Kanhiya Lal vs MCD and Others

Pradeep Nandrajog, J.—Petitioner challenges order dated 27.2.1976 under which petitioner was retired pre-maturely on attaining the age of 50 years, in exercise of power conferred by Rule 56 (J) of the fundamental rules. The order records that the Commissioner of the Municipal Corporation of Delhi was of the opinion that in public interest, petitioner ought to be retired from service on attaining the age of 50 years with immediate effect. Salary in lieu of 3 months'' notice period was paid to the petitioner.

Though various grounds have been urged in the writ petition, at the hearing Sh.G.N. Agarwal, counsel appearing for the petitioner challenged the order on three grounds that Sh.V.P. Saluja, the then Executive Engineer (Planning) had strained relations with the petitioner and he was responsible for adverse entries to be entered in the ACRs of the petitioner. Petitioner, who was communicated the adverse entries in his ACRs for the year 1971 made a representation. The adverse entry was expunged vide order dated 31.8.1973. It was further argued that at the behest of said Sh.V.P. Saluja, an adverse entry was entered in the ACR of the petitioner for the next year as well i.e. 1972. Petitioner filed a representation against the said adverse ACR but the re presentation was rejected on malafide grounds. Counsel contended that action was taken against the petitioner based on the said two ACRs and that in view of the fact that the only adverse material against the petitioner was the two adverse ACRs; one of which was expunged, it was not a bonafide exercise of power under Rule 56 (J). Second ground of challenge laid was that the Commissioner of the Corporation was acting under the instructions of Sh. Sanjay Gandhi, son of the then Prime Minister of this count y. Sh.B.R. Tamta, the then Commissioner of the Corporation would pass oral orders directing demolition to be carried out without issuance of notice to the parties concerned. Counsel contended that petitioner was directed on a number of occasions by Sh. .R. Tamta to demolish structure without any notice. Petitioner refused to do so and, Therefore, Sh.B.R. Tamta out of malice passed the impugned order. Third contention urged was that the petitioner who was appointed as an overseer which post was re-designated as Junior Engineer earned a promotion as an Assistant Engineer on 30.3.1970. Since the petitioner had earned the promotion on 30.3.1970, service record prior to the year 1970 could not be considered.

Counter affidavit has been filed by the MCD. Averments made in the counter affidavit have not been traversed by the petitioner, in that, there is no rejoinder to the counter affidavit filed by the MCD.

Justifying the decision to retire the petitioner under fundamental Rule 56(J), it is stated in the counter affidavit that the service profile of the petitioner justified the decision to retire the petitioner pre-maturely in public interest. The follow ing particulars of the service profile of the petitioner have been listed out:-

i. Petitioner was appointed as an overseer in the erstwhile Municipal Committee on 23.10.1952. With the creation of the Municipal Corporation of Delhi in the year 1957, services of the petitioner were taken over by the MCD. During his employment under the erstwhile committee, petitioner was fined Rs.10/- on 11.8.1954 for being negligent in his official duty. On 19.8.1954, a warning was issued to the petitioner.

ii. While in Municipal service, on 14.5.1958 petitioner was inflicted the penalty of stoppage of two increments with future effect.

iii. There were adverse entries in the ACR of the petitioner for the year 1959-60, 1962-63. The same were communicated to the petitioner.

iv. On 31.3.1964, penalty of stoppage of one increment with future effect was imposed upon the petitioner.

v. On 23.4.1968 warning was issued to the petitioner for negligence in his official duty.

vi. On 27.7.1972 warning was issued to the petitioner for being negligent.

vii. 3 departmental enquires No. 1/1526, No.1/171/75 and no.256/SAP/Vig/ 75 were pending.

viii. Adverse entry in the ACR pertaining to the year 1972 was recorded.

As per the counter affidavit, a review committee to screen the cases for pre-mature retirement was constituted. The committee constituted of Sh.V.K. Channa, Deputy Commissioner (C), Sh.H.V. Bijlani, Municipal Engineer and Sh.Nathu Lal, Director of Vigilance. The said screening committee considered the entire service record of the petitioner. It made a recommendation which was accepted by the Commissioner that petitioner be pre-maturely retired under F.R. 56 J.

In the counter affidavit, it is stated that the petitioner never earned promotion to the post of Assistant Engineer (Civil). He was merely entrusted current duty charge to the said post.

Reviewing the law pertaining to compulsory retirement, Supreme Court in its decision reported as State of Gujarat Vs. Umed Bhai M. Patel crystallized the principles of law applicable to compulsory retirement as under:-

''''The law could be broadly summarized thus:

(i) Whenever the services of a public servant are no longer useful to the general administration, he 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 weight 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 favor of the officer.

(viii)Compulsory retirement shall not be imposed as a punitive measure.''''

It is, thus, clear that entire service record can be considered while deciding on the issue of compulsory retirement.

In the decision of the Supreme Court reported as Union of India (UOI) and Others Vs. Dulal Dutt, it was held that what has to be seen is the overall career profile of the officer. It was further held that pendency of vigilance cases could also be taken into account by the authorities concerned while deciding on the issue of compulsory retirement. It was observed that merely because the said material constituted the subject matter of a charge-sheet, it did not mean that if it was relied upon by the authority taking the decision to compulsorily retire the employee, ipso facto, it would mean that the compulsory retirement was penal.

Applying the ratio of the judgment aforesaid it is to be noted that the service profile of the petitioner does not reflect a very healthy picture. Right from the year 1952 when he first joined service till his retirement in the year 1976 petitioner repeatedly was issued warnings or was visited with penalty orders. At the time when the decision was taken to compulsorily retire the petitioner, 3 departmental proceedings were pending or were under investigation. Allegations of malafide against Commissioner of the Corporation have not been substantiated at all in the petition. A vague assertion in the petition that ''''at one time the petitioner was even called by Sh.B.R. Tamta, the then Commissioner of the Corporation at his residence'''' is bereft of any particulars. The assertion in the petition that Sh.B.R. Tamta gave verbal orders to the petitioner to demolish pacca structure without notice is again bereft of any particulars. Which buildings were directed to be targeted have not been disclosed. When the oral instructions were issued have not been disclosed. It is easy to allege malice but difficult to establish the same. To make up the deficiencies in the writ pleadings, petitioner filed an affidavit disclosing particulars of acts of Sh.B.R. Tamt to prove mala-fide. Petitioner has not imp leaded Sh.B.R. Tamta as a respondent. Pleadings of the supplementary affidavit can be denied or affirmed qua malice by Sh.B.R. Tamta. He, having not been made a party, said affidavit has to be ignored.

From the service profile of the petitioner as per the counter affidavit it cannot be stated that no material existed for the authorities to arrive at the conclusion that the petitioner should be compulsorily retired. It cannot also be said that the material does not justify the decision which has been taken against the petitioner.

I find no merit in the petition. The rule is discharged. The writ petition is dismissed. No costs.