Calcutta High Court (Appellete Side)
Saroj Kumar Dutta vs Union Of India And Others on 28 February, 2014
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
W.P. No.8820 (W) of 2010
Saroj Kumar Dutta
versus
Union of India and Others
For Petitioner : Mr. K. B. S. Mahapatra
For Respondent : Mrs. Gopa Roy
Judgment On : 28th February, 2014.
Tapabrata Chakraborty, J.
This writ application had been preferred challenging a memorandum dated 16th July, 2009 issued by the respondent no.6 and the reports of the Review Committee and the Representation Committee and the memorandum dated 23rd March, 2010 through which it was inter alia communicated to the petitioner that in accordance with the provisions contained in Fundamental Rule (hereinafter referred as the FR) 56 (j), his case was reviewed by the Review Committee and he was not found fit for retention in service and accordingly he was prematurely retired from service with effect from 01.08.2009 (FN) by the appropriate authority and that the petitioner's representation dated 10th December, 2009 against his premature retirement order dated 16th July, 2009 was considered by the Representation Committee and the said Committee came to a conclusion that there is no merit in the representation submitted by the petitioner.
Mr. Mahapatra, learned advocate appearing for the petitioner had ,inter alia,contended that the petitioner was appointed as Constable on 15th March, 1982 and that thereafter he was promoted to the post of Assistant Sub-Inspector on 30th June, 1987 and to the post of Sub-Inspector on 30th March 1995 and to the post of Inspector with effect from 10th July, 2008 and that from such service records of the petitioner it is explicit that the petitioner's integrity was never doubtful and that his performance and discharge of service did not suffer from any ineffectiveness. Mr. Mahapatra had further argued that the memorandum dated 16th July, 2009 issued by the respondent no.6 was absolutely without jurisdiction inasmuch as the said respondent no.6 was not the Appointing Authority of the petitioner and that as such the power under FR 56 (j) could not have been exercised by the said respondent no.6. Mr. Mahapatra had further contended that under FR 56 (j) there has to be a formation of opinion and that such formation of opinion must be on the basis of the overall service record of the petitioner and that the respondents cannot pick out any particular instance from the entire service record of the petitioner for the purpose of formation of such opinion under FR 56 (j).
The respondents have entered appearance and have filed an affidavit-in- opposition controverting the allegations made in the writ application and stating inter alia that the petitioner's representation / appeal against the order of premature retirement adopted by the Review Committee was considered by the Representation Committee and was rejected and that there was no infirmity in the orders passed by the Review Committee and Representation Committee. The respondents, however, in paragraph 5 of the affidavit-in-opposition had admitted the fact that the petitioner did avail three promotions. Mrs. Roy further submitted that the petitioner was ordered for premature retirement along with three months' pay and allowances and that having received the said amount the petitioner cannot challenge the order of premature retirement.
In reply to such contention of the respondents as regards receipt of the three months' pay and allowances, Mr. Mahapatra submits that the said payment was directly credited to the petitioner's Bank Account and that as such there was no scope to refuse acceptance of such payment.
As the orders passed by the Review Committee and the Representation Committee were not on record, this Court directed Mrs. Gopa Roy, learned advocate appearing for the respondents to produce the same before this Court and pursuant to such directive, the said orders were placed before this Court and copies were handed over to the learned advocate appearing for the writ petitioner.
Upon going through the said orders passed by the Review Committee and the Representation Committee, Mr. Mahapatra, learned advocate for the petitioner further argued that the order of the Review Committee suffers from total non-application of mind inasmuch as the said Committee had not considered that on the rudiments of sincere service rendered by the petitioner he had availed three promotional orders and that only on the basis of one major punishment and four minor punishments the petitioner could not have been denied retention in service beyond 50 years Mr. Mahapatra further drew the attention of this Court to the criteria, procedure and guideline towards review of cases of government employees covered under the provisions of FR 56 (j) and submitted that the criteria to be followed by the Committees in making their recommendations would be as follows :-
(a) Government employees whose integrity is doubtful, will be retired.
(b) Government employees, who are found to be ineffective will also be retired.
The basic consideration in identifying such employee should be the fitness/competence of the employee to continue in the post which he is holding.
(c) While the entire service record of an Officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding 5 years, or where he has been promoted to a higher post during that 5 years' period, his service in the highest post, has been found satisfactory.
(d) No employee should ordinarily be retired on ground of ineffectiveness, if, in any event, he would be retiring on superannuation within a period of one year from the date of consideration of his case.
According to Mr. Mahapatra the petitioner's integrity was never doubtful and that the petitioner was not ineffective and that the entire service record of the petitioner was not considered at the time of review and that during the preceding period of five years, prior to attainment of 50 years of age, the petitioner's service was found to be suitable and effective and accordingly he was given promotion to the post of Inspector on 10th July, 2008 and that as such the Review Committee had acted illegally in denying retention of service to the petitioner beyond 50 years.
Mr. Mahapatra had also assailed the order of the Representation Committee and had submitted that the said order was a cryptic one and that even after admitting that the petitioner had earned 14 good reports and 5 very good reports, the said Committee did not consider the same and that as such the said order of the Representation Committee is a biased and arbitrary one and that the same is liable to be quashed and set aside.
Mr. Mahapatra in support of his argument had relied upon the following judgments :-
1. Uttar Pradesh Cooperative Sugar Factories Federation Limited Versus P. P. Gautam and Others reported in (2008) 17 SCC 365.
2. Swaran Singh Chand Versus Punjab State Electricity Board and Others reported in 2009 (8) SLR 488.
3. Madhya Pradesh State Cooperative Dairy Federation Limited and Another Versus Rajnesh Kumar Jamindar and Others reported in (2009) 15 SCC 221.
4. Unreported Judgment delivered in the case of Shri Balwinder Singh Versus Union of India & Ors.
In the case of Uttar Pradesh Cooperative Sugar Factories Federation Limited Versus P. P. Gautam and Others, the Hon'ble Supreme Court was pleased to observe that even in the absence of guideline towards premature retirement, the authorities cannot enjoy any unbridled power.
In the case of Swaran Singh Chand Versus Punjab State Electricity Board and Others, the Hon'ble Supreme Court had inter alia observed that the order of compulsory retirement can be passed when the officer concerned is found to be a dead wood and that for consideration of the said issue due regard should be given to the entire service record of the officer and that the order of compulsory retirement should not be imposed as a punitive measure.
In the case of Madhya Pradesh State Cooperative Dairy Federation Limited and Another Versus Rajnesh Kumar Jamindar and Others, the Hon'ble Supreme Court had inter alia observed that an order of compulsory retirement can be subject to judicial review when such order is based on no material and when such order is arbitrary and when such order is without application of mind and when there is no evidence in support of the case.
In the case of Shri Balwinder Singh Versus Union of India & Ors. (supra), the Hon'ble Court had reiterated the principles laid down by the Hon'ble Supreme Court in the judgments referred to hereinabove.
I have heard the learned advocates appearing for the parties and considered the materials on record. The perusal of the order passed by the Review Committee reveals that the petitioner's retention in service was not recommended by observing that "not fit for retention in the public interest on grounds of ineffectiveness and insufficient service records." It is explicit from the said report that the authorities had not considered the entire service record of the petitioner inasmuch as it is an admitted fact that in the preceding five years from the date of premature retirement, i.e., 1st August, 2009, the petitioner was promoted to the post of Inspector on 10th July, 2008 upon arriving at a finding to the effect that the petitioner's service was satisfactory. The Review Committee, however, took into consideration a major punishment suffered by the petitioner almost eight years prior to 1st August, 2009 and 4 minor punishments out of which 3 minor punishments were of the year 2001 and one minor punishment of the year 1995. In my opinion, the Review Committee having not considered the entire service records of the petitioner could not have arrived at a finding of ineffectiveness and that such finding is absolutely unfounded and arbitrary. The guidelines pertaining to FR 56 (j) had not at all been considered by the Review Committee and that as such the denial of recommendation for retention of the petitioner, is absolutely unsustainable in law. Furthermore, the Review Committee had acted in a mechanical manner and had rejected the petitioner's claim by only incorporating the words "ineffectiveness and insufficient service records" in the remarks column. Furthermore, there is no allegation to the effect that the petitioner's integrity is doubtful.
The last punishment suffered by the petitioner was more than eight years ago from 1st August, 2009 and subsequent thereto he was promoted to the post of Inspector in the year 2008 and in the backdrop of such factual scenario and the infirmities in the decision making process, the Review Committee report dated 29th June, 2009 is unsustainable in law and accordingly the same is set aside and quashed.
A perusal of the undated report of the Representation Committee submitted in response to the representation made by the petitioner on 10th December, 2009, reveals no independent application of mind and that the same had been mechanically issued without considering the specific grounds of challenge as incorporated in the petitioner's representation dated 10th December, 2009. The said report is nothing but a reiteration of the order passed by the Review Committee and in the said report there had also been no consideration of the specific contention of the petitioner that he was promoted in the year 2008 and the Review Committee without taking into consideration such fact had denied recommendation for retention on the basis of a major penalty imposed upon the petitioner almost eight years prior to 1st August, 2009. The order of the Representation Committee also does not reveal any consideration of the contention of the petitioner to the effect that the Review Committee had painstakingly extracted all that is negative in the service record of the petitioner.
The observation of the Representation Committee to the effect that "government cannot retain the persons with doubtful integrity and proven record of indiscipline" is absolutely irrelevant inasmuch as there had been no allegation of doubtful integrity against the petitioner. The incorporation of such observation reveals that the said Committee had sought to put up a completely distorted picture of the profile of the petitioner and such action is absolutely unfair and arbitrary and that as such the impugned report of the Representation Committee is unsustainable in law and accordingly the same is set aside and quashed.
The report of the Review Committee dated 29th June, 2009 and the report of the Representation Committee having been set aside, the communicative memorandum dated 23rd March, 2013 issued by the Assistant Inspector General and the memorandum dated 16th July, 2009 issued by the Deputy Inspector General are also set aside and quashed.
Accordingly, the writ application is allowed and the Review Committee report 29th June, 2009, the Representation Committee Report, the Memorandum dated 23rd March, 2013 and the order of premature retirement dated 16th July, 2009 are all set aside and quashed and the respondents are directed to grant all consequential benefits to the petitioner, including continuity in service, within a period of six weeks from the date of communication of this order.
In the facts of the present case, there shall be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.)