Chattisgarh High Court
Emmanuel Bara vs State Of Chhattisgarh on 26 July, 2022
Author: P. Sam Koshy
Bench: P. Sam Koshy
-1-
N/AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WRIT PETITION (SERVICE) NO. 2495 OF 2018
Emmanuel Bara, S/o Late Shri Chamru Bara, aged about 59 years,
R/o F-11/12, Gulsan Vatika, Sejbahar, Raipur (C.G.)
... Petitioner
versus
1. State of Chhattisgarh, through: Secretary, Department of General
Administration, Mahanadi Bhawan, Post Office Mantralaya, P.S. Rakhi,
Naya Raipur, District Raipur (C.G.)
2. The Secretary, Department of Commercial Tax (Registration),
Mahanadi Bhawan, Post Office Mantralaya, P.S. Rakhi, Naya Raipur,
District Raipur (C.G.)
3. The Inspector General of Registration and Superintendent of Stamps,
near State Election Commission, Old Mantralaya, near DKS Bhawan,
Raipur (C.G.)
... Respondents
For Petitioner : Mr. Vipin Tiwari, Advocate.
For Respondents : Mr. Rahul Jha, Govt. Advocate.
Hon'ble Shri Justice P. Sam Koshy
Order on Board
[26/07/2022]
1. The present Writ Petition has been filed by the Petitioner aggrieved by the Order dated 31.1.2018 i.e. Annexure P-1 passed by Respondent No.3 by which the services of the Petitioner have been placed under compulsory retirement.
2. Brief facts relevant for the disposal of the case are that the Petitioner was serving as Assistant Superintendent when the impugned Order was passed on 31.1.2018 putting his services under compulsory retirement. He was appointed in the office of the Registrar of Stamps as Lower Division Clerk on 11.12.1982. In due course of time, he was promoted to the post of Upper Division Clerk and finally vide Order dated 25.6.2013 he got further promotion on the post of Assistant Superintendent in the Office of the Registrar of Stamps. He was posted at Raipur during the relevant point of time.
-2-
3. In between from 2015 to 2017 on account of an unfortunate accident that Petitioner met with, he suffered fracture on his spinal cord so also both of his legs also got fractured in addition to the other various ailments that he suffered. He availed medical leave for the period from 5.1.2015 to 26.6.2017 on account of the accident that he met with, subsequent to his recovering from his injuries and ailments. He submitted his joining for resuming his duties, on 27.6.2017 vide Annexure R-2. The said application was duly scrutinized by the Respondents and they had allowed the same vide Annexure P-3 dated 27.1.2018 and the entire leave period between 5.1.2015 to 26.6.2017 got regularized. After regularization the entire leave period, the Authorities found that there was around 174 days of earned leave still left to his credit as on date i.e. 31.12.2014.
4. Petitioner having resumed his duties on 27.6.2017 continued to discharge his duties till abruptly when the impugned Order of compulsory retirement was passed without issuing of any notice or notice period by making a payment of three months of salary by way of cheque. It is this Order which is under challenge in the present Writ Petition.
5. Learned Counsel for Petitioner submits that the only ground for placing the services of the Petitioner under compulsory retirement is his absence from duty between 5.1.2015 and 26.6.2017. He submits that the Authorities concerned or the Committee which had scrutinized the claim of the Petitioner had not perused the service record of the Petitioner for the period earlier to his medical leave and also subsequent to his resuming the duties. There is no satisfactory reason whatsoever available which could have led the Committee reaching to the conclusion of the services of the Petitioner were not productive or non-effective in the discharge of his duties. According to learned Counsel, the Petitioner cannot be penalized -3- only for availing the leave that is otherwise provided by the Government. The leave that was availed by the Petitioner also was under the precarious condition which arose on account of the accident that he had met with. Learned Counsel for Petitioner thus prayed for the quashment of the impugned Order (Annexure P-1) and for appropriate direction for consequential relief flowing after the quashment of the impugned Order.
6. Learned Government Advocate on the other hand submits that it is the correspondence made by the Petitioner himself which was taken into consideration by the Committee scrutinizing his case, for the purpose of passing of the impugned Order. According to learned Government Advocate, in the leave application the Petitioner himself has mentioned that now he was able to move around slightly. That goes to show that he was not keeping good health and under the circumstances if the Committee has taken the decision, the same cannot be found fault with. Thus, learned Government Advocate prayed for the dismissal of the Writ Petition itself.
7. Having considered the submissions put forth on either side and on perusal of record, undoubtedly, the impugned Order has been passed based on the recommendation made by the Committee which was scrutinizing the case of the employees of the department. The finding of the said Committee in the case of the Petitioner would be quite relevant to be taken note of, which for ready reference is reproduced below :-
**lgk;d v/kh{kd & lfefr ds le{k izLrqr vfHkys[kksa ds vk/kkj ij ;g ik;k x;k fd egkfujh{kd iath;u dk;kZy; esa inLFk Jh ,ekuq,y cMk yEcs le; ls fnukad 05-01-2015 ls 26-06-2017 rd fcuk vodk'k Lohd`r djk;s drZO; ij vuqifLFkr Fks rFkk dk;kZy; esa izLrqr muds Lo;a ds vkosnu fnukad 27-06-2017 esa mYysf[kr vuqlkj mUgsa fofHkUu izdkj dh chekjh ds lkFk&lkFk 'kqxj] gkbZ CyM izs'kj ,oa jh<+ dh gÏh esa QzSDpj] iSj esa QzSDpj gksus ls lkekU; :i ls pyus&fQjus esa vleFkZrk O;Dr dh xbZ gSA egkfujh{kd iath;u }kjk Hkh 'kklu dks i= dzekad 1008@LFkk-lsok@2017] fnukad 12-07-2017 ls izsf"kr izfrosnu esa Jh ,ekuq,y cMk dh dk;Z djus dh {kerk mi;qDr ugha gksuk izfrosfnr fd;k x;k gSA vr% lfefr dh jk; esa Jh ,ekuq,y cMk yksdfgr esa 'kkldh; lsok esa fujaaUrj j[kus ;ksX; Ukgh gSa] blfy, lfefr Jh ,ekuq,y cMk] lgk;d v/kh{kd dh vfuok;Z lsokfuo`fRr fd vuq'kalk djrh gSA** -4-
8. A plain reading of the aforesaid recommendation would clearly reflect that the entire recommendation of the Committee is primarily on the ground of the absence of the Petitioner from duty for the period from 5.1.2015 to 26.6.2017. Apart from this, there is no reason which has been either assessed by the Committee or perused by the Committee or available with the Committee, which led to the Committee's reaching to the conclusion that the Petitioner is a fit case for being declared as a deadwood.
9. As regards the period of absence is concerned, a plain perusal of Annexure P-3, dated 27.1.2018 i.e. the decision that was taken by the Respondent Authorities on the application put forth by the Petitioner for regularizing the period of absence, the Authorities on due consideration of the entire facts and circumstances did in-fact regularize the entire leave period i.e. from 5.1.2015 to 26.6.2017. Once when the Department has regularised the leave or the absence from duty, the same cannot be taken or treated either as a misconduct or as an act of dereliction from duty.
10. Moreover, the Committee has not given any indication nor is there any material available on record to show that after the Petitioner had resumed his duties on 27.6.2017, he was not able to discharge his duties normally. The fact that the Petitioner had sufficient leave to his credit stands established from the order of regularisation of the leave by the Department vide Annexure P-3, dated 27.1.2018. The said document reflects that even after the regularisation of the entire leave of the Petitioner there was still around 174 days of leave left to his credit. This further gives the indication that the Petitioner was not in the habit of taking leave earlier nor is there any material available that even after his resuming the duties he was not able to discharge the duties normally.
-5-
11. So far as the law in respect of compulsory retirement is concerned, the Hon'ble Supreme Court as early as in the case of "M.S. Bindra vs. Union of India & Others" [1998 (7) SCC 310] in Paragraph-13 held as under:
"13. While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Firut Repente Turpissimus" (no one becomes dishonest all on a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity"."
12. The Hon'ble Supreme Court in the case of "National Aviation Company of India Limited vs. S. M. K. Khan" [2009 (5) SCC 732] in Paragraphs 13 to 16 has held as under:-
"13. An order of compulsory retirement in pursuance of a rule/regulation which enables the competent authority to prematurely retire an employee, on the formation of a bona fide opinion that continuation of the employee in service will not benefit the institution or be in the interest of the institution (or will not be in public interest where the employee is a government servant), on review of the performance/service record of the employee, on the employee attaining the specified age or completing the specified period of service, is valid and not open to challenge. It is neither a punishment nor considered to be stigmatic. Where the compulsory retirement, is not by way of punishment for a misconduct, but is an action taken in pursuance of a valid condition of service enabling the employer to prepone the retirement, the action need not be preceded by any enquiry and the principles of natural justice have no application.
-6-
14. The unsatisfactory service of the employee which may include any persistent misconduct or inefficiency furnishes the background for taking a decision that the employee has become a dead wood and that he should be retired compulsorily. Such `compulsory retirement' is different and distinct from imposition of a punishment of compulsory retirement (or dismissal/removal) on a specific charge of misconduct, where the misconduct is the basis for the punishment. The difference is on account of two factors :
Firstly, the employee on account of completing a particular age or number of years of service falls within the zone where his performance calls for assessment as to whether he is of continued utility to the employer or has become a deadwood or liability for the employer. Secondly, the record of service, which may include poor performance, unsatisfactory service or incidentally any recent conduct (which if separately considered may constitute a misconduct subject to punishment) when considered as a whole, leads the Reviewing Authority to the conclusion that the employee in question is not fit to be continued in service and not of utility to the employer. Therefore, any incidental reference to unsatisfactory service, or any remarks in the context of explaining the reason for compulsory retirement under the relevant rule, in the letter of compulsory retirement will not be considered as stigmatic, even though read out of context, they may be capable of being construed as allegations of misconduct.
15. Any order of compulsory retirement in terms of the rule/regulation providing for such compulsory retirement is not open to interference unless shown to be malafide or arbitrary or not based on any background material at all relating unsatisfactory service justifying the premature retirement.
16. When an order of compulsory retirement purports to be one under the rule/regulation providing for such premature retirement, the proper approach of the court would be to consider whether the order is sustainable with reference to the requirements of the relevant rule, rather than examining whether the order could also be construed as a punishment for misconduct - vide Baikuntha Nath Das v. Chief District Medical Officer [1992 (2) SCC 299], Allahabad Bank Officers' Association v. Allahabad Bank [1996 (4) SCC 504], I.K.Mishra v. Union of India [1997 (6) SCC 228], State of Uttar Pradesh v. Lalsa Ram [2001 (3) SCC 389] and M. L. Binjolkar vs. State of Madhya Pradesh [2005 (6) SCC 224]."
13. It cannot be disputed that for passing an order of compulsory retirement, there has to be a subjective satisfaction of the competent Authority. The competent Authority should take a decision on the basis of cogent materials available on record. So far as the scope of interference is -7- concerned, unless it is shown that the order of compulsory retirement was passed arbitrarily and without application of mind or that the formation of opinion to retire compulsorily was based on no evidence or that the order of compulsory retirement was totally perverse, the Court cannot as a matter of routine interfere with an order of compulsory retirement.
14. The Hon'ble Supreme Court in the case of "Madhya Pradesh State Cooperative Dairy Federation & Another vs. Rajnesh Kumar Jamindar & Others" [2009 (15) SCC 221] referring to all the previous decisions on the issue has summarized or laid down the situations under which the order of compulsory retirement could be interfered with:-
"35. The law relating to compulsory retirement in public interest is no long res integra. The provisions had been made principally for weeding out dead wood. An order of compulsory retirement being not penal in nature can be subjected to judicial review inter alia :
i. when it is based on no material;
ii. when it is arbitrary ;
iii. when it is without application of mind; and iv. when there is no evidence in support of the case.
xxx xxx xxx
38. In "Pritam Singh v. Union of India & Others" [2005 (9) SCC 748], the Hon'ble Supreme Court further held as under: "13. In our opinion, the High Court has committed an error in not interfering with the punishment of compulsory retirement even though the appellant submitted that the misconduct alleged against him was not at all an offence or even a serious mistake. The act of misconduct alleged against him was that he supplied a list of absentee details to one of the employees, who was fighting a case before the Tribunal against the Railways. This list contained the ticket numbers of the workers of a shop, who were absent on that date. This was neither a confidential document nor a privileged document. It contained details to which the employee concerned had a right of information. The appellant being a Superintendent Grade II and in charge of the information acted bona fide in good faith while supplying the information. In our opinion, this kind of an act was neither a misconduct nor a serious mistake. When the charges were found proved against the appellant, the appellant admitted that he had supplied the absentee details."-8-
15. The aforesaid observations of the Hon'ble Supreme Court clearly gives the broad parameters and guidelines which ought to have been complied with by the Department before placing an employee/officer on compulsory retirement.
16. Likewise, the Hon'ble Supreme Court again in the case of "Nand Kumar Verma vs. State of Jharkhand and Others" [2012 (3) SCC 580] in Paragraph-34 has given a broad outline as to the entries which would be relevant for the purpose of formation of an opinion before placing an employee/officer for compulsory retirement. For ready reference, Paragraph-34 of the said Judgment is reproduced herein under:-
"34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the concerned authority 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 ACR's. There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACR's which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs."
17. Recently, again in the case of "Rajasthan State Road Transport Corporation and Others Vs. Babu Lal Jangir [2013 (10) SCC 551], the Hon'ble Supreme Court in Paragraphs 23 & 24 held as under:
"23. The principle of law which is clarified and stands crystallized after the judgment in Pyare Mohan Lal v. State of Jharkhand and Ors.; 2010 (10) SCC 693 is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this 'washed off theory' will have no application when case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The -9- rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration an earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant.
24. Having taken note of the correct principles which need to be applied, we can safely conclude that the order of the High Court based solely on the judgment in the case of Brij Mohan Singh Chopra was not correct. The High Court could not have set aside the order merely on the ground that service record pertaining to the period 1978-90 being old and stale could not be taken into consideration at all. As per the law laid down in the aforesaid judgments, it is clear that entire service record is relevant for deciding as to whether the government servant needs to be eased out prematurely. Of course, at the same time, subsequent record is also relevant, and immediate past record, preceding the date on which decision is to be taken would be of more value, qualitatively. What is to be examined is the "overall performance" on the basis of "entire service record" to come to the conclusion as to whether the concerned employee has become a deadwood and it is public interest to retire him compulsorily. The Authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the Authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee "rendered himself a liability to the institution", there is no occasion for the Court to interfere in the exercise of its limited power of judicial review."
18. Based on the aforesaid legal principles and the ratio laid down by the Hon'ble Supreme Court in the catena of Judgments, what culls out broadly is that while passing an order of compulsory retirement there has to be overall assessment of the entire service record of the employee which should be taken note of by the Department. The assessment made by the Department/Committee in the instant case cannot be said to be proper, -10- legal and justified and the same also cannot be said that there was subjective satisfaction of the Authorities before formation of an opinion for placing the Petitioner on compulsory retirement.
19. Thus, for all the aforesaid reasons, this Court is of the opinion that the impugned Order dated 31.1.2018 (Annexure P-1) is bad in law and is also without cogent materials available on record. The same therefore deserves to be and is accordingly set aside/quashed, with all consequential benefits to flow.
20. Writ Petition accordingly stands allowed. No order as to costs.
Sd/-
(P. Sam Koshy)
/sharad/ Judge