Virendra Prasad vs State of U.P. and Others

S.C. Verma, J.—The Petitioner has challenged the order of compulsory retirement dated 16.12.1993 passed by the District Judge, Ghazipur on the ground that the same is arbitrary and has been passed on consideration of adverse entries which were neither communicated nor any opportunity was given to submit the explanation as also the impugned order has been passed by way of punishment without affording any opportunity.

The Petitioner was initially appointed as Apprentice in the civil court and was working in the Copying Department.The Petitioner has alleged that while working on the promoted post of Assistant Record Keeper in the year 1993, he was promoted to the post of Munsarim by order dated 31.7.1993, by the District Judge, Ghazipur after adjudging his merit and suitability. The Respondents have considered the adverse entries prior to 1993 on the basis of which the impugned action has been taken whereas the adverse entries passed prior to July, 1993 were liable to be ignored as they stood condoned and washed out in view of the promotion given to the Petitioner. The Petitioner has also alleged that after 1993, he did not receive any adverse entry and there was no adverse entry or adverse remark on account of which the impugned action could be taken. The Petitioner while he was posted as Amin in civil court, Saidupur, Ghazipur, he was charged for having changed his report. A preliminary enquiry was held by the IInd Addl. District Judge, Ghazipur who submitted report in his favour. The complainant requested for re-enquiry into the matter and the District Judge ordered for re-enquiry through Sri U. C. Tiwari, IInd Addl. District Judge, Ghazipur. The report was submitted on 30.6.1992 against the Petitioner for having committed negligence in performance of duties. A full-fledged enquiry thereafter was directed to be made and Sri Rajdeo, Special Additional District and Sessions Judge, was appointed as Enquiring Officer. The Petitioner submitted his reply dated 10.11.1989 against the charges levelled against him. Shri Rajdeo, the Enquiring Officer by letter dated 5.12.1992 requested for transfer of the enquiry to some other Officer as he had submitted his preliminary enquiry report. The matter was then transferred to IInd Addl. District and Sessions Judge and the enquiry is still pending. On the last date of the enquiry proceedings which was held on 3.1.1994, the next date was fixed as 17.1.1994 and thereafter on the application of the Petitioner the enquiry was adjourned. In another case, on a complaint by one Damodar Prasad, it has been alleged that some change in the compromise deed filed in Civil Appeal No. 252 of 1988 has been made. At the time when the Petitioner was posted as Assistant Record Keeper, an enquiry was made by the Administrative Officer who submitted the enquiry report dated 19.5.1993 in which it was indicated that it was the responsibility of one Laxmi Prasad and not of the Petitioner. However, the District Judge, Ghazipur appointed Sri U. C. Tiwari, IInd Addl. District Judge, Ghazipur, to enquire into the matter and 28.1.1994 has been fixed for hearing. In the meantime Screening Committee was constituted to consider the cases of the employees for submission of the report. On the basis of the report of the Screening Committee, the District Judge, by the impugned order dated 16.12.1993 passed the order of compulsory retirement of the Petitioner which has been assailed in the present writ petition.

The learned Counsel for the Petitioner submitted that no show-cause notice was issued to the Petitioner after submission of the confidential report of the Screening Committee and before the action of compulsory retirement was taken against the Petitioner. It has further been submitted that the impugned order dated 16.12.1993 has been passed without giving any reason and without even supply of the copy of the report of the Screening Committee. The adverse entries are of the period prior to the Petitioner''s promotion and as such they cannot be considered for the action of compulsory retirement. The learned counsel also stated that the adverse entries were not communicated and he was not given any opportunity to submit his explanation and as such the order is arbritrary and based on irrelevant consideration.

In the counter-affidavit, it has been stated that the Petitioner was never promoted on the post of Munsarim. In fact the Petitioner being seniormost Assistant Record Keeper, he was required to perform duties of the post of Munsarim. The post of Assistant Record Keeper carries the same pay scale and appointment was not by way of promotion. The Petitioner has annexed copy of the order dated 31.7.1993 in which it has been provided that on retirement of one Rajpal Kapoor, Senior Administrative Officer, temporary arrangement was being made. In sequence of the above arrangement Sri Virendra Prasad, Assistant Record Keeper, who was the seniormost official in the scale of Rs. 1,200-2,040 was directed to work as Munsarim in the Outlying Court of Munsif Moh. Bad District Ghazipur vice Sri Mukhteshwar Prasad Kushwaha, In the same pay scale. The aforesaid order fully establishes that the Petitioner''s merit and suitability was not adjudged at all while assigning the work of the post of Munsarim. The arrangement being a local administrative arrangement on a similar post carrying the same pay scale and the Petitioner being the seniormost Assistant Record Keeper, he was allowed to perform the duties of Munsarim. Thus the Petitioner was neither promoted nor his merit and suitability was adjudged to establish that in view of the said promotion the previous adverse record stood washed out and cannot be considered for the purposes of Compulsory retirement. Further in the counter-affidavit, a detailed statement of adverse entries has been given. The Petitioner was awarded adverse entry in his character roll on 18.8.1979. A show-cause notice was issued on 3.5.1979 in respect of certain charges and after the Petitioner had submitted a detailed reply through his representation dated 14.6.1979, the adverse entry was awarded in the character roll on 18.8.1979. Similarly, he was awarded another adverse entry on 6.11.1979 after considering the explanation/reply dated 6.8.1979 against the showcause notice. The Petitioner was again given adverse entry in his Character roll on 15.7.1981 which was also communicated to the Petitioner. The Petitioner was awarded adverse entry on 5.1.1987 and the same was also communicated. The charge against the Petitioner was that he was held responsible for loss of certain record of pending Judicial cases. The Petitioner in his reply to the charges admitted his mistake due to unavoidable circumstances and due to mental tension and family problems and prayed for being pardoned. The adverse entry dated 28.5.1987 was communicated to him on 15.6.1987. The Petitioner was also awarded adverse entry dated 7.2.1989 and 8.2.1989 and the same were communicated to the Petitioner. These two entries also relate to loss of record in pending judicial cases for which he was found responsible. The Petitioner was given opportunity to submit his reply to the charges in this regard and after he has submitted his representation, the adverse entries were awarded.

The Screening Committee on consideration of the above adverse entries recommended for the compulsory retirement of the Petitioner in public interest. The District Judge Ghazipur, on consideration of report of the Screening Committee as also the relevant record passed the impugned order. The Respondents have taken the stand that the impugned order is neither by way of punishment nor the same is arbitrary or based on irrelevant consideration.

In view of the facts which have come on record, it is established that the Petitioner was not promoted on the post of Munsarim by order dated 31.7.1993 and the contention of the Petitioner that the entries prior to his promotion should not have been taken into account and the order vitiates for this reason, cannot be accepted. The order dated 31.7.1993 which has been filed with the rejoinder-affidavit as RA-1 clearly indicates that the Petitioner while working on the post of Assistant Record Keeper was also assigned the duties of Munsarim, a post in the same pay scale. The order requiring the Petitioner to perform the duties of Munsarim was passed due to his seniority and it was not passed after considering his merit and suitability. The adverse entries which have been placed on record and which have been passed are not the entries to reflect the unsatisfactory work of the Petitioner on an annual assessment but these entries were awarded on account of some irregularity committed by the Petitioner for which he was charged and his reply was considered before awarding the adverse entry. The contention of the Petitioner in the above circumstances cannot be accepted that he was not provided opportunity to represent against the said adverse entries. The averments made in the counter-affidavit fully establish that these adverse entries were awarded only after the Petitioner was given full opportunity to represent his case. Further opportunity, in the above circumstances is not required and these adverse entries would differ from the annual adverse report given on an overall assessment of the Petitioner''s work. The adverse entries awarded in the year 1987 and 1989 fully establish that the Petitioner was responsible for loss of the record of the pending Judicial cases and he was found to be careless and negligent in performance of his duties. In proceeding for the award of adverse entry dated 3.1.1987, the Petitioner in his reply has admitted his mistake.

For the above reasons, I am satisfied that the impugned action is neither arbitrary nor based on irrelevant consideration.

The reliance placed by the Petitioner in the case of Baldev Raj Chadha Vs. Union of India (UOI) and Others, , would not be helpful as there is sufficient material placed on record by the Respondents to establish that the action of compulsory retirement is not arbitrary and there is relevant adverse material against the Petitioner on the basis of which the impugned action has been taken.

In the case of Moin Ullah Khan v. State of U.P. 1994 (1) UPLBEC 518, the adverse entries have been passed after the Petitioner was served with show-cause notice and after consideration of his explanation to the charges. The Petitioner had ample opportunity to defend himself and it was not a case where adverse entries were not communicated and there was no opportunity to submit the explanation.

The law laid down in the case of Narasingh Patnaik Vs. State of Orissa, would also not be applicable as the Petitioner was not promoted and his merit and suitability was not adjudged in the year 1993 and the adverse entries remained effective and they cannot be treated to have either become stale or washed out after promotion.

In my opinion, there was ample adverse material before the Screening Committee as also the learned District Judge for taking the impugned action. I. am further of the opinion that for taking action of compulsory retirement, no show-cause notice is required to be given nor the copy of the report of Screening Committee is necessary to be supplied to the official. It is also established from the material on record that the impugned action is not by way of punishment.

For the reasons stated above, the petition lacks merit and is accordingly dismissed.