Allahabad High Court
Ghanshyam Misra vs State Of U.P. And 7 Others on 9 May, 2019
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 1 May 2019 Delivered on 9 May 2019 Court No. - 6 Case :- WRIT - A No. - 45254 of 2017 Petitioner :- Ghanshyam Misra Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Murli Dhar Mishra Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J.
Heard Sri M.D. Mishra, learned counsel for the petitioner and Sri Niraj Tripathi, learned Additional Advocate General assisted by Sri Shashankh Shekhar Singh who has appeared for the State-respondents.
This petition has been preferred challenging an order of transfer dated 15 May 2017 and a subsequent order dated 5 September 2017 compulsorily retiring the petitioner. Arguments have been addressed by respective counsels in respect of the order of compulsorily retirement alone and therefore this Court does not propose to deal with the challenge to the order of transfer referred to above.
The order of compulsorily retirement refers to the report of the Screening Committee constituted by the respondents and proceeds to hold that in light of the recommendations made by that Committee and in exercise of powers conferred by Fundamental Rule 56(c), the petitioner was being compulsorily retired from service.
Upon notices being issued, the respondents entered appearance and filed a counter affidavit. However, on 6 August 2018, a Division Bench of the Court noted the specific averment made by the petitioner in paragraph 26 of the writ petition to the effect that his entire service records were not placed before the Screening Committee so as to enable it to form an opinion with respect to the petitioner being liable to be compulsorily retired. The Division Bench noted that while replying to the assertions made in paragraph 26 of the writ petition, the respondents had submitted a wholly vague and evasive reply. It was accordingly directed that the respondents would file a further affidavit showing the movement of the file/service book of the petitioner from the time that it was sent to the office of the Principal Chief Conservator of Forest [PCCF] in 2008 till the date of the passing of the impugned order.
Pursuant to the order so passed by the Division Bench, a further affidavit was filed by the respondents in which it was curiously averred that the service book of the petitioner was not available with the Screening Committee as it was lying in the office of the PCCF. This Court noticing the aforesaid averments as carried in the Supplementary counter affidavit filed by the respondents passed the following order on 22 November 2018: -
"It appears from the orders dated 7 December 2017 and 6 August 2018 that a serious question has been raised with respect to the existence of the service record of the petitioner before the Screening Committee. According to learned counsel, no records were present before the Screening Committee.
Although this fact has been denied by the State in its supplementary counter affidavit, reliance is placed by the learned counsel for the petitioner to certain disclosures made under the Right to Information Act, 2005.
In view thereof, the ends of justice would merit learned Standing Counsel being called upon to produce the original record of the Screening Committee of the date when the case of the petitioner for compulsory retirement was considered.
List on 12 December 2018 on which date relevant record may be produced."
Upon original records being produced for the perusal of the Court, the following order came to be passed on 12 December 2018: -
"From the original records placed by the learned Standing Counsel, this Court notes that the members of the Screening Committee have appended their signatures upon a broad-sheet encapsulating the service entries of the petitioner. The original service book has also been produced and on the basis of which the learned Standing Counsel seeks to contend that the contention of the petitioner that his entries had not been completed after 2009-10 is incorrect.
The ends of justice would therefore merit the broad-sheet as well as the relevant extracts of the service book pertaining to the recordal of entries for each year being brought on record by way of an affidavit to be filed by the respondents on or before the next date fixed. This would enable the petitioner to also respond.
The Court further provides that if so desired, the original records which have been produced today may be inspected by learned counsel for the petitioner in the presence of the learned Standing Counsel.
List in the second week of January 2019."
On 26 March 2019, Sri Niraj Tripathi, the learned Additional Advocate General filed a third supplementary counter affidavit on behalf of the respondents. From this affidavit, it is asserted that on 12 July 2017, the Chief Conservator of Forests (Administration) U.P. issued a directive requiring all concerned to furnish the relevant records with respect to officers of the Department who had attained the age of 50 years on 31 March 2017. The attention of the Court was then invited to a further communication of the PCCF dated 5 August 2017 directing all concerned officials to ensure that the service book of the Range Forest Officers be furnished and produced by 8 August 2017. Pursuant to this directive, it is asserted that the character roll of the petitioner and other allied service records were received in the office of the PCCF. Sri Tripathi further points out that as per the petitioner's own assertion his service record had been transmitted to the office of the PCCF in 2008. Sri Tripathi points out that the PCCF was a Member of the Screening Committee and since the entire records were present in his office they were duly produced and perused by the Screening Committee which was so constituted. Sri Tripathi further contends that even otherwise, the petitioner raises no dispute with respect to his character roll being present before the Screening Committee. According to him the allegation that the service book of the petitioner was not present is therefore clearly inconsequential.
The above facts are being recorded only in order to encapsulate the proceedings which took place on this writ petition prior to it being finally heard on 1 May 2019. It is however pertinent to record here that on that date Sri Mishra, learned counsel for the petitioner, in light of the disclosures as made by the respondents and referred to above did not press the objections and contentions which were noted in the interlocutory orders passed in these proceedings and referred to above and confined his submissions to the merits of the order impugned alone.
Sri Mishra has principally contended that the respondents have failed to objectively assess the service record of the petitioner since it is evident therefrom that the petitioner was graded as a "Good" Officer right from the years 2013-14 to 2016-17. According to Sri Mishra, the bad entries entered in the service record of the petitioner in the three years of 2008-09, 2009-10 and 2010-11 alone could not have formed the basis for the provisions of Fundamental Rule 56 being invoked. Sri Mishra has submitted that the Screening Committee which drew up its report on 5 September 2017 has also failed to take into consideration the reports submitted by the Enquiry Officer in connection with the charge-sheets dated 4 April 2012 and 13 December 2013 in which the petitioner had been exonerated of all the charges. Sri Mishra contends that these two reports which existed on the records of the respondents were neither adverted to nor considered by the respondents thus tainting the entire exercise undertaken and the ultimate opinion formed. Sri Mishra has laid stress upon the underlying obligation of the respondents to take a holistic and comprehensive view of the entire service of the petitioner with entries of the immediately preceding years entitled to be conferred greater weightage. According to him the respondents have clearly failed to keep this salutary principle in mind while proceeding to compulsorily retire the petitioner. In support of his submissions, Sri Mishra has placed reliance upon a decision rendered by a Division Bench of the Court in Rizwan Ahmad Vs. State of U.P.1 Sri Mishra has laid stress upon the following principles as enumerated by the Division Bench and which, according to him, must guide the exercise of powers under Fundamental Rule 56:-
"14. Before we delve into the rival submissions raised at the bar we must deal with the contention canvassed by learned Standing Counsel that the committee had recorded its subjective satisfaction and once subjective satisfaction has been recorded the Court should not interfere. We may hasten to add the concept of subjective satisfaction does not necessarily mean that there can be no material and the competent authority can take a flight in fancy. Subjective satisfaction cannot be done in a manner which a prudent man can never conceive. Satisfaction like discretion has to be based on proper consideration and weighment of material. In our considered opinion subjective satisfaction cannot be scanned as if one is sitting in an appeal, but it must meet the requirement of appreciation expected of a prudent man and the appreciation should be relevant and germane to the purpose apropos to its context. It cannot be conceived for a moment that the subjective satisfaction would take away the order from the purview of judicial scrutiny solely on the basis that the Committee has been subjectively satisfied.
x x x x x x x x x
17. From the aforesaid enunciations of law there remains no iota of doubt that the order of compulsory retirement is not to be passed as short cut to avoid departmental enquiry and that order is to be passed after having due regard to the entire service record of the officer. It is also follows that an order has to be tested on the touchstone that no reasonable person would form requisite opinion on the given material. To elucidate, the order should not smack of perversity or based on no material or prima facie malafide.
x x x x x x x x x x x
19. The past conduct, performance, behavior and service record are to be seen only for the purposes of finding out as to whether the officer has lost his utility and has become dead-wood. The officer may have committed irregularities or might have failed in faithful discharge of his duties in initial stage of his service but may have improve in given passage of time cannot be declared as dead-wood. Under Government Order dated 21.02.2005, it is compulsory to record annual entry up to 30th September of next year."
Noticing the service history of the appellant there, the Division Bench ultimately held as follows: -
"20. If the entry was not filled up in time, then an employee cannot be made to suffer for it. In this chart, integrity of the petitioner was not withheld in any year. So far as censure entries awarded to the petitioner by orders dated 22.05.2012 and 09.09.2013 are concerned, aforesaid entries were stayed by State Public Service Commission U.P. in Claim Petition No. 1927 of 2015, by order dated 07.01.2016 and in Claim Petition No. 371 of 2016, by order dated 06.09.2016, respectively. These stay orders were communicated to the department but were not placed before Screening Committee at the time of its meeting on 28.08.2017. For the incident dated 19.12.2015, relating to alleged recovery of huge quantity of liquor from the residence of the petitioner, FIR of Case Crime No. 611 of 2015 was lodged against the petitioner. In which police submitted charge sheet, on which cognizance was taken and Criminal Case No. 3963/9 of 2016 was registered against the petitioner in which Additional Chief Judicial Magistrate Court No. 2, Muzaffar Nagar acquitted the petitioner by judgment dated 20.03.2017. In disciplinary proceeding also Inquiry Officer submitted his report dated 10.03.2016, finding that charges were not proved. All these materials were not placed before Screening Committee.
21. The respondents have also failed to bring on record any material, which could justify treating the appellant-petitioner as 'dead wood'. It is also worth notify that the order of compulsory retirement even does not state that the respondents have taken the decision to compulsory retire the appellant in the public interest, which is the only ground on which an employee can be compulsory retired."
Sri Mishra then drew the attention of the Court to a recent decision rendered by a learned Judge of this Court while sitting at Lucknow in Mukesh Bhatnagar Vs. State of U.P.2 Sri Mishra points out that Mukesh Bhatnagar was also compulsorily retired on the basis of the same report of the Screening Committee pursuant to which the impugned order came to be passed. In Mukesh Bhatnagar, the learned Judge held as follows:-
"It appears that the weightage was not given to the entries of the recent past years and the entries which ought not to have been given weightage or ought not to have been taken into account i.e. entries prior to order of confirmation dated 03.12.2012, have been taken into account while passing the order impugned dated 05.09.2017 and being so, the Competent Authority or Screening Committee acted in violation of principle settled in para 34 (iv) of the judgment passed by the Hon'ble Apex Court in the case of Baikuntha Nath Das (supra) and the judgment passed by the Division Bench of this Court in the case of Brajesh Kumar (supra).
Another aspect of the case is that two disciplinary proceedings were pending prior to order of compulsory retirement. The Hon'ble Apex Court in the judgment passed in the case of State of Gujrat (supra) in para-11 has held that the order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable and compulsory retirement shall not be imposed as a punitive measure. Further, the Government Order dated 25.01.1969 also says that during the pendency of the departmental proceedings, an employee should not be compulsorily retired.
Keeping in view the fact that disciplinary proceedings against the petitioner were pending prior to order of compulsory retirement dated 05.09.2017, this Courts feels that the impugned order dated 05.09.2017 is in violation of Government Order dated 25.01.1969 and the Law settled by the Hon'ble Apex Court in the case of State of Gujrat (supra).
Thus, the order of compulsory retirement dated 05.09.2017, under challenge, is nothing but an order passed without application of mind and is an outcome of arbitrary exercise of power vested in the authority."
Sri Tripathi, the learned Additional Advocate General, has taken this Court in great detail through the entries which came to be recorded against the petitioner in the years 2008-09, 2009-10 and 2010-11. Sri Tripathi has contended that the mere recordal of "Good" entries in the four years preceding the passing of the impugned order cannot be viewed as having washed away the adverse entries and comments which stood recorded against the petitioner. According to the learned Additional Advocate General, the respondents were bound to take the entirety of the service history of the petitioner into consideration before forming an opinion whether the petitioner was rendered unsuitable for continuance in service and compulsorily retired. Sri Tripathi submits that regard must be had to the fact that an order of compulsorily retirement is not one of punishment and is only aimed at assessing whether the employee in question has been rendered "deadwood". According to Sri Tripathi, the opinion as formed by the Screening Committee cannot be said to be arbitrary or capricious since the same has come to be formed upon it being subjectively satisfied on a comprehensive review of the service record of the petitioner that he was unproductive and consequently not entitled to be continued in service. According to Sri Tripathi, the opinion of the Screening Committee as formulated in the facts of the present case, cannot be said to suffer from any perversity nor can it be said that a reasonable person could not have arrived at the same opinion. In view thereof, he would contend that the impugned order merits no interference.
Dealing with the "washed off" theory which according to Sri Tripathi has been propounded and pressed into aid on behalf of the petitioner, he would submit that the same has clearly and in unequivocal terms been held to have no application in a case of compulsorily retirement. Sri Tripathi in support of this submission has placed reliance upon the decision rendered by three learned Judges of the Supreme Court in Pyare Mohan Lal Vs. State of Jharkhand & others3 wherein it was held as under: -
"21. However, a three-Judge Bench of this Court in State of Orissa and Ors. v. Ram Chandra Das, had taken a different view as it had been held therein that such entries still remain part of the record for overall consideration to retire a government servant compulsorily. The object always is public interest. Therefore, such entries do not lose significance, even if the employee has subsequently been promoted. The Court held as under:
"7. ...Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that self same material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension."
This judgment has been approved and followed by this Court in State of Gujarat v. Umedbhai M. Patel AIR 2001 SC 1109, emphasising that the "entire record" of the government servant is to be examined.
22. In Vijay Kumar Jain, this Court held that the vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires the examination of the entire service records, including character rolls and confidential reports. `Vigour or sting of an adverse entry is not wiped out' merely it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the government servant.
x x x x x x x x x x x x x The law requires the Authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a Judicial Officer is required to be examined, treating him to be differently from other wings of the society, as he is serving the State in a different capacity. The case of a Judicial Officer is considered by a Committee of Judges of the High Court duly constituted by Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non- application of mind or mala fide."
Sri Tripathi then drew the attention of the Court to a decision pronounced by a Division Bench of the Court in Ram Kumar Tripathi Vs. State of U.P4 wherein it was held: -
35. No doubt, as has been held by Hon'ble Supreme Court in the judgments cited above and also in terms of the Government Order dated 26.10.1985, the last 10 years' entries are to be given special emphasis, however, for the purposes of taking a decision for compulsorily retiring a government servant, his entire service career needs to be taken into account and in case the Screening Committee on the basis of materials available before it comes to the conclusion that on evaluation of the entire service career the petitioner is not found upto the mark in respect of his efficiency, merely because no adverse entry has been awarded to the government employee in the last 10 years, will not vitiate the decision of the Screening Committee.
x x x x x x x x x
37. As discussed above, the scope of judicially reviewing a decision of the State Government to compulsorily retire a government servant is very limited; rather is confined to ascertaining as to whether the decision of compulsorily retiring a government servant is based on no material or consideration of irrelevant material or mala fide or the satisfaction arrived at is such that a person of common prudence would not form any such opinion. If we examine the facts of this case on the basis of the submissions made by the learned counsel appearing for the respective parties and also on perusal of the entire records, we find that the petitioner has utterly failed to bring home any such ground on which the impugned decision of the State Government to compulsorily retire him, can be interfered with. The satisfaction of the Screening Committee is subjective in nature and the same can be upset only if it is based on no material or irrelevant material."
Sri Tripathi then placed reliance upon a more recent decision of the Supreme Court in Punjab State Power Corporation Ltd. Vs. Hari Kishan Varma5 to reiterate the legal position that past adverse entries cannot be said to have lost their significance merely because they may have been followed by "Good" entries thereafter. Sri Tripathi relied upon the following passages of the decision aforementioned:-
"13. Prior to dwelling upon the issue whether the order passed in this case is stigmatic or not, we think it appropriate to deal with the contention whether the past entries prior the conferment of benefit of promotion have lost their significance and hence, the competent authority could not have relied upon the same while passing an order of compulsory retirement. There is no cavil over the fact that the Respondent was extended the benefit of promotion to the higher post. The issue that has been raised by the learned Counsel for the Respondent is that after the promotion the earlier adverse entries totally lost their signification. To appreciate the said submission, we think it appropriate to refer to certain authorities in the field.
16. In view of the aforesaid statement of law, there can be no iota of doubt that the entire record can be scrutinised by the employer to adjudge the justification of continuance of the employee after reaching a particular age as contemplated in the Regulations. This being the position of law, have no hesitation in holding that the submission of Ms. Rekha Palli is sans substance."
The challenge raised in this writ petition may now be considered in light of the contentions addressed and noted above.
Before proceeding further, it would be however apposite to bear in mind the fundamental principles which govern the exercise of power of compulsorily retirement of a Government servant. The scope of the power conferred on an authority to compulsorily retire has been the subject matter of various decisions of our Court as well as the Supreme Court. While the law which governs needs no elaborate exposition, it would be pertinent to briefly reiterate and underline the following fundamental precepts.
At the very outset it needs to be stated that compulsorily retirement is not and cannot be resorted to as a measure of punishment. The power to compulsorily retire stands conferred on an employer to enable it to weed out those who are either inefficacious or unfit to be retained in service. It is essentially an assessment of the productivity of an employee and an exercise to assess whether his continuance is in the interest of the organisation. Employees who have become "deadwood" (to borrow an expression which has been often used) are liable to be relieved in exercise of this power in the interest of the efficiencies and productivity of the organisation and consequently in public interest. It is in that backdrop that the Courts have repeatedly held that an order of compulsory retirement is neither a punishment nor ordinarily stigmatic. It is not akin to the power vested in an employer to terminate an engagement on the ground of misconduct or delinquency. The second aspect of equal importance is to acknowledge that while the power is exercised by the employer being subjectively satisfied with regard to the need to compulsorily retire, the satisfaction itself must rest and be founded upon objective material. The opinion must necessarily be based upon cogent material and established to have been formulated upon due application of mind and an assessment of the entire service record. As has been rightly contended by the learned Additional Advocate General the formation of opinion must be founded upon a comprehensive and holistic consideration of the entire service record.
In the ultimate analysis, the Court must be satisfied that the formation of opinion is neither whimsical nor arbitrary but in fact based purely upon an objective assessment of the suitability of the employee. It is to be remembered that Courts will not interfere merely because another view could possibly be taken. After all the exercise of power to compulsorily retire is an outcome of the subjective satisfaction so arrived at. It would however, be justified in posing to itself the question whether a reasonable and prudent person would have arrived at the same conclusion as the employer upon an assessment of the entire record.
Often orders of compulsorily retirement are assailed on the ground that they came to be made in order to obviate the requirement to prove allegations of misconduct levelled against an employee. Such a challenge is raised often where the power of compulsorily retirement is exercised either during the pendency of disciplinary proceedings or before a punishment is ultimately inflicted. A challenge on these lines may also be raised whether though a decision to initiate disciplinary proceedings is taken, an enquiry need not have commenced. In such situations the Courts are called upon to consider whether the power of compulsorily retirement was in fact invoked as a ruse and veils the true intent of the employer to avoid the necessity of holding a departmental enquiry. These issues very often call upon the Court to consider whether the misdemeanor alleged and yet to be proven or acted upon formed the motive or foundation of the order of compulsorily retirement.
Reiterating the settled legal position of the power to compulsorily retire and the obligation of the employer to scan the entire service record of a government servant, the Supreme Court in Punjab State Power Corporation held thus:-
"14. In State of Orissa v. Ram Chandra Das : (1996) 5 SCC 331 a three-Judge Bench has emphatically held that object behind compulsory retirement is public interest and, therefore, even if an employee has been subsequently promoted, the previous entries do not melt into insignificance. To quote:
7...Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension.
15. The aforesaid dictum has been approved and followed in State of Gujarat v. Umedbhai M. Patel : (2001) 3 SCC 314, wherein emphasis has been laid on the factum that entire service record of the government servant is to be examined. Same principle has also been followed in another three-Judge Bench decision in Pyare Mohan Lal v. State of Jharkhand and Ors. (2010) 10 SCC 693. Slightly recently, a Division Bench in Rajasthan SRTC v. Babulal Jangir : (2013) 10 SCC 551, after discussing number of authorities, has held thus:
"22. It clearly follows from the above that the clarification given by a two-Judge Bench judgment in Badrinath v. State of Tamil Nadu is not correct and the observations of this Court in State of Punjab v. Gurdas Singh : (1998) 4 SCC 92 to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement.
23. The principle of law which is clarified and stands crystallised after the judgment in Pyare Mohan Lal v. State of Jharkhand 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 the 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 the 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."
Dealing with a case where an order of compulsorily retirement comes to be made during the pendency of disciplinary proceedings, the Supreme Court in State of U.P. And another Vs. Abhai Kishore Masta6 made the following pertinent observations: -
"7. So far as the order of compulsory retirement under Fundamental Rule 56-J is concerned, we are of the opinion that the principle enunciated by the High Court in J.N. Bajpai and followed in the Judgment under appeal is unsustainable in law. It cannot be said as a matter of law nor can it be stated as invariable rule, that any and every order of compulsory retirement made under Fundamental Rule 56-J (or other provision corresponding thereto) during the pendency of disciplinary proceedings is necessarily penal. It may be or it may not be. It is a matter to be decided on a verification of the relevant record or the material on which the order is based.
8. In the State of Uttar Pradesh v. Madan Mohan Nagar (1967)IILLJ63SC it has been held by a Constitution Bench that the test to be applied in such matters is "does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsory?" It was observed that if the charge or imputation against the officer is made the condition of the exercise of the power it must be held to be by way of punishment-otherwise not. In other words if it is found that the authority has adopted an easier course of retiring the employee under Rule 56-J instead of proceeding with and concluding the enquiry or where it is found that the main reason for compulsorily retiring the employee is the pendency of the disciplinary proceeding or the levelling of the charges, as the case may be, it would be a case for holding it to be penal. But there may also be a case where the order of compulsory retirement is not really or mainly based upon the charges or the pendency of disciplinary enquiry. As a matter of fact, in many cases, it may happen that the authority competent to retire compulsorily under Rule 56-J and authority competent to impose the punishment in the disciplinary enquiry are different. It may also be that the charges communicated or the pendency of the disciplinary enquiry is only one of the several circumstances taken into consideration. In such cases it cannot be said that merely because the order of compulsory retirement is made after the charges are communicated or during the pendency of disciplinary enquiry, it is penal in nature.
9. It is true that merely because the order of compulsory retirement is couched in innocuous language without making imputations against the government servant, the Court need not conclude that it is not penal in nature. In appropriate cases the Court can lift the veil to find out whether, in truth, the order is penal in nature vide Ram Ekbal Sharma v. State of Bihar."
It ultimately held:-
12. We are, therefore, of the opinion that the High Court was in error in holding that merely because the order of compulsory retirement was passed during the pendency of a disciplinary enquiry, it must be necessarily deemed to be penal in nature, is unsustainable in law. The Judgment of the High Court is accordingly set aside and the matter is remitted to the High Court to determine, in the light of the observations made herein, whether the order of compulsory retirement is, in truth, penal in nature? There shall be no order as to costs."
Dealing with the decision rendered by a learned Judge of the Court in Mukesh Bhatnagar and upon which great emphasis was laid by Sri Mishra, this Court finds itself unable to either adopt or subscribe to the proposition as broadly formulated by the learned Judge in that decision. In Mukesh Bhatnagar, the learned Judge noticing the fact that two disciplinary proceedings were pending prior to the order of compulsorily retirement being passed proceeded to observe that compulsorily retirement must not be imposed as a punitive measure and as a short cut to avoid a departmental enquiry when such course is more desirable. While noting thus, the learned Judge sought to draw sustenance from the principles as formulated by the Supreme Court in State of Gujarat Vs. Umedbhai M Patel7. Firstly, no such absolute proposition was culled out or propounded in Umedhai M. Patel. Secondly and with due respect to the learned Judge, this Court finds itself unable to tread this path bearing in mind the principles as enunciated by the Supreme Court in State of U.P. As was observed there, the Supreme Court held that it cannot be said as a matter of law or as an invariable rule that an order of compulsorily retirement made during the pendency of disciplinary proceedings is necessarily penal. It held that whether it was penal or not would be a matter to be decided on verification of the relevant record. The position was then further elaborated with the Court observing that only in a case where it is found that the main reason for compulsorily retiring the employee was the charge which formed the subject matter of the disciplinary proceedings could it be said to be penal. It held that even in a case where the pendency of disciplinary proceedings is only one of several circumstances which are taken into consideration by the employer, in such a situation it could not be said that the order of compulsorily retirement was penal in nature. The above exposition is necessitated only in light of the great emphasis laid by Sri Mishra upon the decision in Mukesh Bhatnagar. However the above observations are not to be construed as an expression of any opinion on the correctness of the ultimate conclusion arrived at by the learned Judge in that matter. Ultimately it would be for this Court to consider whether in the facts of the present case, the order of compulsory retirement was based solely upon the pendency of disciplinary proceedings against the petitioner or whether it was founded upon other relevant considerations.
In the present case as this Court reads the reasons recorded by the Screening Committee while recommending the compulsory retirement of the petitioner, it does not find that the same was based solely upon the charges which formed the subject matter of the disciplinary proceedings. The Screening Committee while framing its recommendations has taken into consideration the annual confidential entries, disciplinary proceedings, orders of punishment, reports of the Vigilance Department cumulatively. At least that is what the recommendation recites and records. No other material was relied upon to establish that the ultimate conclusion recorded by the Screening Committee hinged and rested solely on the departmental enquiries stated to be pending. The fact that this opinion was formed without the Screening Committee taking into consideration the fact that the petitioner stood exonerated of all the charges levelled against him by the Enquiry Officer and its ultimate impact on the order of compulsorily retirement itself is an aspect which is left over to be considered in the subsequent passages of this decision. The Court in the facts of this case finds itself, therefore, unable to hold that the order of compulsorily retirement was penal in character. The record as prepared by the Screening Committee does not establish that the recommendation came to be formulated solely on the basis of the enquiry proceedings which were stated to be pending.
Turning then to the merits of the assessment as undertaken by the Screening Committee, this Court finds that although the entire service record of the petitioner was liable to be scrutinized, the Screening Committee has ostensibly chosen to found its conclusion on the adverse entries recorded against the petitioner in the years 2008-09, 2009-10 and 2010-11 alone. The Screening Committee records that in the year 2011-12 no entries were recorded in the character roll of the petitioner on account of the pendency of disciplinary proceedings. Similarly for the year 2012-13 it records that no entries had been made by the competent authority in the character roll of the petitioner for that year. Undisputedly the petitioner was not only awarded "Good" entries in the years 2012-13 up to 2016-17, his integrity was also certified in all these years. The "Good" entries which came to be recorded in the five years preceding the order of compulsory retirement came to be so entered even though disciplinary proceedings were pending against him. The only order of punishment which has been taken notice of by the Screening Committee was of 22 February 2005 when orders were passed for the recovery of a sum of Rs. 35952/- from the petitioner and one annual increment stopped. The significance and import of the adverse entries awarded in the three years aforementioned must necessarily be evaluated by the Court not loosing sight of the fact that the petitioner entered the service of the respondents as far back as on 1 May 1989 and was ultimately compulsorily retired on 5 September 2017 after having rendered service of almost 28 years. The Screening Committee significantly does not take into consideration any adverse entry other than those awarded in the three years aforementioned in the long career of the petitioner spanning over a decade.
While precedents do mandate the entire service record of an employee being evaluated before forming an opinion to compulsorily retire an employee, these very decisions also bid us to bear in mind that while old adverse entries can be taken into consideration, the record of the immediate past period must be given due credence and weightage. This principle which was propounded in Pyare Mohan Lal was reiterated by the Supreme Court in Rajasthan State Road Transport Corporation and another Vs. Babu Lal 8 wherein the Supreme Court observed: -
"24. 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."
This aspect was also highlighted and underlined by the Division Bench of the Court in Rizwan Ahmad where it was observed that while an officer may have committed irregularities or failed to have faithfully discharged duties in the initial stage of service, if he has shown signs of improvement over a passage of time, he cannot be declared as "deadwood". If the service record of the petitioner is viewed in that backdrop, it is evident that the Screening Committee while framing its opinion has failed to bear in mind these salutary principles.
The more fundamental flaw which this Court notes is a failure on the part of the Committee to either advert to or take into consideration the reports of the Enquiry Officer in respect of the two disciplinary proceedings which were pending against the petitioner prior to the impugned order coming to be passed. Undisputedly these reports in respect of the two charge-sheets were forwarded by the Enquiry Officer on 2 June 2017 and 6 June 2017 to the PCCF. Both these reports exonerated the petitioner of all the charges which stood levelled against him. These reports existed on the record of the respondents at the time when the Screening Committee met to assess the suitability of officers including the petitioner. These reports were addressed to the PCCF who was himself a member of the Screening Committee. It is also pertinent to note here that the learned Additional Advocate General despite a pointed query was unable to state whether these reports were accepted, acted upon or even rejected by the Disciplinary Authority prior to the passing of the impugned order. The Court in that backdrop is constrained to proceed on the presumption that although these reports of the Enquiry Officer existed on the record no further decision was taken in respect of these reports. More importantly the Screening Committee as is evident from a perusal of the broad-sheet which was drawn up by it had proceeded on the basis that the enquiry proceedings were still pending. In that view of the matter, it is more than evident that the Committee has failed to accord due application of mind to the entire record of service of the petitioner.
In the ultimate analysis the Court bears in mind that the petitioner had been awarded adverse entries in only 3 years during his entire service of almost 28 years. In the years immediately preceding the making of the impugned order, the conduct of the petitioner was assessed as "Good" and his integrity had also been certified. The Screening Committee has manifestly failed to accord due credence and weightage to these entries. It has also not recorded any satisfaction that the gravity of the allegations which led to the recordal of these adverse entries far outweighed and overshadowed the subsequent good entries which came to be awarded to the petitioner. Although the character entry for one year was withheld on account of pendency of a departmental enquiry, on the date when the Screening Committee met, the petitioner had been exonerated of the charges by the Enquiry Officer. These reports are not shown to have been either rejected by the Disciplinary Authority nor did the respondents establish that the Authority had directed further steps to be taken. The Screening Committee proceeded on the assumption that the disciplinary proceedings were pending when in fact the reports of the Enquiry Officer had been duly placed before the PCCF prior to the drawl of its recommendation. The PCCF was admittedly a member of the Screening Committee. The above is evidence of a failure on the part of the Screening Committee to exercise due application of mind and a manifest failure to take relevant factors into consideration. Applying the test of assessing the decision from the viewpoint of a reasonable and prudent person the Court comes to conclude that the opinion to compulsorily retire the petitioner could not have been formed or arrived at. On an overall consideration of the aforesaid facts, this Court finds itself unable to sustain the order of compulsorily retirement impugned here.
The writ petition consequently succeeds and is allowed. The impugned order dated 5 September 2017 is hereby quashed. The petitioner shall be entitled to all consequential reliefs.
Order Date :- 9.5.2019 LA/-