstand the scrutiny of Article 311 of the Constitution. Then there are service rules, such as Rule 56(j) of Fundamental Rules, which confer on the Government or the appropriate authority, an absolute (but not arbitrary) right to retire a government servant on his attaining a particular age or on his having completed a certain number of years of service on formation of an opinion that in public interest it is necessary to compulsorily retire a government servant..........................So long as the opinion forming basis of the order for compulsory retirement in public interest is formed bonafide, the opinion cannot be ordinarily interfered with by a judicial forum. Such an order may be subjected to judicial review on very limited grounds such as the order being malafide, based on no material or on collateral grounds or having been passed by an authority not competent to do so." 13. Similar view has been taken by the Supreme Court in case of State of Gujrat Vs. Umedbhai M. Patel, (2001) 3 SCC 314 , where in paragraph 11 the parameters which have been crystallized by the Supreme Court and which is required to be taken note of while considering the case for compulsory retirement, has held 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 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 adverser entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated 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 made 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." 14. A plain perusal of the aforesaid parameters laid down by the Supreme Court would reveal that clause-(vii) shows that if an officer is given promotion despite of adverse entry, that factor would go in favour of the officer/employee. In the instant case, the record show that the petitioner was promoted on the post of Ranger. 15. Similar view has again been taken by the Supreme Court in case of MP Electricity Board Vs. In the instant case, the record show that the petitioner was promoted on the post of Ranger. 15. Similar view has again been taken by the Supreme Court in case of MP Electricity Board Vs. Shree Baboo, (2002) 9 SCC 704 , where taking into consideration the service records of the employee where there was nothing adverse and on the contrary the integrity of the employee was shown to be "Sound", the Supreme Court affirming the order of the High Court setting aside the order of compulsory retirement, held as under : "1......The very service record and the annual character roll for the year 1991-92 that was placed before us record his integrity to be sound and yet the Screening Committee came to the conclusion that his integrity is also not beyond doubt. There is absolutely not an iota of material to support the aforesaid conclusion of the Screening Committee and a conclusion not based on any materials is obviously justiciable and could be interfered with by a court of law. This being the position, and in the facts and circumstances of the case, we are satisfied that the High Court rightly interfered with the order of compulsory retirement and we see no infirmity with the said order so as to be interfered with by this court in exercise of power under Article 136 of the Constitution. We therefore dismiss this appeal." 16. The Supreme Court in case of Madhya Pradesh State Cooperative Dairy Federation & Anr. Vs. Rajnesh Kumar Jamindar & Ors., (2009) 15 SCC 221 , referring to all the previous decisions on the issue in paragraph 35 has summarized or laid down the situations under which the order of compulsory retirement could be interfered with, held as under : "35. The law relating to compulsory retirement in public interest is no long res integra. The provisions had been made principally for weeding out dead wood. An order of compulsory retirement being not penal in nature can be subjected to judicial review inter alia : i. when it is based on no material; ii. when it is arbitrary ; iii. when it is without application of mind; and iv. when there is no evidence in support of the case." 17. Recently again in case of Rajasthan State Road Transport Corporation and Ors. Vs. when it is arbitrary ; iii. when it is without application of mind; and iv. when there is no evidence in support of the case." 17. Recently again in case of Rajasthan State Road Transport Corporation and Ors. Vs. Babu Lal Jangir, (2013) 10 SCC 551 the Supreme Court held in paragraphs 23 & 24 as under: "23. The principle of law which is clarified and stands crystallized after the judgment in Pyare Mohan Lal v. State of Jharkhand and Ors., (2010) 10 SCC 693 is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this 'washed off theory' will have no application when case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration an earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant. 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. 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." 18. So far as the judgments relied upon by the counsel for the State is concerned, in both the judgments i.e. Allahabad Bank Officers Association & Anr. Vs. Allahabad Bank & Ors., (1996) AIR SC 2030 and Baikuntha Nath Das and Anr. Vs. Chief District Medical Officer, Baripada & Anr.,1992 AIR SC 102 there is no dispute so far as the ratio that has been laid down by the Supreme Court in these cases are concerned. Vs. Allahabad Bank & Ors., (1996) AIR SC 2030 and Baikuntha Nath Das and Anr. Vs. Chief District Medical Officer, Baripada & Anr.,1992 AIR SC 102 there is no dispute so far as the ratio that has been laid down by the Supreme Court in these cases are concerned. Once if the allegation of the employee/officer is that the order of compulsory retirement is one which has been passed without any basis or has been passed arbitrarily without proper appreciation of service records of the employee/officer and also the ground of challenge being there is no evidence or basis for the State to reach to the said conclusion, it is always open for this court under Article 226 of the Constitution of India exercising its power of judicial review to scrutinize and decide the veracity and legality of the order of compulsory retirement imposed upon the employee/officer. 19. Thus, the judgments which have been cited and relied upon by the State would not in the facts of the present case come to the rescue of the State justifying the action of compulsory retirement. 20. The impugned order dated 12.09.2017 therefore being not sustainable deserves to be and is accordingly set aside/quashed with all consequential reliefs. 21. The writ petition accordingly stands allowed. No order as to costs.