Allahabad High Court
Shailendra Kumar Srivastava vs State Of U.P. Through Its Principal ... on 22 August, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:134560-DB Judgement reserved on 29.07.2024 Judgement delivered on 22.08.2024 Case :- SPECIAL APPEAL No. - 392 of 2024 Appellant :- Shailendra Kumar Srivastava Respondent :- State of U.P. through its Principal Secretary (Home) and 4 others Counsel for Appellant :- Bidhan Chandra Rai Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
(Per: Hon'ble Mahesh Chandra Tripathi,J)
1. Heard Sri B.C. Rai, learned counsel for the appellant-petitioner and Sri Devesh Vikram, learned Additional Chief Standing Counsel for the opposite parties.
2. Present Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been preferred against the judgment and order dated 28.4.2020 passed in Writ A No.12429 of 2018 (Shailendra Kumar Srivastava vs. State of U.P. and 4 others) whereby learned Single Judge of this Court has proceeded to dismiss the writ petition.
FACTS
3. Facts that are culled out from the pleadings and the material available on record before this Court are that the appellant-petitioner was appointed on 19.07.1997 as Deputy Jailor under the provisions of the U.P. Jail Executive Subordinate (Non-Gazetted) Service Rules, 19801. Initially, the post of Deputy Jailor comprised in Group 'C' post. Subsequently, vide amendment dated 27.06.2014 the post of Deputy Jailor was included in the Group 'B' posts and the Appointing Authority of the Deputy Jailor was Inspector General (Prisons), U.P. By notification dated 30.05.2000 the State Government had re-designated the post of Inspector General (Prisons) as the Director General (Prisons) and an IAS officer holds the post of Inspector General (Prisons). By Government order dated 12.04.2008 an ex-cadre post of Inspector General (Prisons) was created for three years and the said post was to be filled up by an officer of I.P.S. cadre. Vide Government order dated 16.04.2008, the Administrative & Financial Powers of the Director General (Prisons) were delegated to an Inspector General Prisons (ex-cadre) and the Inspector General (Prisons) has been nominated as Additional Head of the Department of Prisons. Vide another Government order dated 12.06.2008 it was further provided that the powers of suspension of Jailor, Deputy Jailor etc. were delegated to Inspector General (Prisons).
4. The case of the appellant-petitioner is that while he was posted as Deputy Jailor at District Jail, Muzaffarnagar, two unknown persons dressed in lawyers' outfit came to meet him at his official residence on 26.06.2013 and they introduced themselves as Advocates. Thereafter, he was placed under suspension on 03.10.2013 on the allegation that in the sting operation conducted by News Nation TV Channel, he was found accepting money in lieu of assurances to provide unauthorized services to the prisoners. The said suspension order was challenged in Writ A No.57883 of 2013 in which an interim order was accorded by this Court on 22.10.2013 staying the effect and operation of the suspension order dated 3.10.2013 till further orders. Subsequently, the Deputy Inspector General, Meerut Zone, Meerut submitted a preliminary enquiry report on 07.11.2013 categorically stating that the private TV channel did not provide any evidence and the footage of sting operation is not certified. The Inspector General (Prisons) vide an order dated 08.11.2013 reinstated the petitioner subject to final outcome of the writ petition and he had joined at Pilibhit District Jail.
5. A departmental enquiry was initiated against the petitioner in terms of the Office Memo dated 03.10.2013 and a charge sheet was served upon him on 05.01.2014, alleging that he was indulged in unnecessary dialogue to provide illegal services to the prisoners and he had committed acts of misconduct under the provisions of Para 1101 (a) of Jail Manual together with Rule 3 (1) and (2) of U.P. Government Servants Conduct Rules, 19562. In response thereto, the petitioner had submitted written statement on 07.04.2014. Thereafter the Inspector General (Prisons), Uttar Pradesh vide Office Memo dated 20.04.2017 had nominated the Deputy Inspector General (Prisons), Bareilly Zone, Bareilly as the enquiry officer and the charge sheet dated 03.05.2017 was served upon him to which he filed his reply on 18.05.2017 stating that the issue of examination of footage of sting operation through FSL is subjudice before this Court and during the pendency of the aforesaid writ petition, the disciplinary proceeding cannot be initiated against him. The petitioner submittd written statement before the Inquiry Officer on 13.11.2017
6. The petitioner received Office Memo in November 2017 together with the enquiry report and he was asked to file reply on or before 17.12.2017. Finally, the Inspector General (Prisons), exercising powers under Government orders dated 12.04.2008 and 16.04.2008, had proceeded to pass the order dated 22.02.2018 imposing major punishment of stoppage of three increments of the appellant with cumulative effect. Thereafter, a Screening Committee, consisting of Director General (Prison), Inspector General (Prison) and Additional Inspector General (Prison), was constituted on 24.04.2018 and the Committee has taken a decision to compulsorily retire the petitioner. Consequently, the Director General (Prisons) had passed an order of compulsory retirement of the petitioner on 26.04.2018 as per the recommendation of the Scrutiny Committee.
7. Aggrieved by the aforesaid, the petitioner had filed the second Writ A No.12429 of 2018 seeking following reliefs:-
"i. issue a writ of certiorari to quash the impugned order of compulsoary retirement of the petitioner dated 26.04.2018 as contained in Annexure No.28 passed by the Director General (Prison)/Respondent No.2;
ia. issue a writ of certiorari to quash the impugned resolution of Screening Committee dated 24.04.2018 (Annexure No.29 to the writ petition);
ii. issue a writ of certiorari calling for the record and to quash the impugned order of imposing major punishment of stoppage of three increments with cumulative effect dated 22.02.2018 as contained in Annexure No.27 passed by the Inspector General (Prisons)/Respondent no.3;
iii. issue a writ of certiorari to quash the Office Memo dated 20.04.2017, charge sheet dated 03.05.2017, Office Memo dated 07.12.2013/2017 as contained in Annexure Nos. 16, 17 and 25 to the writ petition;
iv. pass appropriate writ, order or diretion directing the respondents concerned to produce the relevant records including the proceedings of recommendation of Scrutiny Committee and upon production thereof the same may be quashed;
v. pass appropriate order or direction declaring Government orders dated 12.04.2008, 16.04.2008 and 12.06.2008 as totally illegal and to quash the same and the respondents be directed to take work from the petitioner and to continue to pay usual emoluments to the petitioner every month;
vi. issue such other and further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case; and vii. to award the cost of the petition."
8. Learned Single judge vide impugned judgement and order dated 28.4.2020 had dismissed both the writ petitions, the order of which is under challenge in the present Special Appeal. Relevant portion of the judgement dated 28.04.2020 is reproduced herein below:-
"Apart from the above, the petitioner was held guilty of interacting with the Media personnel of T.V channel 'News Nation' and the conversation was telecasted on 1/2.10.2013. It was found that there may not be truth in the video footage but the act of the petitioner in entertaining Media Personnel had resulted in tarnishing the image of the department and is in contravention of the Code of Conduct of the Government servants. He was, therefore, awarded a major punishment of withholding of three increments with cumulative effect.
The broad sheet of the material placed before the screening committee based on ten years service record of the petitioner has been appended with the affidavit filed by the respondents.
A perusal of the above material further indicates that a departmental enquiry had also been initiated against the petitioner vide Office order dated 3.10.2017 based on an inspection report dated 3.7.2012 wherein in the surprise inspection conducted by the C.O.C.T, O.O.G team, 4 mobile phones were recovered from a prisoner. The Deputy Inspector General (Prison), Agra has been appointed as an enquiry officer.
The material placed before the Court, thus, categorically indicates that entire service record of the petitioner was placed before the Screening Committee which upon due consideration thereof reached at the conclusion that continuing the petitioner in Government service would not be in public interest. The material considered by the Screening Committee cannot be said to be irrelevant or extraneous. It is not possible for the Court to look to the adequacy or sufficiency of material considered by the Screening Committee so as to form an opinion than that has been formed by the Committee. It is not a case where order of compulsory retirement can be said to have been passed as a punishment. The orders of adverse entries awarded to the petitioner record that the conduct of the petitioner was not found up to the mark. Mere fact that minor punishment had been awarded to the petitioner by the disciplinary authority or the appellate authority would not be a reason to interfere in the decision of the competent authority to compulsorily retire the petitioner. The recommendations of the Screening Committee based on the assessment of entire service record of the petitioner was duly approved by the competent officer. Within the limited scope of judicial review, it is not possible for this Court to take another view on the material placed on record. No perversity or arbitrariness could be shown on the face of the order of compulsory retirement. There is no allegation of malafide.
Now, the only question remains to be examined is whether the order of compulsory retirement can be said to be stigmatic? A bare perusal of the order of the compulsory retirement of the petitioner indicates that it is an innocuous order whereby the petitioner was compulsorily retired from the date of issuance of the order in accordance with the Fundamental Rule 56(C), and in lieu of 3 months notice salary and other allowances are payable to him. The language employed in the order does not suggest or give an indication of the adverse material against the petitioner. Being a simplicitor order, it cannot be said to be stigmatic by any stretch of imagination.
From all angles, the order of compulsory retirement cannot be faulted. No interference is called for. The submission of learned counsel for the petitioner that only material before the Screening Committee was the order of dismissal dated 22.2.2018, which in turn is based on the sting operation, is found wholly misconceived.
In view of the above, the said writ petition is found devoid of merits and hence dismissed."
SUBMISSION ON BEHALF OF THE APPELLANT
9. Sri B.C. Rai, learned counsel for the appellant vehemently argued that the appellant has essentially been punished for the sole charge of speaking with two persons at his official residence in relation to prison matters on 29.06.2013. He was a victim of a malicious stunt by the said news channel. The video footage of the so-called sting operation was edited and incomplete and furthermore, the names of the witnesses were not disclosed in the charge sheet. The appellant sought adjournment of the enquiry until his prayer for forensic examination is redressed by the Writ Court but the enquiry was conducted ex-parte, without recording of any evidence whatsoever. He has challenged the entire enquiry proceedings in Writ A No.12429 of 2018 but learned Single Judge has dismissed the said writ petition on the ground that the petitioner could not seek judicial review of the impugned orders, when he had declined to participate in the departmental proceedings.
10. Sri B.C. Rai further submitted that as per Rule 6 of the Government Employees (Discipline & Appeal) Rules, 19993 the Disciplinary Authority of the appellant is his Appointing Authority i.e. Director General (Prisons). For imposing major punishment, Rule 7 (i) of the Rules, 1999 is to be mandatorily followed, which specifically provides for an enquiry by the Disciplinary Authority himself or an authority appointed by him. Rule 7 (iii) of the Rules, 1999 makes it mandatory for the Disciplinary Authority to mention the proposed documentary evidences and the names of the witnesses proposed of the department to prove the charges against the charged employee. However, in this case, no names of the proposed witnesses or any documentary evidence except the preliminary enquiry report has been mentioned in the charge sheet. It was further urged that there is no compliance of Rule 7(iii), (iv) & (v) of the Rules, 1999 and in absence of the compliance of Rule 7 of the Rules,1999, the entire proceedings are a sham. The respondent authorities did not lead any evidence, nor any opportunity was granted to the petitioner to lead evidence and in any case the charge, which was levelled, ought to have been proved. Neither any date, place and time for the enquiry was fixed and accordingly, the entire enquiry proceedings are bad.
11. Sri Rai submitted that, as per Rules, 1999 the power to initiate the enquiry proceedings for imposing major penalty was only with the Disciplinary Authority and he was also not empowered to delegate such powers. There is no executive or administrative order of the Disciplinary Authority under which the Additional Direcrtor General (Prisons) initiated the enquiry proceedings after such a long delay. The disciplinary proceedings were initiated against the appellant by serving him a chargesheet dated 03.05.2017 and the charge sheet was issued by an officer not appointed by the Disciplinary Authority of the petitioner, that too only on the basis of the preliminary enquiry report dated 30.07.2014. In the present case, the charge sheet was issued by the Deputy Inspector General (Prisons), Bareilly Zone, Bareilly, who was appointed by the Additional Director General (Prisons).
12. Sri Rai further submitted that under the provisions of Rule 7 (i) and (ii) of the Rules, 1999, the charge sheet is required to be approved by the Disciplinary Authority before an enquiry is initiated and such Disciplinary Authority is the Appointing Authority of the charged employee under Rule 6. In the present case, the charge sheet was never approved by the Disciplinary Authority/Appointing Authority or in fact, by any other authority appointed by the Disciplinary Authority, which is a mandatory requirement. The charge sheet was approved by an authority much below in rank i.e. Additional Director General (Prisons). The enquiry report was thereafter accepted by the Inspector General (Prisons) (ex-cadre), who was delegated with the powers of the Disciplinary Authority vide Government order dated 16.04.2008. He had passed the order dated 22.02.2018 purportedly in exercise of powers under Rule 9 of the Rules, 1999 and imposed the major punishment of withholding three increments of the appellant, which also became the basis of the subsequent order of compulsory retirement against him. Therefore, the disciplinary proceeding was initiated by an incompetent authority and hence, the same is illegal and non-est. In this regard, he had placed reliance on the following judgments in the case of State of U.P. and another v. Chandrapal Singh and another4; Union of India and another vs. Kunisetty Satyanarayana 5 and Union of India & ors vs. B.V. Gopinath6.
13. Sri Rai contended that the Inspector General (Prisons) (ex-cadre) was not competent under Rule 6 of the Rules, 1999 to impose such punishment as he was not the appointing authority of the appellant. The appellant was appointed to the post of Deputy Jailor on 19.07.1997 by the Director General (Prisons), who was U.P. Cadre I.A.S. The post was categorised as 'Group 'B' post vide Uttar Pradesh Prison Administration and Reforms Executive Subordinate (Non-Gazetted) Service (Second Amendment) Rules, 20147. The power of the Disciplinary Authority is non-delegable in respect of 'Group A' and 'Group B' government employees under Rule 6. Thus, the power could only have been exercised by the Director General (Prisons) and the same could not have been delegated to the Inspector General (Prisons) (ex-cadre). He submitted that learned Single Judge has erroneously held that the posts of Inspector General (Prisons) (ex-cadre) and the Director General (Prisons) are equivalent and thus, there is no flouting of rules on this count. The Director General is an officer from the cadre of I.A.S. officers, who is responsible for the entire administration of the prison department. On the other hand, the Inspector General is an ex-cadre officer from the I.P.S., who is appointed to assist the Director General and he cannot supplant his role in any manner. In this regard, he placed reliance on the judgement rendered in Vice Chancellor, L.N. Mithila University vs. Dayanand Jha8.
14. He next submitted that in the present case, the charge sheet is a mere repetition of the preliminary enquiry report dated 14.11.2017. The main purpose of a preliminary enquiry is to decide, if there is enough initial evidence against an officer to warrant further proceedings. The preliminary inquiry is carried out to enable the Disciplinary Authority to determine whether a full fledged departmental enquiry is required. Both the charge sheet and the regular inquiry report are merely based on the preliminary inquiry report. It was submitted that the evidence recorded in the preliminary enquiry cannot be used in regular enquiry as the delinquent is not associated with it and the opportunity to cross-examine the persons, who were examined in such enquiry, is not given. No witnesses were cited in the charge sheet nor called by the enquiry officer to prove the edited footage or its transcript. In absence of any oral evidence, the transcript does not even qualify as evidence and without oral evidence, no documentary evidence including audio or video footage can be proved or form the basis of punishment. The appellant sought a copy of the unedited and edited video footage and requested to cross-examine the representative of the news channel but the alleged transcript of video was also never provided to him.
15. Sri. B.C. Rai further urged that the allegation of taking bribe from the reporters is not even proved and the major penalty imposed is highly disproportionate. On one hand, the appellant has been held guilty of talking to public/reporters in official residence regarding jail affairs and on the other hand, in garb of the said misconduct he has been punished for talking to reporters regarding bribe. This issue was specifically raised in the writ petition but the same has not been considered by learned Single Judge. The initiation of disciplinary proceedings and imposition of major penalty were perverse, vexatious and motivated by extraneous reasons and intended to compulsorily retire the petitioner. Therefore, the impugned jugement passed by learned Single Judge is liable to be set aside summarily in view of the ratio laid down by Hon'ble Supreme Court in the case of P.V. Srinivasa Sastry and others vs. Comptroller and Auditor General and others9 in which it was held that if any Rules provides for a Disciplinary Authority, who can initiate the disciplinary proceedings then no authority other than the authority provided in Rules can initiate disciplinary proceedings.
16. Drawing attention of the Court to the recommendations of the Screening Committee, it was further argued by learned counsel for the appellant that the Committee, consisting of Director General (Prisons), Inspector General (Prisons) and Additional Inspector General (Prisons), had passed the impugned order of major punishment. The same Screening Committee was again constituted and the said Screening Committee had taken the decision to compulsolily retire the petitioner. As a matter of fact, the Screening Committee while considering the petitioner's case for compulsorily retiring him had taken into consideration facts, which were not appropriately placed before the Screening Committee. Consequently, the Director General (Prisons) had passed the order of compulsory retirement of the petitioner on 26.04.2018 purportedly as per the recommendation of the said Screening Committee. The Screening Committee in its resolution dated 24.04.2018 had recorded that in ten years' service, the petitioner had been inflicted one major punishment and three censure entries and as such, the Screening Committee had recommended for compulsory retirement of the petitioner. He submitted that the ACR of the appellant does not indicate even a single adverse entry in the entire service career of the petitioner and the Screening Committee had completely ignored the ACRs from 1997-98 to 2017-18.
17. Sri. B.C. Rai, learned counsel for the appellant vehementally submitted that learned Single Judge in 2nd paragraph at page-6 of the judgment has returned a finding presuming "knowledge" as against the appellant/petitioner and held the enquiry report to be justified. However, learned Single Judge failed to appreciate that merely by non-submission of any reply, the charges cannot ipso-facto be taken to have been proved against him. The enquiry officer was duty bound to get the factum of knowledge of video footage proved to hold him guilty for violation of Para 1101 (a) and 1105 of Jail Manual. The Learned Single Judge failed to appreciate that the enquiry report dated 14.11.2017 did not contain anything, which proves the "knowledge" or "consent" of the petitioner to get the video footage recorded. There is nothing in the said report, which shows that the appellant/petitioner knew the alleged reporters before the sting operation so as to have knowledge of their intention. In this regard he drew our attention to the preliminary enquiry report dated 30.07.2014, which specifically mentions at serial no.5 that the alleged reporters were not acquainted with the appellant earlier and thus, learned Single Judge overlooked the very crucial element of knowledge or consent to hold him guilty, even though the same was never proved.
18. It was, therefore, contended that learned Single Judge did not appreciate the enquiry report correctly, which shows that no evidence, documentary or oral, was examined by the enquiry officer. The entire departmental enquiry was conducted in absence of any evidence being led against the appellant. Even if the appellant did not file his reply, still the department was obliged to lead evidence and establish its case against the appellant/petitioner. Learned Single Judge erred in not appreciating that the enquiry report refers to documentary evidence supplied with the charge sheet under the heading "Analysis of Evidence". The report of the disciplinary enquiry is nothing but reiteration of the preliminary enquiry report. The enquiry officer cannot rely upon the report of preliminary enquiry to establish the charges against the appellant. Even if the report of the preliminary enquiry is taken at its face value to hold the appellant guilty, it does not verify the contents of the C.D. In the last two paragraphs of the said report, a doubt was raised upon the alleged sting operation and it was suggested that before taking any decision, a test of the alleged C.D. from F.S.L. be conducted. However, the enquiry officer ignored the said very crucial findings.
19. Sri Rai submitted that the findings of learned Single Judge from 2nd paragraph of the judgement at page 5 to 2nd para at page 6 are incorrect in the light of the fact that though the appellant has been held guilty on basis of the contents of the alleged video footage of sting operation, however, no fact finding exercise in respect of the contents of the alleged video footage was ever done. The alleged content of video footage was never verified to be containing the voice and picture of the appellant. Learned Single Judge failed to appreciate that the alleged reporters, who conducted the sting operation, were never examined at any stage and furthermore, the author of the preliminary enquiry report was not called upon to verify the same. Hence, the appellant has been held guilty of passing jail information and getting video recorded without proving the fact of any such video footage being recorded or any information being passed to public or media. Learned Single Judge has not considered the reply of the editor of news channel recorded in the preliminary enquiry, wherein he had admitted that the video footage of the alleged sting operation was edited before telecast and hence, without getting the alleged contents of video footage proved, the appellant cannot be held guilty in view of Para 1101 (a) of the Jail Manual and other misconduct.
20. He submitted that the conclusion drawn by learned Single Judge in second paragraph at page-7 of the impugned judgement is misconceived and based on incorrect appreciation of facts and law. The enquiry report contains a transcript of alleged video of sting operation. The transcript is evidently not part of preliminary enquiry report. The alleged video of sting operation was also not a part of the documentary evidence and hence, when the said video footage was never produced before the enquiry officer, no such finding could have been returned by him. With regard to the leading of evidence he had placed reliance on the judgments of the Apex Court in the cases of State of Assam & another vs. Mahendra Kumar Das & others10; State of Uttaranchal & ors vs. Kharak Singh11; Roop Singh Negi vs. Punjab National Bank & others12 and State of UP & ors vs. Saroj Kumar Sinha13.
21. It was contended by Sri. Rai that learned Single Judge has erred in law in not appreciating that Rule 6 of Rules, 1999 which clearly provides that the Disciplinary Authority shall be the appointing authority. In the present case, the appellant was appointed by an I.A.S. Officer holding the post of Director General (Prisons). However, the punishment order has been passed by an I.P.S. officer, who is below the rank of the Director General (Prisons). The appellant is a Group 'B' officer being a Deputy Jailor. The 3rd proviso to Rule 6 of Rules, 1980 provides that no power of imposing penalty can be delegated to any person in case of employee other than Group 'C' or 'D'. Therefore, the Inspector General (Prisons) cannot be a competent authority to pass the order on the basis of the delegation vide Government order dated 16.04.2008. The order of punishment is, therefore, without any authority and is per se illegal.
22. It was submitted that learned Single Judge has erred in holding that the appellant could not raise the issue of lack of jurisdiction of the authority, who had passed the impugned order, for the first time before the High Court. It was submitted that in the case of Seth Hiralal Patni vs. Kali Nath14 Hon'ble Supreme Court has explained the difference between the 'lack of jurisdiction' and 'inherent lack of jurisdiction'. The 'lack of inherent jurisdiction' cannot be cured by acquiescence, consent or omission to raise an objection as to jurisdiction. He submitted that even if the appellant failed to point out the factum of lack of jurisdiction at the first instance he can raise the plea before the Writ Court. Learned Single Judge has erred in law in not appreciating that the Inspector General (Prisons) being an incompetent authority as the power to impose penalty as against Group 'B' employees cannot be delegated, and only the Director General (Prisons) being an appointing authority of the appellant can pass an order of punishment. Learned Single Judge did not considered the fact that there was no opportunity available to the appellant to raise the plea of incompetence of authority at any time prior to passing of the impugned order dated 22.02.2018. The appellant came to know about the delegation of power by the Director General (Prisons) to the Inspector General (Prisons) vide Government order dated 16.04.2008 only through the punishment order dated 22.02.2018 and thus, the finding recorded by learned Single Judge deserves to be set aside.
23. He submitted that learned Single Judge has erred in law in holding that the post of Inspector General (Prisons) is in the same status as that of the Director General (Prisons) and further that the post of Director General (Prisons), who is an I.A.S. offcier, is much superior to an I.G. (Prisons) (I.P.S. officer) in terms of salary and authority. The appellant has been punished with major punishment of withholding three increments with cumulative effect. The misconduct alleged against the appellant was only of speaking to public at official residence regarding the jail affairs. The punishing authority did not mention anything in the punishment order showing that the alleged misconduct is of such a grave nature that it warrants imposing of major penalty i.e. stoppage of three increments with cumulative effect. The allegation of taking bribe from the reporters in order to provide unauthorized benefit to the prisoners is not proved and the major penalty is disproportionate and excessive.
24. Sri. B.C. Rai, learned counsel for the appellant lastly submitted that the Screening Committee had taken into consideration three censure entries while recommending for compulsory retirement of the appellant. There is no adverse entry in the service record of the appellant and rather in past 11 years the appellant has been awarded Outstanding (5 times), Very good (4 times) and Good (2 times). The Screening Committee did not considered that none of the said censure entries had attained finality. Against the first censure entry, an appeal is pending before the State Government. So far as the two other censure entries of the years 2009 and 2012 are concerned, the petitioner has filed Claim Petitions before the State Public Service Tribunal, Lucknow, which are pending consideration and thus, the recommendation of the Screening Committee is without application of mind. There is no material available on record to justify the compulsory retirement of the appellant in public interest. He concluded his arguments by submitting that the Learned Single Judge did not take into consideration the said fact and as such, the impugned judgment passed by learned Single Judge is contrary to the material available on record.
SUBMISSION ON BEHALF OF RESPONDENTS
25. Replying to the aforesaid submission made by the learned counsel representing the appellant-petitioner, Shri Devesh Vikram, learned Additional Chief Standing Counsel has strenuously argued that the departmental proceedings were initiated while the petitioner-appellant was serving as a Deputy Jailor with the State of U.P. and was an officer of a disciplined force. Initially, while working on the post of Deputy Jailor, he was placed under suspension on 03.10.2013 on the allegation of accepting illegal money, in lieu of assurance to provide unauthorized services to the prisoner and this Court vide its order dated 03.10.2013 had stayed the effect and operation of the suspension order until further orders.
26. Learned Additional Chief Standing Counsel submitted that vide Office Memorandum dated 20.04.2017, the Inspector General (Prisons) nominated Deputy Inspector General, Bareilly Zone, Bareilly as enquiry officer to conduct a deparmental enquiry in terms of the Rules, 1999. A charge-sheet dated 03.05.2017 was served upon the petitioner containing only one charge i.e. the act of the petitioner-appellant in indulging in unnecessary dialogue with journalist and telecast of the same had tarnished the image of the department and the petitioner was guilty of violation of Paragraph 1101 (A) of Jail Manual and also Rule 3 (1) (2) of the Rules, 1956. The petitioner was called upon to submit his reply to the charge-sheet. The petitioner submitted his replies dated 18.05.2017, 21.09.2017 and 13.11.2017, wherein he only prayed for recall/cancellation of the charge sheet in view of the interim order dated 22.10.2013 passed in Writ A No.57883 of 2013 and there was no denial to the charges. In the earlier Writ A No.57883 of 2013, the petitioner had prayed only for quashing the suspension order dated 03.10.2013.
27. Learned Additional Chief Standing Counsel further contended that the order of compulsory retirement is based on the opinion of the Screening Committee to the effect that retiring the petitioner would be in public interest and further that such an order can be passed on the subjective satisfaction of the authority concerned. The scope of judicial review of an order of compulsory retirement by this Court under Article 226 of the Constitution of India is very limited for the reason that the compulsory retirement is neither a punishment nor does it cast any stigma on the employee, being so retired and that action of compulsory retirement is taken on subjective satisfaction of the employer and hence, the judicial review of such matters has to be exercised very sparingly. He submitted that the order of compulsory retirement can be interfered with by this Court only when it is found to be perverse or malafide or arbitrary or is based on no evidence. He submitted that that the record of the present case clearly establishes that there is no perversity in the decision impugned in the writ petition and that opinion of the State Government for compulsorily retiring the petitioner, is based on relevant materials.
28. Sri Devesh Vikram further submitted that the subsequent departmental proceedings were initiated pursuant to the Office Memorandum dated 20.04.2017 by the Inspector General (Prisons). At no point of time, the petitioner had raised the issue qua the genuineness of the compact disk before the enquiry officer and he had not prayed to get it examined by the forensic lab. Moreover, the charge as made out from the charge-sheet was to the extent of indulging in unnecessary dialogue with the journalists of the channel 'News Nation' and the conversation telecasted by the channel had tarnished the image of the department rather, instead of replying to such charge, the petitioner made representations for deferment of the disciplinary proceeding without raising any objection of tampering of the original video recording. Nowhere the petitioner had stated that he had no knowledge about the recording of his conversation with the media professional nor he had stated that he was not involved in such a conversation before the enquiry officer. Since such a defence was never taken before the enquiry officer and hence, the same cannot be considered as being raised for the first time in the writ petition.
29. He further submitted that so far as the issue of jurisdiction of disciplinary authorities is concerned, learned Single Judge in its internal page-9 of the judgement has categorically dealt with the said issue and had arrived at a conclusion. The challenge to the jurisdiction of an authority has to be made before that authority itself and learned Single Judge has very well dealt with the said issue and no ground has been raised by the petitioner in the present intra court appeal regarding the said findings. He further submitted that the power of judicial review is limited to the extent of decision making authority and it is not possible for the Court to substitute its own view in place of the view taken by the Disciplinary Authority and arrive at a different conclusion. On the merits of the charge levelled in the departmental enquiry, the Court is only required to examine as to whether the Disciplinary Authority has followed the procedure to conduct the disciplinary enquiry i.e. the principles of natural justice have been followed or not. In the present case, ample opportunity had been accorded to the appellant and hence, the entire departmental proceedings cannot be vitiated.
30. Sri Devesh Vikram further submitted that the petitioner-appellant was rightly accorded punishment of compulsory retirement vide order dated 26.04.2018 and his entire service record was taken into account. There are no allegation of malafide against the authorities either in the submissions made before the enquiry officer, in the writ petition or even in the present Special Appeal. The order dated 28.04.2020 passed by the Writ Court does not suffer from any illegality or infirmity so as to shake the very consciousness of the Court to warrant interference and the appeal is liable to be dismissed.
FINDINGS OF THE LEARNED SINGLE JUDGE
31. Learned Single Judge after noticing the arguments advanced on behalf of the parties observed in the impugned judgment that the crux of the matter in the departmental enquiry was to ascertain as to whether the act of the petitioner in getting a video film recorded at his official residence in relation to the prisoners of the District Jail, Muzaffarnagar was condemnable, inasmuch as, the petitioner being Deputy Jailor was not required to indulge in such activity. The enquiry officer categorically recorded that the petitioner had indulged in unnecessary dialogue with the media personnel for which he was not authorised. The petitioner has nowhere stated in his reply that he did not had any knowledge about the recording of his conversation with the Media personnels or that the same was to be telecasted on the television. No such defence had been taken by the petitioner before the enquiry officer and therefore, learned Single Judge had refused to consider the averments made in this regard for the first time in the writ petition.
32. So far as the challenge to the enquiry report dated 27.11.2017 and the punishment order is concerned, the case was set up by the petitioner before the learned Single Judge that the enquiry report was faulty and as such, the charge levelled against the petitioner in the chargesheet dated 7.10.2017 could not be proved in absence of the forensic examination of the compact disc. Learned Single Judge observed that while being posted as Deputy Jailor in the District Jail, Muzaffarnagar the petitioner had indulged in a dialogue with media personnel of Television Channel 'News Nation' and the video footage of the said conversation was recorded and telecasted. Once the said fact came into the knowledge of the department then the departmental enquiry was held with the specific charge framed of violation of the Code of Conduct laid down in the jail manual as also misconduct within the meaning of Rule 3(1)(2) and the same was found proved.
33. As far as the plea to vitiate the entire departmental enquiry is concerned, learned Single Judge opined that in such a matter the power of judicial review is limited and it is not possible for the Court to substitute its own view with the view taken by the disciplinary authority and arrive at a different conclusion. On the merits of the charge levelled in the departmental enquiry, learned Single Judge did not find any fault in the decision making process so as to vitiate the entire departmental proceeding or the decision of punishment taken by the disciplinary authority after the consideration of the enquiry report. The Learned Single Judge has observed that the petitioner was provided adequate opportunity to submit his reply at each and every stage and to participate in the departmental enquiry and instead of participating, the petitioner had indulged in repeated communications with the enquiry officer for deferring the enquiry proceedings. The petitioner had not submitted any reply to the chargesheet nor the petitioner had appeared before the enquiry officer on any of the dates fixed. Learned Single Judge did not find any good ground to set aside or quash the enquiry proceeding or the decision taken by the disciplinary authority on culmination of the departmental enquiry.
34. On the issue of jurisdiction of the disciplinary authority, learned Single Judge observed that the post of Inspector General (Prisons) was created by the Government of U.P in order to strengthen the administration and management of the prisons in the State of U.P. The post of Inspector General (Prisons) is in the same status as that of the Director General (Prisons) which was the appointing authority of the petitioner. It cannot be said that the Inspector General (Prisons) was not competent or lacked jurisdiction to conduct disciplinary proceedings against the petitioner. Moreover, the said issue was raised for the first time by means of the amendment brought in the writ petition in the year 2013 and no such dispute was raised by the petitioner during the course of departmental enquiry. Learned Single Judge was not convinced with the arguments of learned counsel for the petitioner that the Inspector General (Prisons) had no jurisdiction to initiate a departmental enquiry.
35. So far as the order of compulsory retirement dated 26.4.2018 is concerned, learned Single Judge was of the view that the order of compulsory retirement implies no stigma nor any suggestion of misbehavior. The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. The Government or the Screening Committee, as the case may be, shall have to consider the entire record of service before taking a decision in the matter. Considering totality of the materials and performance during the later years, the Government is expected to form its opinion whether an employee is to be compulsorily retired or not. Upon examination of the record, learned Single Judge found that the Screening Committee considered the entire service record of the petitioner, i.e. record of 10 years services rendered by him and it was found that three adverse entries were awarded to the petitioner after completion of departmental enquiries. The petitioner was found guilty of the charges of dereliction of duty and disobedience of orders of his superiors.
36. After perusal of the material available on record learned Single Judge had found that a departmental enquiry was also initiated against the petitioner on 03.10.2017 based on an inspection report dated 3.7.2012, wherein 4 mobile phones were recovered from a prisoner and the Deputy Inspector General (Prisons), Agra was appointed as an enquiry officer. The entire service record of the petitioner was placed before the Screening Committee, which reached at the conclusion that continuing the petitioner in Government service would not be in public interest. The material considered by the Screening Committee could not be said to be irrelevant or extraneous. It is not possible for the Court to look into the adequacy or sufficiency of material considered by the Screening Committee so as to form an opinion other than that, which has been formed by the Committee. The order of compulsory retirement cannot be said to have been passed as a punishment. The orders of adverse entries awarded to the petitioner record that the conduct of the petitioner was not found up to the mark. The recommendations of the Screening Committee based on the assessment of entire service record of the petitioner was duly approved by the competent officer and within the limited scope of judicial review, it was not possible for the learned Single Judge to take another view on the material placed on record. Learned Single Judge further found that the order of compulsory retirement is not stigmatic in nature and dismissed the writ petitions.
FINDINGS BY THE COURT
37. We have carefully considered the rival submissions placed by the learned counsels representing the respective parties at the bar and perused the record.
38. Before proceeding to consider the rival submissions, it would be appropriate to re-produce Rule 6 & 7 of Rules 1999 hereinafter:-
"6. Disciplinary authority. -
The appointing authority of a Government servant shall be his disciplinary authority, who, subject to the provisions of these rules, may impose any of the penalties specified in Rule 3 on him :
Provided that no person shall be dismissed or removed by an authority subordinate to that by which he was actually appointed :
Provided further that the Head of Department notified under the Uttar Pradesh Class II Services (Imposition of Minor Punishment) Rules, 1973, subject to the provisions of these rules, shall be empowered to impose minor penalties mentioned in Rule 3 of these rules :
Provided also that in case of a Government servant belonging to Group 'C' and 'D' posts, the Government, by a notified order, may delegate the power to impose any penalty, except dismissal or removal from service under these rules, to any authority subordinate to the appointing authority and subject to such conditions as may be prescribed therein.
7. Procedure for imposing major penalties. -
Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :
(i). The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii). The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority :Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.
(v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation :Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.
(viii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits :Provided that this rule shall not apply in following cases :
(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules."
39. Under the Rules, 1999 the Appointing Authority or the Disciplinary Authority has to issue an order, allowing the initiation of Disciplinary Proceedings against the Government servant. The Disciplinary Authority may himself inquire into the charges or appoint an officer subordinate to him as Inquiry Officer to inquire into the charges. The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called the charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority. The proposed documentary evidences alongwith the names of the witnesses, who are proposed to prove the same through oral evidence, if any, shall be mentioned in the charge-sheet. The charged Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witnesses mentioned in the charge-sheet and whether he desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has nothing to furnish in his defence and Inquiry Officer shall proceed to complete the inquiry ex-parte.
40. The undisputed facts reveal that the petitioner was appointed on the post of Deputy Jailor vide appointment letter dated 19.07.1997 issued by the Inspector General (Prisons). On 26.06.2013 while he was posted as Deputy Jailor at District Jail Muzaffarnagar, the alleged sting operation was conducted by the News channel and he was placed under suspension on 03.10.2013. The suspension order was stayed by this Court until further orders vide an interim order dated 22.10.2013 passed in Writ A No.57883 of 2013. Consequently, the Inspector General (Prisons) vide an order dated 08.11.2013 had reinstated the petitioner and the disciplinary proceedings were dropped on 06.03.2014. Subsequently the Additional Inspector General (Prisons) submitted the preliminary enquiry on 30.07.2014. The Deputy Inspector General (Prisons) was appointed as enquiry officer on 20.04.2017 and the charge sheet dated 30.05.2017 was served upon the petitioner. The Enquiry Officer had submitted a report on 14.11.2017. After considering the aforesaid report, the Inspector General (Prisons) had passed an order on 22.02.2018 and imposed major punishment of stoppage of three increments of the petitioner with cumulative effect. Consequently, the Screening Committee had decided to retire the petitioner compulsorily.
41. As per the appointment letter dated 19.07.1997, the services of the petitioner are governed under the Rules, 1980. As per Rule 3 (a) of the Rules, 1980 the appointing authority of the petitioner is the Inspector-General of Prisons, Uttar Pradesh. In the present case, the Deputy Inspector General of Prisons was the enquiry officer. Under Rule 6, such Disciplinary Authority is the Appointing Authority of the charged employee and as such, the Inspector General of Prisons (ex-cadre) was not competent to impose such punishment. Under Rule 7 (ii) of the Rules, 1999, the chargesheet is required to be approved by the Disciplinary Authority before an enquiry is initiated. The procedure prescribed under the Rules, 1999 was not followed while holding the departmental proceedings pursuant to which the punishment order of stoppage of three increments of the petitioner has been passed.
42. The report of the Screening Committee dated 24.04.2018 is appended as Annexure No.29 to the paper book at page 234, wherein the case of the petitioner has been considered at serial no.13 and the said report is as under:-
"निम्नांकित तालिका के क्रमांक-13 पर अंकित कार्मिक श्री शैलेंद्र कुमार श्रीवास्तव, उप कारापाल के पूर्ण सेवाकाल के अभिलेखों से स्पष्ट है कि उनके विरुद्ध विभिन्न आरोपों में अनुशासनिक कार्यवाहियां संस्थित की गयी एवं दण्डादेश पारित किये गये, फिर भी इनमें अपेक्षित सुधार परिलक्षित नहीं हुआ। श्री श्रीवास्तव के विगत 10 वर्ष के सेवाकाल में स्टिंग आपरेशन के दौरान बंदियों से धन लिये जाने जैसे गंभीर आरोपों के सिद्ध पाये जाने पर 01 वृहद दण्ड एवं 03 परिनिन्दा के दण्ड दिये गये हैं। उक्त के दृष्टिगत समिति द्वारा उनकी दक्षता व कार्य का स्तर सरकारी सेवा हेतु समुचित नहीं पाया गया।"
43. A perusal of aforesaid report clearly established that only departmental proceeding and punishment order have been mentioned in the report, which has been considered by the Screening Committee. There is no subjective satisfaction recorded by the Screening Committee. The entire service record of the petitioner has not at all been considered by the respondent, while passing the impugned order. No finding has been recorded by the Screening Committee to the effect that the continuation of the petitioner in public service is not in interest of the public. The only opinion recorded by the Screening Committee is as under:
"इस प्रकार सरकारी सेवाओं में दक्षता सुनिश्चित करने के लिए कारागार विभाग में समूह-"ख" अराजपत्रित श्रेणी के अधिकारियों (उप कारापाल) की अनिवार्य सेवानिवृत्ति हेतु गठित स्क्रीनिंग कमेटी सम्यक् विचारोपरान्त उपर्युक्त तालिका के क्रमांक-01 पर उल्लिखित श्री सत्य प्रकाश दूबे, उप कारापाल, क्रमांक-06 पर उल्लिखित श्री ओम प्रकाश, उप कारापाल एवं क्रमांक-13 पर उल्लिखित श्री शैलेंद्र कुमार श्रीवास्तव, उप कारापाल को उपयुक्त पाते हुए अनिवार्य रूप से सेवानिवृत्त किये जाने की संस्तुति करती है।"
POSITION OF LAW FOR COMPULSORY RETIREMENT
44. The law relating to compulsory retirement is also well settled. The object of compulsory retirement from service is to weed out the dead wood in order to maintain a high standard of efficiency in service and that the scope of the judicial scrutiny by the higher courts in such matters is very limited and is confined to finding out as to whether there was material on the basis of which an opinion could have been reasonably formed that it would be in public interest to retire the employee concerned. It is also equally well settled that formation of opinion for compulsory retirement is based on subjective satisfaction of the authority concerned, however, such satisfaction has to be based on a valid material and further that it is also permissible for the courts to ascertain as to whether the valid material existed on which subjective satisfaction of the authority concerned is based or not.
45. In the State of Uttar Pradesh v. Madan Mohan Nagar15 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.
46. The object of compulsory retirement of a government servant was highlighted by the Apex Court in Allahabad Bank Officers' Association and Another vs. Allahabad Bank and Others16 in the following words: -
"5. The power to compulsorily retire a government servant is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution. The object of compulsory retirement is to weed out the deed wood in order to maintain efficiency and initiative in the service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration. Generally speaking, Service Rules provide for compulsory retirement of a government servant on his completing certain number of years of service or attaining the prescribed age. His service record is reviewed at that stage and a decision is taken whether he should be compulsorily retired or continued further in service. There is no levelling of a charge or imputation requiring an explanation from the government servant. While misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held - and there is no duty to hold an enquiry - is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal they form the very basis on which the order is made, as pointed out by this Court in Shyam Lal v. State of U.P. and State of Bombay v. Saubhagchand M. Doshi. Thus, by its very nature the power to compulsorily retire a government servant is dismissal etc. for misconduct. A government servant who is compulsorily retired does not lose any part of the benefit that he has earned during service. Thus, compulsory retirement differs both from dismissal and removal as it involves no penal consequences."
".................. 17. The above discussion of case-law makes it clear that if the order of compulsory retirement casts a stigma on the Government servant in the sense that it contains a statement casting aspersion on his conduct or character, then the court will treat that order as an order of punishment, attracting provisions of Article 311(2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order, the court would infer therefrom that the real intention of the Government was to punish the government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the Government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether Page 9 of 27 Civil Appeal No. 6161 of 2022 the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it."
(Emphasis supplied)
47. In Union of India v. Col. J.N. Sinha and another17 it has been observed by the Apex Court that :
"Fundamental Rule 56(j) does not in terms require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. It says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. If that authority bona fide forms that opinion the correctness of that opinion cannot be challenged before courts though it is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision."
48. In Swami Saran Saxena v. State of U.P.18 the Apex Court held as under:-
"3. Several contentions have been raised in this appeal by the appellant, who appears in person. In our judgment, one of them suffices to dispose of the appeal. The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for. This conclusion follows inevitably from the particular circumstances, among others, that the appellant was found worthy of being permitted to cross the second efficiency bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second efficiency bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order.
49. In Baldev Raj Chadha v. Union of India19, emphasizing the fact that exercise of powers under Fundamental Rule 56(j) must be bona fide and promote public interest, the Apex Court observed that : -
"25. The whole purpose of Fundamental Rule 56(j) is to weed out the worthless without the punitive extremes covered by Article 311 of the Constitution. But under the guise of 'public interest' if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. The exercise of power must be bona fide and promote public interest." 26. "An officer in continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement cannot be compulsorily retired on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms."
50. In Ram Ekbal Sharma v. State of Bihar and another20 it was observed by the Apex Court that in order to find out whether an order of compulsory retirement is based on any misconduct of the government servant or the said order has been made bona fide, without any oblique or extraneous purpose, the veil can be lifted. Following are the pertinent observations made in the said decision:
"32. On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such case cannot deter the court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in 'Anoop Jaiswal case'. This being the position the respondent-State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide."
(Emphasis supplied)
51. In State of Gujarat and Another vs. Suryakant Chunilal Shah21, a case where the State Government had challenged the judgment of the Division Bench of the High Court of Gujarat that had held that the order of compulsory retirement passed against the respondent therein was bad, as there were no adverse entries in his Confidential Report and his integrity was not doubtful at any stage, the Apex Court held thus : -
"28. There being no material before the Review Committee, inasmuch as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll subsequent to the respondent's promotion to the post of Assistant Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the case, was punitive having been passed for the collateral purpose of his immediate removal, rather than in public interest."
52. In State of Gujarat vs. Umedbhai M. Patel22 the Apex Court has delineated the following broad principles that ought to be followed in matters relating to compulsory retirement : -
"11. The law relating to compulsory retirement has now crystallized into a definite principle, 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 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 the 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 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 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."
53. In Nand Kumar Verma v. State of Jharkhand and Others23 the Apex Court has once again highlighted the permissibility of ascertaining the existence of valid material by a Court for the authorities to pass an order of compulsory retirement and observed thus: -
"34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the Courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy..........."
(Emphasis supplied)
54. In Pramod Kumar Bajaj vs. Union of India24, the Apex Court held that an order of premature retirement, which is actually punitive in nature and is intended to short circuit the disciplinary proceedings and to ensure his immediate removal from service, was tainted by institutional malice and could not be sustained. Relevant portion of the judgement is reproduced hereinafter:-
"38. The appellant has made allegations of institutional bias and malice against the respondents on the plea that the Chairman, CBDT who was a Member of the Review Committee, was facing three contempt proceedings relating to the appellant's service dispute, wherein notices had been issued by the High Court as well as the Tribunal. There is no doubt that rule of law is the very foundation of a well-governed society and the presence of bias or malafides in the system of governance would strike at the very foundation of the values of a regulated social order. The law relating to mala fide exercise of power has been the subject matter of a catena of decisions [Refer: S. Pratap Singh v. State of Punjab AIR 1964 SC 72; Jaichand Lal Sethia v. State of W.B. AIR 1967 SC 483; J.D. Srivastava v. State of M.P. and others (1984) 2 SCC 8; and Express Newspapers pvt. Ltd. And others vs. Union of India and others (1986) 1 SCC 133. It has been repeatedly held that any exercise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent or is on the face of it, so patently arbitrary that it cannot withstand judicial scrutiny, must be struck down. In the instant case, though the appellant has levelled allegations of institutional bias and prejudice against the respondents, particularly against the then Chairman, CBDT who was a Member of the Review Committee, the said officer was not joined by the appellant as a party before the Tribunal or the High Court, for him to have had an opportunity to clarify his stand by filing a counter affidavit. Hence, these allegations cannot be looked into by this Court.
39. Dehors the aforesaid allegations of institutional bias and malice, having perused the material placed on record, we find merit in the other grounds taken by the appellant. It is noticed that though FR 56(j) contemplates that the respondents have an absolute right to retire a government servant in public interest and such an order could have been passed against the appellant any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of compulsory retirement was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as 'Outstanding' and had assessed his integrity as 'Beyond doubt'. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public.
40. In view of the above discussion, it is deemed appropriate to reverse the impugned judgment dated 31st May, 2022 and quash and set aside the order dated 27 th September, 2019 passed by the respondents, compulsorily retiring the appellant. Resultantly, the adverse consequences if any, flowing from the said order of compulsory retirement imposed on the appellant, are also set aside. The appeal is allowed and disposed of on the aforesaid terms while leaving the parties to bear their own costs."
CONCLUSION
55. A departmental inquiry against Government servant is not to be treated as a casual exercise and the principles of natural justice are required to be observed so as to ensure that not only justice is done but is manifestly seen to be done. The object is to ensure that the delinquent employee is treated fairly in proceedings, which may culminate in imposition of a major penalty against him. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the delinquent employee is afforded a reasonable opportunity to defend himself against charges on which inquiry is held and has to be given an opportunity to deny his guilt and establish his innocence. The administrative authorities are obliged in law to follow their own regulations, policies and procedures with regard to conduct of departmental proceedings and non-adherence thereto would have potential of causing serious prejudice to the person concerned in the inquiry proceedings and would clearly amount to denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into. In the present case, as the inquiry officer failed to fix any date, place or time in the conduct of inquiry and the absence of any witness having been examined to support the charges levelled against the petitioner has led to a situation where the delinquent has been unheard.
56. In the light of the above judgments of the Hon'ble Apex court and upon considering the aforementioned facts and circumstances, as well as upon thoughtfully considering the arguments advanced by the learned counsels for the parties at bar, we are of the opinion that the order of compulsory retirement does not reflect any satisfactory reasons for dispensing with the services of the appellant. Learned Single Judge while passing the impugned judgement and order dated 28.04.2020 has failed to appreciate the real controversy involved in the case, as discussed hereinabove, and has declined to entertain the writ petitions by holding that the entire service record of the petitioner was placed before the Screening Committee which reached at the conclusion that continuing the petitioner in Government service would not be in public interest. The scope of interference of the Writ Court is very limited and it is not possible to take another view on the material placed on record.
57. This Court, upon carefully perusing the reasons recorded by the Screening Committee while recommending the compulsory retirement of the petitioner, does not find that the same was based solely upon the charge, which formed the subject matter of the disciplinary proceedings. The Screening Committee while making its recommendations has taken into consideration the annual confidential entries, disciplinary proceedings, and orders of punishment cumulatively. The opinion was formed by the Screening Committee without taking into consideration the fact that the petitioner was reinstated and in the deparmental proceedings he was already punished with the major penalty of stoppage of three increments.
58. From the perusal of the report dated 24.04.2018, it is clear that the Screening Committee has not recorded any subjective satisfaction to the effect that the continuation of petitioner is not in interet of the public but in a vague term has recorded the findings that the petitioner is fit for compulsory retirement. The report further established that the service record of the petitioner has not at all been considered by the respondent while passing the impugned order of compulsory retirement. Thus, the order dated 26.04.2018 casts stigma and also amount to double punishment.
59. It is well settled law that the formation of opinion for compulsory retirement has to be based on the subjective satisfaction of the authority concerned and such satisfaction must be based on a valid material. It is permissible for the Courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the Screening Committee, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. We cannot approve the view taken by the learned Single Judge that there is no procedural flaw in formation of opinion by the Screening Committee for compulsory retirement of the appellant-petitioner.
60. We are, therefore, of the firm view that the order of compulsory retirement in the given facts and circumstances of the case was infact unwarranted and the compulsory retirement is also punitive in nature. Moreover, the compulsory retirement order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public.
DIRECTIONS BY THE COURT
61. In view of the above discussion, we find ourselves unable to accord approval to the findings returned by learned Single Judge while deciding Writ A No.12429 of 2018 and Writ A No.57883 of 2013 vide impugned judgement and order dated 28.4.2020. Accordingly, we deem it appropriate to reverse the judgement and order dated 28.04.2020 passed by learned Single Judge which is hereby reversed. Consequently, the order of compulsory retirement dated 26.04.2018 is also set aside and the appellant-petitioner is entitled to be reinstated in service. Resultantly, the adverse consequences, if any, flowing from the said order of the compulsory retirement imposed on the appellant-petitioner are also set aside.
62. So far as the order dated 22.02.2018 awarding major punishment of stoppage of three increments with cumulative effect against the appellant-petitioner is concerned, he is accorded liberty to file representation/appeal against the said order in accordance with the relevant rules.
63. The Special Appeal is partly allowed and both the writ petitions are disposed of, accordingly. No order as to costs.
Order Date :-22.08.2024 RKP