Allahabad High Court
Hanuman Das Kesri vs State Of U.P. Thru' Secretary, Nagar ... on 26 April, 2018
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- WRIT - A No. - 76407 of 2005 Petitioner :- Hanuman Das Kesri Respondent :- State Of U.P. Thru' Secretary, Nagar Vikas, U.P. And Others Counsel for Petitioner :- M.M. Sahai,Ashok Khare,Govind Saran,Siddharth Khare Counsel for Respondent :- C.S.C.,Amit Dubey,Q.H. Siddiqui,Vimlesh K.Rai Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri V.K. Rai, learned counsel for the respondents.
2. This writ petition has been filed praying for the following relief:
i) issue a writ, order or direction in the nature of certiorari calling for the records of the case and quashed the impugned order dated 01.09.2005 served upon the petitioner on 27.09.2005 contained as Annexure 7 to the writ petition.
ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner in continuous service and pay him all the consequential benefits accordingly.
Submissions
3. Learned counsel for the petitioner submits that there was no material to pass the impugned order dated 1.9.2005 for compulsory retirement of the petitioner. Even punishment order passed in breach of principles of natural justice ceased to exist subsequently. Therefore, the impugned order deserves to be quashed.
4. Learned counsel for the respondents submits that an order of compulsory retirement can be interfered by the High Court only when the High Court is satisfied that the order of compulsory retirement has been passed malafidely or it is based on no evidence or it is arbitrary in the sense that it is perverse. He further submits that the Managing Director, U.P. Jal Nigam vide its letter No. 729/Pra-(2-5-0384)/05 dated 7.7.2005 issued instructions to the concerned officers to constitute a Screening Committee for compulsory retirement of those employees whose work and conduct are not satisfactory. The Managing Director has also drawn attention to the order of the Chief Secretary, Government of U.P. dated 22.6.2005 and the order of the Joint Secretary, Nagar Vikas Anubhag-3, Government of U.P., Lucknow dated 29.6.2005. In compliance to the aforesaid order of the Managing Director, dated 7.7.2005, a Screening Committee was constituted under the Chairmanship of the Chief Engineer to examine the matter of compulsory retirement. Before the Screening Committee the letter dated 22.9.2004 of the Secretary (Administration) U.P. Jal Nigam, Lucknow and the letter of the Managing Director, dated 7.7.2005, the relevant Government orders, complaints and inquiry against the concerned employees and list of employees were placed. After considering the documents and the relevant records, the Screening Committee made recommendation for compulsory retirement of petitioner. As per recommendation of the Screening Committee the impugned order dated 1.9.2005 was passed whereby the petitioner was compulsorily retired from service. He submits that the High Court, in exercise of powers conferred under Article 226 of the Constitution of India, can not sit in appeal over the impugned order of compulsory retirement in view of the law laid down by Hon'ble Supreme Court in the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer Baripada and another 1992 (2) SCC 299 (Para 34).
Discussion and Findings
5. I have carefully considered the submissions of learned counsel for the parties.
6. It has been well settled by Hon'ble Supreme Court that an order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. The order has to be passed by the Government on the subjective satisfaction on forming the opinion to retire a Government Servant compulsory in public interest. The principle of natural justice has no place in the context of compulsory retirement. The order of compulsory retirement may be passed even on consideration of uncommunicated adverse remark. However, judicial scrutiny is not all together excluded. The High Court may interfere with the order of compulsory retirement, if it finds that it has been passed (a) mala fidly or (b) it is based on no evidence or (c) that it is arbitrary in the sense that it is perverse order.
7. The submission of learned counsel for the petitioner that the material on the basis of which the impugned order was passed became non existent, deserves consideration. From the record it appears that an inquiry was initiated against the petitioner. By order dated 23.11.2004, the Chief Engineer found charges nos. 2 and 3 to be proved against him and consequently his integrity for the year 1996-97 and 1997-98 were withheld and recovery of sum of Rs. 11,86,500/- was directed against him and adverse entry was also awarded. The aforesaid order was affirmed by the Managing Director vide order dated 11.7.2005. Against that order the petitioner filed Writ A No.59836 of 2005 which was allowed by order dated 31.7.2014 on the ground of breach of principles of natural justice and accordingly both the orders were quashed and the matter was remitted back for fresh inquiry. In compliance to the aforesaid order of this Court an inquiry was conducted in which merely charge no.2 was found partly proved. The charges of dereliction in duty, doubtful integrity, misconduct and acts against the interest of the department were not found proved. The competent authority passed an order dated 7.5.2015 by which he held the petitioner to be guilty to some extent on the ground that the petitioner has not made sufficient effort for payment of bills submitted to N.C.L. Singrauli due to which payment could not be recovered in time which effected adversely the progress of work and thus loss was caused to the department. Accordingly, recovery of 10% of the estimated economic loss i.e. Rs.3.39 lacs was directed to be made from the petitioner. No administrative punishment was awarded to the petitioner. Against this order the petitioner has filed an appeal before the Managing Director U.P. Jal Nigam, which is pending.
Law of Compulsory Retirement & Scope of Interference by Court
8. In the case of Baikuntha Nath Das and another (supra) Hon'ble Supreme Court referred to its various judgments and the relevant provisions and held that the following principles with respect to compulsory retirement emerge:
(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 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.
9. Hon'ble Supreme Court further held that interference with the order of compulsory retirement is permissible only on the grounds mentioned in (iii) above.
10. In the case of Baikuntha Nath Das and another (supra) Hon'ble Supreme Court held that the order of compulsory retirement 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 has to be passed on the subjective satisfaction of the Government.
11. In State Road Transport Corporation and others Vs. Babu Lal Jangir 2013 (10) SCC 551 (paras 23, 24 and 27) Hon'ble Supreme Court held as under:
"23. The principle of law which is clarified and stands crystallised after the judgment in Pyare Mohan Lal v. State of Jharkhand is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this 'washed off theory' will have no application when the case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration the earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant.
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 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 1978-1990 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 employee concerned has become a deadwood and it is in 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.
27. It hardly needs to be emphasized that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non application of mind, mala fide, perverse, or arbitrary or if there is non-compliance with statutory duty by the statutory authority. Power to retire compulsorily, the government servant in terms of service rule is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. (See Posts and Telegraphs Board v. L.S.N.Murthy.)"
(Emphasis supplied by me)
12. In Nand Kumar Verma Vs. State of Jharkhand 2013 (3) SCC 580 (paras 28, 30, 31, 32, 33, 34, 36 and 37) as under:
28. We now proceed to consider the second order passed by the High Court for recommending the case of the appellant to the State Government to accept and issue appropriate notification to compulsorily retire the appellant from judicial service. It is now well settled that the object of compulsory retirement from service is to weed out the dead wood in order to maintain a high standard of efficiency and honesty and to keep the judicial service unpolluted. Keeping this object in view, the contention of the appellant has to be appreciated on the basis of the settled law on the subject of compulsory retirement.
30. "28. In ... Madan Mohan Choudhary v. State of Bihar this Court was considering the order of compulsory retirement of the appellant, who was a member of the Superior Judicial Service in the State of Bihar. On a writ petition filed by the appellant in the High Court,challenging his order of compulsory retirement by the Full Court of the High Court, the High Court on the judicial side refused to interfere and dismissed the petition. The appellant came in appeal before this Court. This Court found that while on various earlier occasions remarks were given by the High Court but there were no entries in the character roll of the appellant for the years 1991-1992, 1992-1993 and 1993-1994. The entries for these years were recorded at one time simultaneously and the appellant was categorised as 'C' Grade officer. The date on which these entries were made was not indicated either in the original record or in the counter-affidavit filed by the respondent. These were communicated to the appellant on 29-11-1996 and were considered by the Full Court on 30-11-1996. It was clear that these entries were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the appellant from service as it had directed the office on 6-11-1996 to put up a note for compulsory retirement of the appellant. This Court held that it was a case where there was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service prematurely. This Court was of the opinion that the entries recorded 'at one go' for three years, namely, 1991-1992, 1992-1993 and 1993-1994 could hardly have been taken into consideration. The Court then referred to its earlier decision in High Court of Madras v. R. Rajiah where this Court said that the High Court in its administrative jurisdiction has the power to recommend compulsory retirement of the Member of the judicial service in accordance with the rules framed in that regard but it cannot act arbitrarily and there has to be material to come to a decision to compulsorily retire the officer. In that case it was also pointed out that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the officers may discharge their duties honestly and independently, unconcerned by the ill- conceived or motivated complaints made by unscrupulous lawyers and litigants."
31. We are conscious of the fact that there is very limited scope of judicial review of an order of premature retirement from service. As observed by this Court in Rajiah case that: (SCC pp. 221-22,para 21) "21. ... when the High Court takes the view that an order of compulsory retirement should be made against a member of the subordinate judicial service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant for the purpose of compulsory retirement."
32. We also add that when an order of compulsory retirement is challenged in a court of law, the Court has the right to examine whether some ground or material germane to the issue exists or not. Although, the court is not interested in the sufficiency of the material upon which the order of compulsory retirement rests.
33. This Court in High Court of Punjab & Haryana v. Ishwar Chand Jain, has discussed the purpose, importance and effect of the remarks made during inspection which ultimately become the part of the ACR of the judicial officer concerned. This Court has observed thus: (SCC pp. 597-98,para 32) "32. Since late this Court is watching the spectre of either judicial officers or the High Courts coming to this Court when there is an order prematurely retiring a judicial officer. Under Article 235 of the Constitution the High Court exercises complete control over subordinate courts which include District Courts. Inspection of the subordinate courts is one of the most important functions which the High Court performs for control over the subordinate courts. The object of such inspection is for the purpose of assessment of the work performed by the Subordinate Judge, his capability, integrity and competency. Since Judges are human beings and also prone to all the human failings inspection provides an opportunity for pointing out mistakes so that they are avoided in future and deficiencies, if any, in the working of the subordinate court, remedied. Inspection should act as a catalyst in inspiring Subordinate Judges to give the best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the courts while working under great discomfort and hardship. A satisfactory judicial system depends largely on the satisfactory functioning of courts at the grass-roots level. Remarks recorded by the Inspecting Judge are normally endorsed by the Full Court and become part of the annual confidential reports and are foundations on which the career of a judicial officer is made or marred. Inspection of a subordinate court is thus of vital importance. It has to be both effective and productive. It can be so only if it is well regulated and is workman like. Inspection of subordinate courts is not a one-day or an hour or a few minutes' affair. It has to go on all the year round by monitoring the work of the court by the Inspecting Judge. A casual inspection can hardly be beneficial to a judicial system. It does more harm than good."
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. We say so for the reason that the appellant has produced the copies of the ACRs 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.
36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.
37. In Swami Saran Saksena v. State of U.P. this Court has quashed the order of compulsory retirement of the appellant therein in the public interest, which was found to be in sharp contradiction with his recent service performance and record. This Court observed: (SCC p.14, para 3) "3. ... 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 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."
(Emphasis supplied by me) Conclusion
13. It is now well settled that the object of compulsory retirement from service is to weed out the dead wood in order to maintain a high standard of efficiency and honesty and to keep the Government service unpolluted. Keeping this object in view, the contention of the petitioner has to be appreciated on the basis of the settled law on the subject of compulsory retirement. The formation of opinion for compulsory retirement should be 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. 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 employee concerned has become a deadwood and it is in 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 retire compulsorily 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. When an order of compulsory retirement is challenged in a court of law, the Court has the right to examine whether some ground or material germane to the issue exists or not. Although, the court is not interested in the sufficiency of the material upon which the order of compulsory retirement rests. The Authority cannot act arbitrarily and there has to be material to come to a decision to retire compulsorily the officer. Interference is permissible only on the ground of non application of mind, mala fide, perverse, or arbitrary or if there is non-compliance with statutory duty by the statutory authority. Power to retire compulsorily, a government servant in terms of service rule is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest.
14. The facts and legal position as discussed above leaves no manner of doubt that merely on initiation of a single departmental proceedings against the petitioner, he was compulsorily retired by the impugned order. Subsequently in the disciplinary proceedings the grave charges of dereliction in duty, doubtful integrity, misconduct and acts against the interest of department, were not found proved. There is not even a whisper in the impugned order of compulsory retirement indicating prima facie any material to form the opinion for compulsory retirement of the petitioner in public interest. The impugned order is based on no evidence. There is no evidence to show that suddenly there was such deterioration in the quality of the petitioner's work that he deserved to be compulsorily retired. Hence the impugned order deserves to be quashed.
15. In view of the above discussion, the impugned order dated 1.9.2005 passed by the respondent no.3 can not be sustained and is, hereby, quashed. The matter is remitted back to the competent authority to pass an order afresh in the light of the law laid down by Hon'ble Supreme Court in the case of Baikuntha Nath Das and another (supra) and Nand Kumar Verma (supra) as aforequoted and the facts and evidences available on record including the inquiry report dated 26.11.2014 and the order dated 7.5.2015, passed by the Chief Engineer (A-3) U.P. Jal Nigam, Lucknow.
16. Writ petition is allowed to the extent indicated above.
Order Date :- 26.4.2018/vkg