Allahabad High Court
Shri Narain Saxena vs Principal Secretary (Tax And ... on 18 August, 2005
Equivalent citations: 2005(4)ESC2431
Bench: B.S. Chauhan, Shishir Kumar
JUDGMENT
1. By means of tine present, writ petition, the petitioner has prayed for quashing the order dated 30.3.2002 (Annexure 8), passed by respondent No. 2, by which petitioner has been compulsorily retired. The petitioner was initially appointed on 1.3.1967 as Assistant in U.P. Trade Tax Department. Later on, he stood promoted as Senior Assistant and finally as Trade Tax Officer (Class II) by order dated 12.5.2000.
2. It has been submitted that while working as Trade Tax Officer at Etah, the petitioner came to know that there were certain irregularities in the registration of shops and the survey reports were prepared casually under pressure of the shop-keepers. In this connection, the petitioner did not grant any registration to M/s. Kumar Machinery Stores without conducting survey of the shop and without looking into the record. After survey, petitioner did not find anything, and as such, he did not record anything in the survey diary. It appears that under the pressure of the aforesaid Firm, complaints were made against the petitioner, and the petitioner was suspended on 14.5.2001. Writ Petition bearing No. 25173 of 2001 was filed and the order of suspension was kept in abeyance by this Court vide its order dated 30.7.2001. The charge-sheet was served upon the petitioner, to which he submitted a reply. The inquiry against the petitioner was pending, In the meantime an order dated 3.4.2002 has been passed retiring the petitioner from service compulsorily.
3. Shri K. Ajit, learned Counsel appearing for the petitioner has submitted that the Screening Committee cannot be a substitute of the appointing authority, and there is nothing on record to show that after considering the record of the Screening Committee, the appointing authority while passing the impugned order applied his mind. The order has been passed in a mechanical manner, therefore, it stands vitiated. The entire service record of the petitioner has not been examined. Screening Committee picked up only one adverse entry for one year, i.e. 2001 and made the recommendation for retiring the petitioner compulsorily. The petitioner has unblemished record throughout and the adverse entry made in 1990- 91 against the petitioner stood washed off as he had subsequently been promoted in 2000. The petition, therefore, deserves to be allowed and the impugned order is liable to be quashed.
4. On the other hand, the learned Standing Counsel has submitted that the order impugned was passed after considering the entire service record as the disciplinary authority himself had been the Chairman of the Screening Committee. The submission made by Shri K. Ajit that the disciplinary authority has not applied his mind becomes meaningless. The petitioner's service record was not unblemished and the order impugned does not suffer from any illegality. The petition is liable to be dismissed.
5. We have considered the rival submissions made by the learned Counsel for the parties and perused the record.
6. In Baifcuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., , the Hon'ble Supreme Court has laid down certain criteria for the Courts, on which it can interfere and they included mala fide, order if based on no evidence, order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e. if it is found to be a perverse order. The Hon'ble apex Court observed that the order of compulsory retirement is not. a punishment, it implies no stigma nor any suggestion of misbehaviour; the order should be passed in public interest on subjective satisfaction of the authority and while reviewing the service record, the entire service record is to be considered. However, the record of the later years should be given more importance and even uncomrnunicated adverse entries may be taken into consideration. The apex Court held as under :
"(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."
7. Similar view has been reiterated in Posts and Telegraphs Board and Ors. v. C.S.N. Murthy, ; Sukhdeo v. Commissioner Amravati Division, Amravati and Anr., ; State of Orissa and Ors. v. Ram Chandra Das, ; and M.S. Bindra v. Union of India and Ors., .
8. In Raj at Baran Roy and Ors. v. State of West Bengal, and Ors., , the Hon'ble Supreme Court held that there is a very limited scope of judicial review in a case of compulsory retirement and it is permissible only on the grounds of non-application of mind and want of material particulars.
9. In State of Giijarat and Anr. v. Suryakant Chunilal Shah, (1999) 1 SCC 529, the Hon'ble Supreme Court held that while considering the case of an employee for compulsory retirement, the public interest is of paramount, importance. A dishonest, corrupt and dead-wood deserves to be dispensed with, how much efficient and honest an employee is, it Is to be assessed on the basis of material on record which may also be ascertained from confidential reports. However, there must be some tangible material against the employee warranting him retirement.
10. In State of U.P. arid, Anr. v. Bihari Lal, 1994 "{Supp) 3 SCC 593, the apex Court held that if the general reputation of an employee is riot good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is permissible only on limited grounds. The Court further held that "what is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service."
11. In L.K. Mishrav. Union of India and Ors., , the Hon'ble Supreme Court observed as under :
"Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms an opinion bond, fide that compulsory retirement is in public interest."
12. In Prabodh Sagar v. Punjab State Electricity Board and Ors., AIR 2000 SC 1684, the Supreme Court held that employee's unsatisfactory performance, coupled with the tendency to resort to litigation, most of which was unsuccessful, rendered him a liability to his" employer, and he was rightly retired in public interest. in the said case, allegation of mafa fide was also rejected for want of particular material.
13. Similar view has been reiterated in Ramesh Cliandra Acharya v. Registrar, High Court of Orissa. and Anr., , while dealing with a case of judicial officer.
14. In State of U.P. v. Vijay Kumar Jain, , the Hon'ble Supreme Court placed reliance upon its earlier judgments in Shyamlal v. State o/ Uttar Pradesh and Anr., , wherein it has been held that an order of compulsory retirement is neither a punishment nor any stigma attached to it, rather, further services of a person are dispensed with in public interest. The apex Court held that if an employee has been given the adverse entries regarding his Integrity at any stage of his service career, he loses the right of continuation in service, and compxilsory retirement, if given, should not be interfered with.
15. In Union of India v. J.N. Sinha and Anr., , the apex Court held that an employee compulsorily retired does not lose any right acquired by him before retirement, as the compulsory retirement is not intended for taking any personal action against the Government servant, and the order so passed can be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground can be available to the Government servant who is sought - to be compulsorily retired from service. However, it may be subject to the conditions provided under the statutory provisions. , '
16. |n Jugai Chandra Saikia v. State of Assam, and. Anr., , the apex Court held that where the screening committee is consisting of responsible officers of the State arid they have examined/ assessed the entire service record and form the opinion objectively as to whether any employee is fit to be retained in service or not. In absence of any allegation of mala fide, there is no scope of a judicial review against such an order. While deciding the said case, reliance had been placed upon a large number of judgments, particularly, upon judgments in S. Ramachandra Raju v. State of Orissa, ; and M. S. Bindra v. Union of India and Ors. (supra).
17. In Nawal Singh v. State of U.P. and Anr., (2O03) 8 SCC 11.7, a similar view has been reiterated, observing that formation of an opinion regarding compulsory retirement by the authority is in the nature of a subjective satisfaction. However, it should be based on assessment of the service record. In case of adverse entry regarding the officer is concerned, it should be entertained on the basis of the opinion of a higher officer who had an opportunity to watch the performance of the officer concerned and to form an opinion with regard to overall reputation enjoyed by him.
18. Thus, the law of the point can be summarised that the authority must consider and examine over-all 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.
19. In Krishana Kumar v. S.P. Saxsena and Ors., AIR 1973 SC 106S, the Hon'ble apex Court held that what is to be seen by the Court at the time of judicial review, as to whether the Appointing Authority has formed its opinion objectively and whether the order had been passed by the Competent Authority. In the instant case, recommendation of the Screening Committee had been accepted by the District Judge, therefore, the order has been passed by the District Judge and not by the Additional District Judge and for such a purpose, constitution of a Committee is permissible, as held by Hon'ble apex Court in High Court of Judicature for Rajasthan v. P.P. Singh and Anr., .
20. In view of the above, there is no bar for the Competent Authority to appoint a Screening Committee and consider its recommendations by application of his mind. This view stands fortified by the judgment relied upon by Shri K. Ajit in Kamta Singh v. State of U.P. and Anr., 1993 HVD. (Alld) Vol. 2, page 131, wherein it had been held that the Appointing Authority has to apply his mind independently on the recommendation made by the Screening Committee, failing which the order impugned would stand vitiated.
21. In the instant case, the entire record has been produced before us. It is evident from the same that there was a 4-Member Committee, constituted for the purpose, and the Appointing Authority, i.e., Trade Tax Commissioner, Uttar Pradesh, had been the Chairman of the Committee. We have gone through the proceedings of the Committee. The proceedings have been signed by the four Members, including the Appointing Authority. Therefore, the facts of this case are quite distinguishable from that of the case in Kamta Singh (supra). The submission made by Shri K. Ajit: that Appointing Authority did not apply his mind independently, lacks merit, and is hereby rejected.
22. Adverse entries made much earlier may lose the sting but do not stand washed off. In such a situation, such old adverse entry cannot be treated to be completely erased even if promotion has been granted to the employee subsequently. (Vide Audh Narain Srivastava v. State of U.P. and Ors., (1984) 3 SLR 499 (All); State of Punjab v. Gurdas Singh, ; and Badri Nath v. State of Tamil Nadu and Ors., .
23. Undoubtedly, one particular misconduct or adverse entry unless it is of doubtful integrity or involving moral turpitude cannot be the basis of passing the order of compulsory retirement. The entire service record is to be examined for this purpose. Inefficiency of an employee may weigh with the authority concerned in coming to the conclusion whether or not the employee should be compulsorily retired and in that case the scope of judicial review is very limited. If on the perusal of the service book of the employee and file of the Department, the Court comes to the conclusion that the order has been passed by the competent authority in strict adherence to the statutory requirement, the order cannot be held to be invalid. (Vide State of Rajasthan and Anr. v. Sripal Jain, ).
24. It is for the competent authority to examine as to whether the Government employee should be retained in service or not, and to be retained in service is not a fundamental right of the employee. However, a permanent employee has a right to hold the post till he reaches the age of superannuation subject to his remaining fit and efficient and other statutory provisions dealing with the subject. In such circumstances, efficiency may not be the only criteria; the authority has to consider circumstances other than the question of the efficiency also. Therefore, it is in the exclusive domain of the Competent Authority to take a decision after assessing the over all service record. [Kailash Chandra v. Union of India, ; R.L. Butail v. Union of India and Ors., ; Gurdial Singh Fujji v. State of Punjab and Ors., ].
25. Undoubtedly, in M/s. Bindra v. Union of India and Ors., , the Hon'ble Supreme Court has observed that a person does not become corrupt over night, and such an order should not be passed mechanically on such entry. The service record produced by the respondent authority made it clear that vide order dated 24th May, 1980 an adverse entry was recorded against the petitioner in a case of insubordination and misbehaviour; again in 1991, adverse entry was given to the petitioner which remained in tact. The petitioner had been given the punishment after inquiry and warning, withholding one annual increment, vide order dated 24th March, 2001. Integrity of the petitioner has been found doubtful by the Principal Secretary of the Department vide order dated 5th May, 2001 and serious observations were also made against him.
26. In view of the above, it is not a case where it can be held that the petitioner had a unblemished record or his service record was of such a nature that it did riot warrant compulsory retirement. Allegation of mala fide has not been made against anybody, nor anyone has been impleaded by name. It is not a case where the impugned order has been passed solely on the adverse entry dated 24.3.2001. Petitioner's service record cannot be said to be unblemished. We do not find any ground to interfere in the matter.
Petition is accordingly dismissed.