Shantimal Bhandari vs The State of M.P. and Others

Sujoy Paul, J.—By invoking jurisdiction of this Court under Article, 226 of the Constitution, the petitioner has prayed for setting aside the order dated 24.06.2009 with further direction to reinstate him with all consequential benefits. Facts, as canvassed by the petitioner are that he was appointed as clerk w.e.f. 07.05.1972, thereafter, he was promoted as Cashier in the year 1989. The petitioner was further promoted as Accountant in the year 1995. Thereafter in May, 2003, he was promoted as Branch Manager. In July, 2006, the petitioner was promoted as Assistant Manager. The promotion orders are filed cumulatively as Annexure P/2. The promotion order dated 08.07.2006 was cancelled, against which the petitioner filed WP No. 107/2008. This Court set aside the cancellation of promotion order by order dated 09.05.2008 (Annexure P/4). It is admitted between the parties that against said order of the Writ Court, writ appeal is pending before Division Bench.

The petitioner is aggrieved by impugned order Annexure P/1. By this order the petitioner is compulsorily retired. Shri D.P. Singh, learned counsel for the petitioner submits that in view of satisfactory service of the petitioner, in which no adverse CR is communicated to him and he was given various promotions, order of compulsory retirement is bad in law and is an arbitrary exercise of power. He submits that careful scrutiny of the impugned order would show that it is punitive in nature and not based on entire service record of the petitioner.

The respondents have not chosen to file any reply in this matter. On 03.12.2012 learned counsel for the respondents stated that he does not want to file any reply in the matter. However, record/photocopy in the shape of file is produced for the perusal of this Court. Shri Vishal Mishra, learned counsel for the employer heavily relied on Triloki Nath Pandey and Others Vs. The Madhya Pradesh Co-operative Dairy Federation Ltd. and Others, . In the said case the petition was not entertained and petitioner was relegated to avail alternative remedy. On the strength of this order, it is contended that this petition be not entertained.

I have heard learned counsel for the parties and perused the record.

I deem it proper to first deal with the objection of other side about availability of alternative remedy. In Triloki Nath Pandey (supra) petition was filed at the end of year 2005 which was decided in 2006. This petition is pending before this Court for about four years. The respondents have not chosen to file reply in this matter. This is settled in law that despite availability of alternative remedy, the petition can be entertained. The question of entertaining a writ petition, despite availability of alternative remedy, is matter of policy/discretion and is not of a compulsion. In given facts and situation, Court may relegate the litigant to avail alternative remedy, whereas in different factual scenario may also entertained it.

In the present case, facts are totally different. Merely because there is an alternative remedy, I am not inclined to relegate the petitioner to avail that remedy after four years. The Apex Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, opined that despite availability of alternative remedy, petition can be entertained. One such ingredient for entertaining the petition is violation of principle of natural justice. Hence, the judgment in Triloki Nath (supra) is of no assistance to the petitioner.

Coming to the merits of the case, the contention of the petitioner is that he was appointed in the year 1972 and thereafter, he was given various promotions. Only promotion dated 08.07.2006 is presently subject matter of writ appeal. Other promotions, given prior in time, have attained finality. In view of the record and various promotions, it is contended that by no stretch of imagination, the petitioner can be termed as ''dead wood''.

The case of the petitioner is that petitioner is compulsorily retired as a measure of punishment by casting stigma. Whereas, the stand of the respondents is that on overall consideration of the record petitioner is held to be ''dead wood''. I deem it proper to reproduced the relevant portion from the impugned order dated 24.06.2009 as under:-

(Emphasize supplied)

A careful reading of the aforesaid portion makes it clear that respondents have not seen the entire service record of the petitioner to determine whether he is ''dead wood''. They have seen the last three years record with the intention to examine whether during those three years the petitioner remained absent. In other words, the service record was seen with a view to dig out the shortcomings and misconduct of the petitioner. Overall service record of the petitioner was not adjudged, which is clear from the impugned order. It is not canvassed by the respondents that during the period for which service record is seen the petitioner''s ACR is graded as "D" or his services are held to be unsatisfactory. A microscopic reading of the aforesaid portion further shows that respondents have picked up certain incidents and gave categorical finding that the petitioner''s conduct amounts to disobedience/indiscipline. Thus, question is whether on the basis of these reasons the petitioner can be compulsorily retired. As per Rule 72 of (for short, "1982 Rules"), which reads as under:-

This is not in dispute between the parties that the petitioner is compulsorily retired by invoking Rule 72(1) of the service regulations. The respondents have not issued any show cause notice/charge sheet nor conducted any disciplinary proceedings. There action is based on clause 72(1) of the by-laws. The pivotal question is whether by invoking clause 72(1) the petitioner can be retired compulsorily on the basis of aforesaid reasons.

Pausing here for a moment, it is apt to rely on the judgment on the Supreme Court in State of Gujarat Vs. Umedbhai M. Patel, . The Apex Court considered the law relating to compulsory retirement and crystallized it into definite principles. Those principles are broadly summarized as under:-

(i) Whenever the services of a public servant are not 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 favour of the officer.

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

(Emphasize supplied)

A bare perusal of the law laid down by the Apex Court makes it clear that order of compulsory retirement cannot be passed as short cut to avoid departmental enquiry and when said course is more desirable. In the facts and circumstances of this case, it is clear that the respondents have passed the impugned order on the basis of certain allegations, which amounts to misconduct. Thus, the respondents have made an effort to short circuit the disciplinary proceedings by compulsorily retiring the petitioner. Chapter 11 Rule 56 of 1982 Rules defines the misconduct. Clause 7 reads as under:-

Averments of the impugned order, reproduced herein above, shows that the petitioner is compulsorily retired for allegations which, if proved, amounts to misconduct. As per said rules, unauthorized absence is also a misconduct. In view of aforesaid, it is clear that the impugned order is passed in lieu of disciplinary proceedings which is impermissible. Apart from this, the impugned order is passed thereby casting stigma on the petitioner. The petitioner is compulsorily retired due to incidents and allegations which amounts to misconduct. This has been done without providing any opportunity to him. Thus, principles of natural justice are violated. For this reason also, I have not relegated the petitioner to prefer appeal. Thus, I have no doubt that the impugned order is passed to avoid disciplinary proceedings which is impermissible in view of the judgment in Umed Bhai (supra). Resultantly, the impugned order cannot be permitted to stand, the same is set aside. Petition is allowed. The petitioner be reinstated within 30 with all consequential benefits. Liberty is reserved to the respondent to take action against the petitioner in accordance with law.