Chattisgarh High Court
S.R.Upadhyaya vs State on 2 March, 2017
Author: Manindra Mohan Shrivastava
Bench: Manindra Mohan Shrivastava
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No.2488 of 2005
• S.R.Upadhyaya
---- Petitioner
Versus
• State
---- Respondent
For Petitioner : Shri Pragalbh Sharma, Advocate
For Respondent/State : Shri Manish Nigam, Panel Lawyer
Hon'ble Shri Justice Manindra Mohan Shrivastava
Order On Board
02/03/2017
The petitioner was compulsorily retired under Rule 42 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (For short "the Rules of 1976"), having completed 25 years of service and at the age of 56 years vide impugned order dated 16-01-1998. It is this order which was challenged by the petitioner by filing Original Application before the Madhya Pradesh State Administrative Tribunal, Bench at Raipur and after abolition of the Tribunal, this case was transferred to this Court.
2. The petitioner made an entry into the government service initially as a Assistant Clerk in the Government College of Engineering and Technology, Raipur in the year 1960. Later on, the petitioner faced direct selection examination successfully and vide order dated 21-02-1967, he was appointed as Marketing Inspector. The petitioner continued on this post for a very long time, for almost 25 years in the same capacity. Vide order dated 29-04-1993, he was confirmed on the post of Circle Organizer, which is 2 equivalent to the post of Marketing Inspector. Soon thereafter, the petitioner was rewarded with promotion vide order dated 25-01-1994, when he was promoted as Block Education Officer in the Tribal Department. Vide order dated 13-11-1996, charge sheet was issued against the petitioner which was duly replied by the petitioner also. A show cause notice was given to the petitioner on 20-05-1997 proposing imposition of minor penalty of withholding five increments without cumulative effect. The petitioner replied this also but no orders were passed in the departmental enquiry. However, the impugned order came to be passed, by which, the petitioner was compulsorily retired.
3. Assailing correctness and validity of the order of compulsory retirement, learned counsel for petitioner argued in extenso and submitted that the impugned order is not in bonafide exercise of power of compulsory retirement under Rule 42 of the Rules of 1976. Learned counsel for the petitioner submits that the entire service records of the petitioner were not examined by the respondent authorities. The purpose of compulsory retirement is to weed out the deadwood but nothing is indicated from the service records of the petitioner to reach to such a conclusion. It is further argued that the petitioner had been rewarded with promotion in the year 1994 which renders all adverse entries against him, prior to that order of promotion, inconsequential. After his promotion, charge sheet was issued to the petitioner, which was duly replied but no penalty was imposed on the petitioner, which only means that the there was not enough material found in the departmental enquiry to justify imposition of any penalty . However, after some time, the petitioner was compulsorily retired from service under the cloak of Rule 42 of the Rules of 1976, object of which, is not to punish. Learned counsel for the petitioner argued that from the reading of the minutes of meeting, in which, decision was taken to compulsory retire the petitioner, records of the performance of recent past have not been duly 3 adverted to. Finding regarding adverse entries have been recorded contrary to records, promotion granted in the year 1994 has not been kept in consideration and emphasis has been given to performance of remote past by ignoring records of the recent past. Therefore, the decision to compulsory retire the petitioner is arbitrary and unreasonable. Moreover, it is contended, only inference which could be drawn is that the authority had ulterior motive to punish the petitioner without there being any material found against him in the departmental enquiry. Hence, the impugned order is illegal. Reliance has been placed on the decision of the Supreme Court in the case of Madhya Pradesh State Cooperative Dairy Federation Limited and Another vs. Rajnesh Kumar Jamindar and others, (2009) 15 SCC 221.
4. Per contra, learned State counsel submits that the exercise undertaken by the respondent is an attribute of the government service. He submits that while an employee has a right to continue in service till he completes 25 years of service or attains the age of 55 years, his further continuance thereafter is subject to he being a useful employee. According to learned State counsel, the records of the petitioner were minutely scrutinized by the Screening Committee. According to him, independent service records of 31 years right from his initial date of appointment were taken into consideration and it was only upon consideration of the said records, this bonafide opinion was formed that the petitioner has outlived his utility and became deadwood. On this bonafide opinion formed on the basis of relevant material, decision was taken to compulsory retire the petitioner, which is not a punishment. It is submitted that the petitioner was nevertheless entitled to pension and other retiral benefits which he has already received. Therefore, the impugned order does not suffer from any illegality.
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5. Before examining the material on record, it will be useful to state that in the decision of Madhya Pradesh State Cooperative Dairy Federation Limited (supra) cited by learned counsel for the petitioner, Their Lordships in the Supreme Court have surveyed the development of law with regard to scope of judicial review in the matter of challenge to order of compulsory retirement, where the employer has formed an opinion that the employee has became deadwood and has outlived his utility.
6. The object behind compulsory retirement of those government servants, who have outlived their utility and have became deadwood was comprehensively dealt with in the case of Baikunth Nath Das vs. Chief District Medical Officer, (1992) 2 SCC 299. While explaining the legal position with regard to object of compulsory retirement and scope of judicial review in the case of Madhya Pradesh State Cooperative Dairy Federation Limited (supra), the decision in the case of Baikunth Nath Das (supra) was also taken into consideration. The decision subsequent thereto in the case of State of Gujrat vs. Umedbhai M. Patel, (2001) 3 SCC 314 and Pritam Singh vs. Union of India, (2005) 9 SCC 748 and many other decisions were referred to and relied upon which I deem it appropriate to reproduce hereinbelow:-
36. In Baikuntha Nath Das and Another v. Chief District Medical Officer, Baripada and Another [(1992) 2 SCC 299], this Court held:
"34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) 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.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial 5 scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or
(b) that it is based on no evidence or (c) that it is arbitrary -- in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter --of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."
37. In State of Gujarat v. Umedbhai M. Patel [(2001) 3 SCC 314], this Court held:
"11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even 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."6
38. In Pritam Singh v. Union of India & Ors. [(2005) 9 SCC 748], this Court held:
"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.
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16. This Court in the case of Union of India v. G. Ganayutham, (1997) 7 SCC 463, while examining the scope of judicial review held that "reasonableness", "rationality" and "proportionality" are the grounds on the basis of which judicial review of the administrative order can be undertaken. Considering the facts extracted hereinbefore, we find that the exercise of power by the respondent falls in the category of arbitrary exercise of power."
42. The broad criteria, which are not only applicable generally for the aforementioned purpose, were required to be followed but there cannot be any doubt or dispute that the criteria laid down by the State was imperative in character. Thus, the Federation adopted the rules and circulars made or issued by the State Government. The Federation itself having formulated the criteria required to be applied for passing orders of compulsory retirement was, thus, bound thereby.
45. It is a well-settled principle of law that an order of compulsory retirement is found to be stigmatic inter alia, in the event the employer has lost confidence [See Chandu Lal v. Management of M/s. Pan American World Airways Inc. (1985) 2 SCC 727 at 730, para 8], or he has concealed his earlier record [ See Jagdish Parsad v. Sachiv, Zila Ganna Committee, Muzaffarnagar and Another (1986) 2 SCC 338 at 342-343, para 9]. He can, however, be subjected to compulsory retirement inter alia if he has outlived his utility [The State of Uttar Pradesh v. Madan Mohan Nagar, AIR 1967 SC 1260 at 1262].
46. In Allahabad Bank Officers' Association and Another v. Allahabad Bank and Others [(1996) 4 SCC 504], it was held:
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"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 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."
47. The question came up for consideration before a Division Bench of this Court in State of Gujarat v. Umedbhai M. Patel [(2001) 3 SCC 314] wherein Balakrishnan, J., as the learned Chief Justice then was, summarized the law, thus:
"11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even 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."8
7. The board principles laid down by the Supreme Court in the aforesaid decisions leave no manner of doubt that the provision of compulsory retirement under the statutory scheme of Rule 42 of the Rules of 1976 is not a measure of punishment but an exercise in public interest to weed out or to say, weed out those government servants, who have became deadwood and outlived their utility. The exercise, however, is required to be undertaken in a just and fair manner by taking into consideration, entire service records though records of the recent past have to be given more weightage. Moreover, in a case where an Officer was given promotion despite adverse entries made in the confidential records, those are in favour of the officer. It has also been held that even uncommunicated remarks could also be looked into while scrutinizing the service records to find out whether an officer is liable to be compulsorily retired under Rule 42 of the Rules of 1976. The scope of judicial review is confined to following four aspects:-
(I) Whether it is based on no material ; (ii) Whether it is arbitrary; (iii) Whether it is without application of mind; and (iv) Whether there is no evidence in support of the case.
8. The scope of judicial review as held in para 44 of the judgment in the case of Madhya Pradesh State Cooperative Dairy Federation Limited (supra) is although restricted one, it has been held that its jurisdiction is not only limited in the cases where the administrative orders are perverse or arbitrary but also in the cases where a statutory authority has failed to perform its statutory duty in accordance with law. An order which is passed for unauthorized purpose would attract the principles of malice in law.
9. Having thus examined the legal position and scope of judicial review, 9 limitation of judicial review and the object behind the scheme of compulsory retirement of the government being that the servant has became deadwood and outlived his utility, I shall now proceed to examine the material on record.
10. The respondents have placed on record the minutes of meeting dated 21-11-1997 of the Screening Committee which comprised of the Principal Secretary, Departmental of Tribal Development, Commissioner, Tribal Development and Additional Secretary, General Administration Department. The criteria adopted by the Committee was as under :-
Þ1- bZekunkjh rFkk lR;fu"Bk lansgtud gksuk] ¼bl gsrq lacaf/kr 'kkldh; lsod dk laiw.kZ vfHkys[k ns[k tkdj vuq'kalk dh tk,½A 2- 'kkjhfjd {kerk dh dehA 3- [;kfr ,oa dk;Z{kerk dk ewY;kadu lacaf/kr 'kkldh; lsod ds lsokdky ds laiw.kZ vfHkys[kksa ds vk/kkj ij fd;k tk,A ;g vko';d ugha gS fd izR;sd izfrdwy vfHk;qfDr vFkok ,slh vfHk;qfDr ftls izfrdwy vfHk;qfDr dh laKk nh tk ldrh gS] 'kkldh; lsod dks lalwfpr dh xbZ gksA ;fn fdlh ;qfDr ds izdj.k esa mlds fo:} Hkys gh ,slk rF; u gks] ftlds vk/kkj ij lsok fuo`Rr fd;k tk lds fdUrq ml vf/kdkjh dh ;fn ,slh [;kfr gks ftlds dkj.k 'kkldh; lsodksa esa vuq'kklughurk O;kIr gks vFkok yksd lsod dh n{krk izHkkfor gksrh gks] rks Hkh tufgr esa vfuok;Z :i ls lsok fuo`r fd, tkus ij fopkj fd;k tk,A ß
11. A perusal of the criteria shows it is an accord with the provisions of the compulsory retirement as conceived under Rule 42 of the Rules of 1976 and in substance based on judicial principles evolved by the Supreme Court in the case of Baikunth Nath Das (supra) and subsequent decisions referred to in the case of Madhya Pradesh State Cooperative Dairy Federation Limited (supra).
12. The minutes of the Committee would further show that records of number of officers were scrutinized and it is not a case where the case of the petitioner were taken up for consideration on solitary basis. This point is required to be noted because the petitioner has made an allegation that the compulsory retirement was only a cloak with an ulterior motive to punish the petitioner 10 indirectly in the departmental enquiry initiated vide charge sheet dated 13-11-1996, wherein reply was submitted by him and penalty was proposed, but no orders were passed. In so far as case of the petitioner is concerned, it was considered in the Screening Committee, as below:-
ÞJh ,l-vkj- mik/;k; us viuk lsok dky fu-Js-fyfid ls izkjaHk fd;kA o"kZ 1966 esa ,d osruo`f} jksdh x;hA Jh mik/;k; dh 6 o"kksZ 79] 80] 81] 87] 90] 91 dks NksM+dj lHkh xksiuh; pfj=kokfy;k vkSlru vkSlr ls de Js.kh dh gSA o"kZ 75] 77] 78] 83] 84] 86] 88] 89 92] 93 esa foijhr vH;qfDr;ka vafdr gSA vr% Jh mik/;k; dh [;kfr ,oa dk;Z{kerk dks ns[krs gq, lfefr mUgsa vfuok;Z lsokfuo`Rr djus ds ;ksX; ikrh gSAß
13. Thus, what is seen that the service record of the petitioner were scrutinized. It not only referred to imposition of penalty of withholding of one increment in the year 1966, but also records that except Annual Confidential Reports of the year 1979, 1980, 1981, 1987, 1990, 1991, all other confidential reports are either "Average" or "Below Average". It has to be seen that this reference was in respect of the earlier period up to year 1991. That means in respect of the period of almost 20 years of service, at least 6 Annual Confidential Reports were more than "Average". However, how many of them were "Average" and how many of them were "Below Average" has not been noted. This is important because it will have bearing on the ultimate decision to be taken as to whether the employee has become deadwood or not. The other part of consideration is that the remarks for the year 1975, 1977, 1978, 1983, 1984, 1986, 1988, 1989, 1992 and 1993 are adverse in nature. This finding, however, cannot be said to be entirely correct as per record. The copies of Annual Confidential Reports of the petitioner have been placed on record by the respondent. The Annual Confidential Reports for the period ending 31-03-1993 is "Average". However, in the minutes, it has been taken as "Adverse". As far as Annual Confidential Reports for the period ending 31-03-1992 is concerned, it has been credited as "Average", but has been wrongly recorded as an adverse 11 entry. The Annual Confidential Reports for the period ending 31-03-1991 has been recorded as "Below Average". The Annual Confidential Reports for the period ending 31-03-1990 has been recorded as "Kha". Thus, for the period from years 1990 to 1993 have been treated as adverse, there is no mention of the fact that Annual Confidential Reports of year 1990 and 1991 are "Good". This assumes importance because in view of the legal position, adumbrated as above, records of recent past are more relevant as compared to old records while deciding whether an employee has become deadwood or not.
As far as Annual Confidential Reports for the period ending 31-03-1989 is concerned, though the Reporting authority has made an adverse comment, the Reviewing Authority overruled the same by a specific note that the reporting authority is biased against the petitioner and he has improved grading as 'Kha' ("Good"). In the records of minutes of Screening Committee, the Annual Confidential Reports for the period ending 31-03-1989 has also been treated as adverse.
14. It is also relevant to note that the petitioner was granted promotion in the year 1994. According to the aforesaid decision of the Supreme Court, where an Officer is granted promotion, that is a fact in his favour. One can presume that while considering case of promotion in the year 1994, service records of the petitioner for the last five years have been found good and deserving promotion which led to grant of promotion to the post of Block Education Officer, a Class II Gazetted Post in the Higher Grade of Service. This fact does not find mention in the Screening Committee report.
There is flip side of the coin also. Though the Screening Committee has not considered, the records of the case would show that after grant of promotion to the petitioner in the year 1994, departmental enquiry was initiated against him 12 by issuance of charge sheet dated 13-11-1996 which remained inconclusive. Vide memo dated 20-05-1997, a show cause notice was given to the petitioner proposing penalty of withholding of five increments without cumulative effect on the basis of enquiry report. Not only this, the Annual Confidential Reports for the period ending 31-03-1993 has been graded as "Average". The Annual Confidential Reports for the period ending 31-03-1995 has been recorded as "Average" with the comments that after the petitioner took over the charge at Laillunga, activities were not quite normal and the petitioner remained controversial and he is not showing proper interest in implementation of Literacy Mission.
15. From the aforesaid scrutiny of the records, the inevitable conclusion is that while screening the records of the petitioner, the Committee has not examined the records in its entirety, correctly and in its proper perspective. No effort has been made to give more importance to the relevant past. The Annual Confidential Reports of the petitioner, after grant of promotion, have not been taken into consideration till the date of consideration of case in the year 1997- 1998. The fact that the petitioner was granted promotion in the year 1994 has also not been taken into consideration. More weightage has been given to performance in the remote past rather than paying more attention to the records of the recent past. Therefore, applying the test of reasonableness and arbitrariness, I am of the considered opinion that the decision of the respondent authority is arbitrary, unreasonable and unsustainable in the eye of law.
16. In the result, the impugned order dated 16-01-1998 cannot be sustained in the eye of law and is therefore, set aside. What would have been the decision had the entire service been taken into consideration in its proper perspective, as observed above, is left to be considered by the competent authority in the fresh 13 exercise required to be undertaken, in the light of observations made by this Court and the principles laid down by the Supreme Court. Considering that the petitioner was compulsorily retired on 16-01-1998 and almost 19 years have lapsed by now, the entire exercise shall be completed within a period of four months by the concerned respondent. If the decision of the respondents stands, no further order is required to be passed. However, if the decision of the respondent authority is in favour of the petitioner and needs modification of order of compulsory retirement, all the consequential benefits are required to be paid to the petitioner, which he would have received, if he would have continued in service, after adjusting the payments, whatever were already made to the petitioner in the year 1998.
17. This petition is accordingly allowed in the manner and to the extent held above. No order as to costs.
SD/-
(Manindra Mohan Shrivastava) Judge Tumane