Vilas Tiwari vs State of U.P.and Another

S.H. A. Raza, J.—The petitioner, who at the relevant point of time was Additional Commissioner (Scheduled Caste and Scheduled Tribe) a post of Provincial Civil Services, (P.C.S.) cadre in which he was promoted from the lower cadre, had challenged the order dated 29th January, 1990 by means of which he has been compulsorily retired by the State Government in exercise of powers under Fundamental Rule 56(C). It has been challenged on the ground that the same was not in public interest and was arbitrary, penal and is an abuse of power as he was not a deadwood but has continuously shown improvement in his work, which is apparent from his service record. The state has defended its action in the counter affidavit and supplementary counter affidavit and as directed, has produced the record.

The petitioner started his career in 1957 as Naib Tahsildar from which post he was promoted as Tahsildar in 1962 and thereafter as Deputy Collector in September, 1971 (P.C.S.) to which approval was given by the Public Services Commission in 1987 against the vacancy of 1974, but according to the State, against the vacancy of 1975. He crossed his efficiency bar (E.B.) in P.C.S. ordinary grade in 1978. Thereafter the petitioner crossed the Efficiency Bar automatically due to various pay revisions. The petitioner has stated that but for one adverse entry in 1968, which was expunged, he has not earned any adverse entry as none was communicated to him. In respect of some matter of the year 1982, a charge sheet was issued to him and after submission of reply, enquiry was held and report was submitted but no decision on it was taken and even though he was awarded Rs. 1000/ as honorarium for his excellent work in 198687 when he was posted in Secretariat, yet suddenly he was retired at the age of 56 years by the impugned order.

In the rejoinder affidavit it has been stated that the petitioner''s character roll upto 198087 along with charge sheet and enquiry report dated 10.2.87 was considered by the Selection Committee of the Public Service Commission and he was approved and findings against him were not seriously considered. His approval was not kept in sealed cover, as generally done with respect to those officers against whom disciplinary proceedings are pending, in accordance with the Government Order, but he was approved in P.C.S. Ordinary grade against the vacancy of the year 1974.

In the counter affidavit it has been stated that a preliminary report was received from the Commissioner, Allahabad Division, Allahabad in respect of irregularities committed by the petitioner, who was posted as Special Land Acquisition Officer, Kanpur Dehat for the reason that he had selected an example of very high rate for acquiring land in a particular village. In the Departmental enquiry which was followed, the enquiry officer found the petitioner guilty of all the four charges against him. He was found guilty of gross negligence on account of which heavy financial loss could have been caused to the Government. It has further been averred that one single instance of gross negligence and serious irregularity committed by him for which he was chargesheeted was considered sufficient and justified to retire the petitioner compulsorily in public interest. (Emphasis supplied) The Screening Committee, which examined the character roll of few officers, opined to compulsorily retire the petitioner and one another .officer. It has been stated that the Selection Committee kept its decision regarding the petitioner also in sealed cover and he was not promoted in the vacancy of 1974, but of the subsequent year. The petitioner''s assertion that he has not earned any adverse entry has not been denied. Even from the record we did not find any adverse entry, but in the year 1984 he was rated as an average officer though prior and subsequent to it, he was rated as good officer.

From the facts stated above, it is clear that because of findings recorded by the Enquiry Officer in departmental enquiry, decision to retire the petitioner compulsorily was taken. This being an admitted fact in the counter affidavit, it is not necessary to call for the Secretariat files. There being no adverse entry in the service record, the order of compulsory retirement was in the nature of penalty though innocuously worded and the same has not been passed in public interest, but may tantamount to be removal from service, before attaining the age of superannuation within the meaning of Article 311 of the Constitution of India. Even if it be accepted that the Government instead of taking the drastic step of removal from service and thus depriving him of pensionary benefits has taken a lenient view and has only cut short his service period by two years by retiring him, yet the order of compulsory retirement will tantamount to be a punishment and in total disregard and contravention of the procedure prescribed under Article 311 of the Constitution.

In State of U.P. Versus Madan Mohan Nagar (AIR 1967 S.C .1260), the Hon''ble Supreme Court applied the principle applicable to a temporary government servant to the case of compulsory retirement. In S.R. Venkaiaraman vs. Union of India (1979) 2 SCC 491, the order of compulsory retirement was struck down as there was nothing on the record to justify and support the order. It was held by the Hon''ble Supreme Court that the order of compulsory retirement amounted to gross abuse of power to use the rule for a purpose unwarranted by it.

This Court in State of U.P. Vs. Purshottam Swarup Jauhari, 1976 (2) ALR 316. held that there appeared no reason why the principles laid down by the Hon''ble Supreme Court in respect of order of termination of service of temporary employees should not apply to the case of compulsory retirement. It was observed by Hon''ble K.N. Singh, (as his lordship was then) for the Bench :

�If an order of compulsory retirement which has been passed by way of punishment amounts to one of dismissal or removal from service, if it is permissible to hold that an order of compulsory retirement has been passed by way of punishment and if it is permissible for courts to draw the inference that an order of compulsory retirement has been passed by way of punishment from the fact that it casts stigma on the government servant or from the fact that it deprives him of an accrued benefit, then surely it must be permissible for the courts to see whether the order of compulsory retirement is founded or based on misconduct or inefficiency and has in fact been passed by way of punishment. Every circumstance, which can lead to the conclusion that the order has been passed by way of punishment, can be examined by the court. The court can, therefore, see whether the order is founded or based on misconduct. This it can only do by going behind the order.�

In the case of State of Punjab versus Sukhraj Bahadur, AIR 1968 SC 1089, wherein the question of termination of service of a temporary employee was under consideration, the Hon''ble Supreme Court laid down five principles. The fifth principle laid down by the Court was :

�5. If there be a fullscale departmental enquiry envisaged by Article 311, i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article.�

The principles laid down in State of Punjab vs. Sukhraj Bahadur (Supra) case will apply to the instant case as it was after charge sheet, explanation enquiry and enquiry report, the order of compulsory retirement was passed. No hearing was given to the petitioner and no punishment was awarded, but the order of compulsory retirement was passed.

Sri R.N. Trivedi, learned counsel for the opposite parties contended that the State Government was within its right to retire the petitioner under Fundamental Rule 56 and the retirement order was in public interest and even if there was something behind it, the retirement order cannot be said to be illegal. In support of his contentions learned counsel cited several cases. Learned counsel first cited the case reported in State of Madras vs. A. R. Srinivasan (AIR 1966 SC 1827). In the said case the Tribunal after disciplinary enquiry recommended compulsory retirement by way of punishment and the Government referred the matter to the Public Services Commission for its recommendation and the Public Services Commission agreed with the findings of the Tribunal added that the prosecution evidence as a whole left a strong suspicion of corrupt practice on the part of the officer. The State Government issued a notice and thereafter a show cause notice and it was only thereafter he was compulsorily retired. It was in these circumstances that it was held that even if the guilt was not established against public servant by proof as in a criminal case, the fact that the officer''s reputation was notoriously bad afforded a just ground for the Government to refuse to continue to be served by such an officer in any Department. The order of compulsory retirement, in these circumstances, was not held to be illegal or based merely on suspicion. This case is of no help in the instant case and the facts are quite distinguishable.

Then reference was made to the case reported in E. Venkateswnrarao Naidu vs. Union of India, AIR 1973 SC 698. In the said case a plea was taken that the compulsory retirement was not in public interest. This plea was repelled on the ground that the appellant''s services having been validly determined by a notice which was issued prior to the date when the amended rules came into force, it was not necessary for the authority to satisfy itself that it was in public interest to retire the appellant compulsorily. This case is also of no assistance so far as the instant case is concerned.

In Tara Singh versus State of Rajasthan and others (AIR 1975 SC 1487) it was held t

�When persons complete 25 years of service and the efficiency of such persons is impaired and yet, it is desirable not to bring any change in inefficiency or in competency, the Government passes orders of such compulsory retirement. The Government servant in such a case does not lose the benefit which a Government servant has already earned these orders of compulsory retirement are made in public interest. This is the safety valve of making such orders so that no arbitrariness or bad faith creeps in.�

It was further held :

�The order did not contain any stigma against the petitioner so as to attract the applicability of Article 311 (2).�

A perusal of the facts of the case make it Clear that it does not appear to be a case of compulsory retirement after enquiry.

In Stale of Haryaria versus Inder Prakaih Anand and others (AIR 1976 SC 1841) it was observed that compulsory retirement simpliciter does not amount to dismissal or removal or reduction in rank under Article 311 or under the Service Rules. It is in fact order of compulsory retirement in accordance with the terms and conditions of service. In the said case the Additional District and Sessions Judge''s reversion to his substantive post was recommended by the High Court. As far as the reversion was concerned, the State Government agreed, but asked the High Court to consider whether in view of his work he should be retained in service beyond the age of 55 years as it was in public interest to retire him. The High Court did not agree with the suggestion and the State Government did not agree with the recommendation of the High Court and decided to retire him from service. This case was followed in Chief Justice of Andhra Pradesh and another etc. Vs. L.V.A. Dikshitulu and others etc. (AIR 1979 SC 193). The facts of the above case are distinguishable and do not apply to the facts of the instant case and the circumstances in which the order of compulsory retirement was passed.

In Brij Mohan Singh Chopra vs. State of Punjab (AIR 1987 SC 948) it was held that object of compulsory retirement is to weed out inefficient and dishonest employees but the power to compulsorily retire is subject to Service Rules and Constitutional limitations. It was also observed that adverse entries of period prior to promotion cannot be taken into consideration while forming opinion to retire him compulsorily as such entries lose their significance after promotion. For forming opinion regarding compulsory retirement, record of five years is to be seen and the adverse remarks not communicated to the petitioner or against which representations are pending cannot be considered.

In Union of India and others versus Shaik Ali (AIR 1990 SC 450), a railway employee who had 30 years of service and was promoted from time to time and due to some oral altercations with his superior officer, was suspended, was ultimately compulsorily retired from service. It was held that the order was punitive in nature and was liable to be quashed being passed in flagrant violation of principles of natural justice.

The facts stated above indicate that in respect of some act committed by the petitioner in the year 1982, though subsequent to that year his work was appreciated and honorarium was also given to him, his compulsory retirement was recommended on the basis of the report of the enquiry officer in departmental enquiry. The order of compulsory retirement, in these circumstances, will be deemed to be an order in the nature of punishment without giving any opportunity of hearing to the petitioner. In case it was proposed to retire him compulsorily on the basis of enquiry report, compliance of Article 311 (2) of the Constitution and opportunity of hearing was to be given to him and the same not having been done, the order of compulsory retirement deserves to be quashed.

In view of what has been said above, the writ petition deserves to be allowed and is hereby allowed and the impugned order of compulsory retirement dated 29.1.1990, contained in Annexure No. 1 to the writ petition is hereby quashed. The petitioner will be allowed to continue in service. Consequences shall follow.

However, there shall be no order as to costs.