Heard Mr. Hemendra Pratap, Counsel for the petitioner and learned Standing Counsel.
Through the instant writ petition under Article 226 of the Constitution of India, Radhapati Singh (petitioner) has assailed the order dated 28.3.1990 contained in Annexure No. 6 to the writ petition, whereby he was compulsorily retired from services. He has also prayed for declaring the F.R. 56 (e) Explanation (2) as arbitrary and discriminatory being violative of Articles 14 and 16 of the Constitution of India.
It is relevant to add here that during pendency of the instant writ petition, sole petitioner Radhapati Singh expired and as such, his legal heirs were substituted in the array of petitioners, as stated hereinabove.
Radhapati Singh (petitioner), on completion of Apprenticeship, was appointed as Overseer in the U.P. Public Works Department vide office memorandum dated 18.11.1955. He was subsequently approved by the U.P. Public Service Commission in the year 1959. In the year 1973, the designation of the post of Overseer was changed to Junior Engineer (Civil). Thereafter, his services were governed by U.P. Public Works Department Subordinate Engineering Services, 1951, according to which, his appointing authority is the Chief Engineer, which has been designated as Engineer-in-Chief.
While Radhapati Singh was posted as Junior Engineer in Provincial Division, Public Works Department, Sitapur from 13.6.1978 to 10.9.1979, an FIR relating to Case No. 465 of 1980 under Section 406/409 I.P.C. was lodged against him with respect to pilferage of 60 mazphalt drums. On this ground, vide order dated 28.5.1985, he was placed under suspension in contemplation of inquiry by the Chief Engineer, Central Zone, Public Works Department, U.P., Lucknow. Thereafter, Sri Satish Chandra Gupta, Superintending Engineer, was appointed as Enquiry Officer vide order dated 20.12.1985 and a charge-sheet was served upon the petitioner, to which the petitioner tendered reply, in which he also prayed for cross-examining certain persons but except Sri Nand Kishore, none of them were called for cross-examination. Thereafter, the disciplinary authority has passed an order of punishment dated 14.10.1986, by which a recovery of Rs.11,400/- and Rs. 10694/- was ordered to be made from the petitioner with further orders to withhold the petitioner's integrity for the year 1978-1979 and it was also ordered that the petitioner shall not be posted in the working division for the next three years. Subsequently, vide order dated 16.10.1986, the petitioner was reinstated but the order regarding pay and allowances of the suspension period has not been passed and it has been stated that the aforesaid orders shall be passed in future.
Feeling aggrieved by the aforesaid orders, the petitioner approached the State Public Services Tribunal by filing Claim Petition No. 132/F/IV/1987, inter alia on the grounds that the Additional Chief Engineer has no power to pass the suspension order for the reason that the appointing authority of the petitioner is Engineer-in-Chief; no enquiry was conducted as per Rule 55 of the CCA because while the petitioner consumed only 26 Mazphalt drums, the charge of saving 98 drums cannot be levelled; the charges are based on conjuctures and surmises; and the impugned order is non-speaking order. In the said claim petition, the petitioner preferred an application for stay of the punishment order dated 14.10.1986. The Tribunal, after issuing notices, stayed the order of punishment dated 14.10.1986 vide order dated 10.6.1987.
According to the petitioner, while working in the Indian Population Project Construction Division, the Junior Engineers and other Engineers shall be allowed rent free accommodation and as such, on the basis of verbal orders, he occupied the residence constructed for the Junior Engineer on 13.7.1984. On creation of another division of Indian Population Project Construction Division, Deoria, he was asked to vacate the residence. Subsequently, a case, bearing No. 14/84, was filed against him by the State Government under U.P. Public Premises Eviction of Unauthorized Occupants Act, 1972, which was decided ex parte on 30.11.1985. Feeling aggrieved, the petitioner preferred an appeal, bearing Misc. Appeal No. 27/87, before the District Judge, Deoria. According to him, the District Judge, Deoria, while admitting the appeal, stayed the ex parte order dated 30.11.1985. For this matter, a charge-sheet duly approved by the Engineer-in-Chief, U.P. Public Works Department was served upon the petitioner vide letter dated 4.10.1985, to which the petitioner submitted his reply vide letter dated 4.11.1985 but without fixing any date, time and place, two punishments i.e. censure and stoppage of one increment with cumulative effect, were passed vide order dated 18.2.1987 but the same was not communicated to the petitioner. In this backgrounds, the impugned order dated 28.3.1990 has been passed by the Engineer-in-Chief, Public Works Department, U.P., Lucknow, retiring the petitioner compulsorily from service under Rule 56 (c) of Financial Hand Book, Volume II, Part II-IV Hence the instant writ petition.
Counsel for the petitioner submits that against various orders passed by the Chief Engineer, Public Works Department, the petitioner has preferred Claim Petition No. 132/F/IV/1987. During pendency of the instant writ petition, the Tribunal, after hearing the parties and perusing the records, vide order dated 3.4.1996, allowed the claim petition and quashed the order of punishment dated 14.10.1986 and the order dated 16.10.1986. He submits that the order of punishment dated 18.2.1987 has not been communicated to the petitioner. According to him, when a counter affidavit has been filed on behalf of the State in the instant writ petition, the petitioner learnt about the order dated 18.2.1987 and immediately thereafter, he approached the State Public Services Tribunal by filing Claim Petition No. 603/F/IV/1991. The Tribunal, vide judgment and order dated 8.5.2006, quashed the order of punishment dated 18.2.1987. Feeling aggrieved, the State has approached this Court by filing writ petition No. 872 (S/B) of 2007. This Court, vide order dated 27.8.2007, dismissed the writ petition.
Counsel for the petitioner has next submitted that in the criminal case i.e. Case No. 465 of 1980, lodged against the petitioner by the department, the trial Court, vide judgment and order dated 30.4.1990, exonerated the petitioner of the charges. Submission is that if any stale entry prior to period over 20 years has been used against the petitioner as material for compulsorily retiring him, the same is wholly arbitrary and illegal. His submission is that in passing the order of compulsory retirement only character roll entries of immediate proceeding five years are to be look into and no reliance should be placed upon the old entries. He submits that after his reinstatement, the petitioner earned continuously good character roll entries from his superior officers and his integrity has been certified, therefore, the impugned order of compulsory retirement is wholly arbitrary and illegal.
Elaborating his submission, Counsel for the petitioner has submitted that Fundamental Rule 56 (e) Explanation (2) as incorporated vide U.P. Act No. 33 of 1976 is arbitrary, discriminatory, unreasonable and is violative of Article 14 and 16 of the Constitution of India, insofar as there are no guidelines provided under F.R. 56 (e) Explanation (2) as to how and in what manner weightage should be given to the entries and corresponding weightage will be given to the achievement of the Government Servant and decade old entries have been allowed to be taken into consideration, without giving any importance to the subsequent achievement made by the Government servant.
To strengthen his arguments, Counsel for the petitioner has relied upon the judgment of the Apex Court in Sudha Shrivastava (Smt.) Vs. Comptroller and Auditor General of India : 1996 (1) SCC 63, Nair Service Society Vs. Dr. T. Beermasthan and others : 2009 (5) SCC 545, U.P. State Electricity Board and another Vs. Kharak Singh and another : 1990 SCC (L&S) 597, R.K. Singh Vs. State of U.P. and others : 1991 SCC (L&S) 1178 and this Court's judgment in State of U.P. and another Vs. Mahesh Chandra Maheshwari : 1995 (13) LCD 385.
Per contra, learned Standing Counsel submits that inspite of all efforts by the department, the report of the Screening Committee could not be found, even the original service records of the petitioner are not traceable and as such, in compliance of the orders of this Court, an Inquiry Committee was constituted. This Committee was entrusted with the work of collecting all the documents pertaining to the Compulsory Retirement on the basis of Screening Committee's report and all the relevant service records relied upon by the Screening Committee may be looked for. The Committee, after due enquiry, submitted its report on the above matter vide report dated 29.8.2013, mentioning clearly all the irregularities along with the fact that the Screening Committee Report could not be made available. In the said enquiry report dated 29.8.2013, two persons, namely, Sri Madhav Prasad Srivastava and Sri Ram Singh, Law Officer of the Department, were held responsible for not placing the order passed by this Court before the concerned officer and as such, Sri Ram Singh has been punished with a Censure Entry and Sri Madhav Prasad Srivastava died on 16.8.2013. Thereafter, another three Member Committee comprising of Mr. R.C. Barnwal, Chief Engineer, (building), P.W.D., President of the Committee, Mr. H.N. Pandey, Chief Engineer, Member of the Committee and Mr. J.B. Agarwal, Senior Staff Officer, P.W.D. Member Secretary of the Committee, was constituted in compliance of the order dated 30.8.2013, specifically for the purpose of tracing the original Screening Committee Report, on the basis of which the petitioner was compulsorily retired from services, and in the event, the said report could not be found, the Committee was entrusted with the task of pin pointing the responsibility on the persons responsible for the loss of the said Screening Committee Report. The aforesaid three members committee submitted its report on 4.10.2013, fixing responsibility on two persons, namely, Mr. Anurag Srivastava, Pradhan Sahayak and Smt. Puja Singh, Junior Sahayak of the department, for the loss of Screening Committee Report and as such, a disciplinary proceeding has been instituted against two persons. Subsequently, an application has been preferred for lodging an FIR in respect of the loss of the Screening Committee Report.
Learned Standing Counsel has submitted that the Annual Confidential Report book of the petitioner shows that petitioner was awarded in the year 27.11.1956 to 31.2.1957, adverse entry; in 1958-1959, Censure entry; in 1962-1963, adverse entry (integrity verified for certain period but withheld for some period; in 1963-1964, adverse entry (integrity withheld from 27.9.1963 to 31.3.1964); 1964-1965, adverse entry; 1968-1969, adverse entry; in 1972-1973, adverse entry and one censure entry; in 1974-1975, adverse entry and one censure letter; in 1975-1976, adverse entry; in 1978-1979, adverse entry and integrity withheld; in 1979-1980, adverse entry and integrity withheld; in 1984-1985, adverse entry; in 1985-1986, suspended; in 1987-1988, censure letter; and in 1989-1990, integrity not verified. Apart from the above adverse entries and censure entries in the record of the petitioner, there were number of anomalies, which were detected viz. (1) even the date of birth as recorded in the Service Book was 01.01.1936, whereas the petitioner mentions his date of birth in his claim petition as 01.01.1938; (2) ACR of 1987-1988 mentions that his initial date of appointment was 09.09.1956, whereas his other records show his initial appointment date as 19.12.1955; (3) the Superintending Engineer, Deoria, Padrauna, vide letter dated 8.12.1998, has informed that his promotional pay-scale due from 01.07.1988 was also stopped after he was found incapable for the same; (4) Vide order dated 14.10.1986, Chief Engineer (Central Zone), PWD, Lucknow ordered for recovery of amount of Rs.5700 +10,694= 16,394/-; (5) Vide order dated 21.10.1967, the Chief Engineer stopped three annual increments; (6) Vide order dated 27.2.1997, the Executive Engineer in pursuance of Chief Engineer's letter dated 25.5.1996 was declared not capable of getting selection grade due from 1.7.1982; (7) as per notings of the Executive Engineer, Nirman Khand, PWD, Deoria, he absented himself from his duty from 25.12.1981 to 23.3.1982 in an unauthorized manner; (8) no salary has been paid nor his services has been verified for the period 1.11.1960-31.12.1960, 1.2.1962-28.2.1962, 1.12.1962-31.1.1963, 1.2.1963-19.2.1963, 1.9.1963-26.9.1963, 1.6.1964-31.8.1964, 1.3.1965-31.3.1965, 1.10.1966-31.12.1966,1.7.1967-31.7.1967, 1.10.1967-8.10.1967, 1.4.1968-15.4.1968, 8.5.1968-14.5.1968, 15.5.1968-8.7.1968, 14.2.1969-11.1.1970,7.5.1970-20.5.1970, 21.7.1970-31.12.1972, 1.5.1973-20.6.1973,21.9.1973-6.5.1974, 18.6.1975-30.6.1975, 25.9.1977-31.12.1977,20.4.1978-30.4.1978,15.5.1978-31.5.1978,1.6.1978-30.6.1978, 1.4.1979-30.4.1979, 1.7.1979-10.9.1979, 1.3.1980-15.4.1980, 19.11.1981-30.11.1981, 1.12.1981-22.12.1981, 25.12.1981-31.3.1982 and 27.7.1983-31.7.1983. Therefore, the petitioner absented from his duty in an unauthorized manner during his service tenure for a total number of about 1770 days, which amounts to stupendous dereliction of duty. Hence, his compulsory retirement order dated 28.3.1990 is legal and aptly justified in view of the petitioner's chequered service record.
I have heard Counsel for the parties and perused the records.
The age of retirement of a Government servant is prescribed under Fundamental Rule 56 of F.H.B. Vol. II, Parts II to IV. Fundamental Rule 56 is quoted below :
"56. (a) Except as otherwise provided in this rule, every Government servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must be recorded in writing, but he must not be retained after the age of sixty years except in very special circumstances.
(b) A Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. He must not be retained in service after that date, except in very special circumstances and with sanction of the Government.
(c) Notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to any Government servant whether permanent or temporary, without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining of forty five years age or after he has qualifying service of twenty years.
(d) The period of such notice shall be three months :
Provided that :
(i) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement.
(ii) It shall be open to the appointing authority to allow Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice.
Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceedings the Government servant shall be informed before the expiry of his notice that it has not been accepted.
Provided also that the notice once given by a Government servant under Clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority.
(e) A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule.
Provided that where a Government servant who Voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less.
Explanation.--(1) The decision of the appointing authority under Clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest.
(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration
(a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or
(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or
(c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.
(2-A) Every such decision shall be deemed to have been taken in the public interest."
Fundamental Rule 56 empowers the Government to compulsorily retire a Government servant after he attains the age of 58 years. The same provision, i.e., Sub-clause (c) also provides that Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of 45 years or after completing qualifying service of 20 years. The explanation 2(a) prescribes that such order of compulsory retirement should be in public interest and appointing authority is entitled to take into consideration all materials relating to such officer. It further provides that any entry in the service record against which the representation is pending can also be taken into consideration provided the representation against such entry is also taken into consideration along with entry and to consider report of the the Vigilance Department.
According to the learned Standing Counsel, a Screening Committee was constituted by the department. The said Committee recommended compulsory retirement of the petitioner. The report of the Screening Committee was placed before the Disciplinary Authority and the Disciplinary Authority accepted the report of the Screening Committee in toto.
As regards the insufficiency of the material for compulsory retirement and failure to observe the principles of natural justice, it is suffice to say that the compulsory retirement, as contemplated under Rule 56(c) of the Fundamental Rules, is not by way of punishment or penalty and it does not caste any stigma. The object of invocation of such provision is to eliminate the dead-wood, worthless and callous. The order of compulsory retirement is based on subjective satisfaction of the appointing authority. The principle of natural justice has no place in exercise of such powers. Aggrieved person, who has compulsorily been retired, can challenge such orders only on the ground that requisite opinion has not been formed or the decision is not based on any material or decision is based on collateral material or decision is arbitrary decision or decision is mala fide.
In Baikuntha Nath Das & another versus Chief District Medical Officer : AIR 1992 S.C. 1020, the Apex Court has laid down the following proposition of law in para-32, which are reproduced as under :-
"32. The following principles emerge from the above discussion:
(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 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 interfere. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above."
In the case of Rajendra Singh Verma (Dead) through L.Rs and others vesus Lieutenant Governor (NCT of Delhi) and others: (2011) 10 SCC 1, the Apex Court has held that the competent authority has to take into consideration the overall service record including some of the adverse remarks which for technical reasons might have been expunged in appeal or revision. The Apex Court has held that in absence of mala fide or arbitrary exercise of powers, the decision of the competent authority should not be interfered with in exercise of powers of judicial review. The possibility of different view can not be a ground for upsetting of decision of the competent authority. If a bona fide decision has been taken based on some material in public interest, for providing efficiency, then such decisions can not be questioned in judicial review.
In Union of India versus V.P. Seth :1994 SCC (L & S) 1052, it has been held that uncommunicated adverse remarks can be taken into consideration while passing the order of compulsory retirement.
It is well settled by a catena of decisions of the Apex Court that while considering the case of an officer as to whether he should be continued in service or compulsorily retired, his entire service record up to that date on which consideration is made has to be taken into account. What weight should be attached to earlier entries as compared to recent entries is a matter of evaluation, but there is no manner of doubt that consideration has to be of the entire service record. The fact that an officer, after an earlier adverse entry was promoted does not wipe out earlier adverse entry at all. It would be wrong to contend that merely for the reason that after an earlier adverse entry an officer was promoted that by itself would preclude the authority from considering the earlier adverse entry. When the law says that the entire service record has to be taken into consideration, the earlier adverse entry, which forms a part of the service record, would also be relevant irrespective of the fact whether the officer concerned was promoted to higher position or whether he was granted certain benefits like increments, etc. Ordinarily the Courts are not interested in sufficiency of materials upon which the order of compulsory retirement is based. It is well settled that formation of opinion for compulsory retirement is based on subjective satisfaction of the authority concerned. The Courts can certainly look whether the valid material exists or not, or whether the order of compulsory retirement is based on some material or not, but sufficiency of material can not be ground for setting aside the order of compulsory retirement.
I have carefully considered all the materials in this case. Admittedly, the report of the Screening Committee has been misplaced/untraceable and for this, an enquiry was instituted and after due enquiry, necessary action against the delinquent employee for loss of Screening Committee's report was taken by the department and also lodged an FIR against the erring employee. However, three member committee was appointed by the department in compliance of the order of this Court and after taking into consideration the departmental records, adverse entries found in the service records, submitted its report by the Committee. Thereafter, a supplementary counter affidavit has been filed on behalf of the opposite parties duly sworn by Mr. Arvind Kumar Gupta, Engineer-in-Chief, U.P. Public Works Department, Lucknow, whereby number of adverse materials were brought on record against the petitioner, which shows the petitioner's chequred service record. Thus, the impugned order was not based merely on adverse remarks of a single year. The overall conduct of entire career of petitioner was considered and then he was found fit for compulsory retirement. It is apparent that suitability, utility and desirability to continue in service in public interest was the sole consideration for passing of the impugned order and no stigma is attached to his retirement. The petitioner is entitled to receive all admissible retiral benefits.
The judgments, upon which reliance has been placed by the Counsel for the petitioner and mentioned hereinabove, are not applicable in the present facts and circumstances of the case.
For the reasons aforesaid, no interference from this Court is made out in exercise of powers under Article 226 of the Constitution of India.
The writ petition is devoid of merit and is liable to be dismissed. The writ petition is accordingly dismissed.
The parties to bear their own costs.
Order Date : 25th March, 2014 Ajit/-