JUDGMENT S. Rafat Alam and Sudhir Agarwal, JJ.
1. This special appeal, under the Rules of the Court, is preferred against the order dated 23.4.2004 of the Hon'ble Single Judge of this Court whereby writ petition No. 19741 of 2004 of the appellant against the order of compulsory retirement has been dismissed by the Hon'ble Single Judge.
2. Learned Counsel for the petitioner-appellant contended that the impugned order of compulsory retirement is vitiated, since (i) certain entries, which were not communicated to the petitioner-appellant, were taken into account; (ii) in respect of one of adverse entry his representation was pending but without its disposal the entry was taken into consideration; and (iii) the departmental inquiry was initiated, but without completion thereof, the impugned order of compulsory retirement has been passed, which shows that the foundation of the order is punitive. He further submits that he was reverted in the year 1999 and adverse entries relate to the period when he was working on the higher post and, therefore, once, on the basis of the adverse entries and other service record, he was already reverted to the lower post, he could not have been compulsory retired on the basis of same service record, as it amounts to double jeopardy.
3. Learned Standing Counsel, however, submits that the order of compulsory retirement has been passed after considering entire service record of the petitioner-appellant in accordance with the provisions contained in Fundamental Rule 56 and all these aspects were placed before the Hon'ble Single Judge, who has considered the same in detail and, 7 therefore, the appeal is liable to be dismissed and the judgment of the Hon'ble Single Judge does not require any interference.
4. We have heard learned Counsel for the parties and also perused the record.
5. The undisputed facts show that the petitioner-appellant was appointed on 8.7.1972 as clerk in the Labour Department, and was promoted to the post of Welfare Superintendent on 2.10.1986 and Labour Enforcement Officer on 19.12.1989, On 20.4.2000, on the basis of the recommendation made by the screening committee, the Labour Commissioner passed an order compulsory retiring the petitioner-appellant under Fundamental Rule 56 (c). It appears that in the preceding ten years of service the petitioner-appellant received adverse entries in the years 1991-92, 1992-93, 1993-94 and 1999-2000 (1.4.1999 to 25.10.1999) and (26.10.1994 to 31.3.2000). It also appears that against the adverse entries, communicated to the petitioner-appellant, representations were made and the same were disposed of whereafter the service record was communicated to the screening committee. Considering the fact that in the last ten years the character role of four years was adverse, and on the assessment of work and performance of the petitioner-appellant, the committee expressed its view that the petitioner-appellant has lost his utility and recommended for his compulsory retirement. Accordingly, the competent authority has passed the impugned order of compulsory retirement.
6. Considering the facts of the case and the submissions advanced on behalf of the appellant, broadly, this Court has to adjudicate upon the following issues: -
1. Whether the adverse entries against which representation is said to be pending can be taken into account for considering an employee for premature retirement under Fundamental Rule 56, as applicable in the State of Uttar Pradesh?
2. Whether the entries, which are adverse and not communicated to the employee, can be considered for premature retirement under Fundamental Rule 56?
3. Whether the material available before the competent authorities in respect to the petitioner-appellant can justify the order of compulsory retirement or it can be said to be an order based on no material?
4. Whether an order of compulsory retirement passed when a departmental inquiry was initiated but not completed, can be said to be punitive and is vitiated only on that ground?
7. The first submission of the learned Counsel for the appellant is that without disposing of his representations the adverse entry has been taken into account, which was impermissible. We do not find any force in the aforesaid submission. The respondents have taken stand that the representations filed by the petitioners were disposed of and no representation was pending. Hon'ble Single Judge has found the aforesaid factual position as correct and has recorded in the judgment as follows: -
The representations filed by petitioner against these entries have been disposed of and that no representation is pending at present.
8. Learned Counsel for the petitioner-appellant could not show that the aforesaid finding is incorrect or any representation was pending. What he contended is that the representation was rejected on the ground of time barred. We are of the view that even if the representation has been rejected on the ground of limitation, it cannot be said that it was pending, since the authorities have rejected the same. It is not the case of the petitioner-appellant that he challenged the order of the authorities rejecting his representation. The said orders, thus, have attained finality in the absence of any challenge. Therefore, this contention of the appellant is rejected.
9. Even otherwise, even if the representations would have been pending or remain undecided, it cannot be said that the adverse entries against which the representation was pending could not have been considered. Fundamental Rule 56, as amended and applicable in U.P., empowers the competent authority to consider all the adverse entries in the entire service record, if the representation is pending provided the representation is also taken into consideration along with the entries. Therefore, the abstract contention that without disposal of the representation adverse entry cannot be considered is not correct.
10. Before considering the aforesaid second issue, it would be appropriate to reproduce Fundamental Rule 56, as applicable in UP. Fundamental Rule 56, as it stands after its amendment in 1976, is reproduced as under: -
56.(a) Except as otherwise provided in other clauses of this rule, the date of compulsory retirement of a Government servant, other than a Government servant in inferior service, is the date on which he attains the age of 58 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 60 years except in very special circumstances.
(b) The date of compulsory retirement of a Government servant in inferior service is the date on which he attains the age of 60 years. He must not be retained in service after that date, except in very special circumstances and with the sanction of 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 50 years, or such Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of 45 years or after he had completed qualifying service of 20 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 50 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 rates at which he was drawing them immediately before his retirement;
(ii) It shall be open to the appointing authority to allow a 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 in pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding 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 persons shall be payable and other retirement benefits, if any, shall be available in accordance with the 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 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 requires 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 into the public interest.] (3) The expression " appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire, and the expression "qualifying service" shall have the same meaning as in the relevant rules relating to retiring pension.
(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to Clause (d) of the rule shall have effect from the afternoon of the date of its issue, if the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office, his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired.
11. A bare perusal of Fundamental Rule 56 shows that the entire service record of an employee is to be seen, which includes the entries, which are not communicated. Although in the case in hand, the appellant could not show as to which adverse entry has been taken into account without communicating to him yet assuming that there was an adverse entry not communicated to the appellant, this fact by itself would not vitiate the order of compulsory retirement since Fundamental Rule 56, as applicable in UP, itself authorizes the competent authority to consider the entire service record of the employee.
12. A similar question came up before the Hon'ble Apex Court in State of U.P. and Anr. v. Lalsa Ram wherein the Hon'ble Apex Court considered Fundamental Rule 56, as applicable in U.P. Lalsa Ram was working as Deputy Collector, At the time when he was compulsorily retired in the year 1998 the screening committee considered the entire service record and found that he was administered adverse entries in 1967-68, 1981-82, 1982-83 and 1991-92 as well as censor entry dated 18.1.86. Although there was no adverse entry in the preceding five years yet considering the constant deterioration in the performance of Shri Lalsa Ram, he was recommended for compulsory retirement. The writ petition filed by Lalsa Ram challenging the aforesaid order of compulsory retirement was allowed on the ground that there being no adverse entry in preceding five years and the adverse entries from 1967 to 1982 being old and stale, only on the basis of one adverse entry of the year 1991-92 it was not justified to retire him compulsorily. The Hon'ble Apex Court allowing the appeal of the State Government considering Fundamental Rule 56 observed as under: -
The Uttar Pradesh Fundamental Rules governing the service conditions of the respondent herein, in particular, Rules 56(c) & Explanation 2(a), (b) & (c) specifically provide that nothing in the Rules should be construed to exclude from consideration any entry relating to any period before a government servant was allowed to cross any efficiency bar or he was promoted to any post in an officiating or a substantive capacity or on an ad hoc basis. The important words used are: nothing herein contained shall be construed to exclude from consideration: the exclusion thus is prohibited in terms of the rule. The authority concerned, by reason wherefor has thus a liberty to consider even entries relating to the period before the government servant was allowed to cross any efficiency bar or before he was promoted. It is true that one of the guiding principles as enunciated above in Baikunfha Nath case with regard to performance during the later years ought to be attached more importance but that does not exclude the consideration of the entire record of service.
13. Coming to question Nos. 3 and 4 collectively, it would be appropriate to analyse the object and purpose of compulsory retirement, the source of power and the scope of judicial review in such matters.
14. In Allahabad Bank Officers' Association and Anr. v. Allahabad Bank and Ors. , the Apex Court observed as under: -
The power to compulsorily retire a government servant is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in the service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration.
15. In S. Ramachandra Raju v. State of Orissa 1994 Supp. (3) SCC 424, held as under-
It is thus settled law that though the order of compulsory retirement is not a punishment and the government employee is entitled to draw all retiral benefits including pension, the Government must exercise its power only in the public interest to effectuate the efficiency of service. The dead wood needs to be removed to augment efficiency. integrity in public servant needs to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service, and free from corruption and incompetence. The officer would live by reputation built around him. In an appropriate case there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such and his continuance in service would be a menace in public service and injurious to public interest.
16. In Posts and Telegraphs Board v. C.S.N. Murthy , the Hon'ble Apex Court considered the scope of judicial review as under: -
An order of compulsory retirement is not an order of punishment. F.R. 56 (j) authorizes the government to review the working of its employee at the end of the period of their service referred to therein and to require the servant to retire from service, if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the government to decide upon. The Courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record.
(Emphasis Added)
17. In M.S. Bindra v. Union of India and Ors. AIR 1998 SC 3058 the Hon'ble Apex Court held as under: -
Therefore, judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or malafide or if it is based on no evidence, the observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into.
18. In State of Orissa and Ors. v. Ram Chandra Das the Apex Court held: -
...It is needless to reiterate that the settled position is that the government is empowered and would be entitled to compulsory retire a government servant in public interest with a view to improve efficiency of administration or to weed out the people of doubtful integrity or are corrupt but sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service.
19. In State of U.P. and Anr. v. Abhai Kishore Masta the Hon'ble Apex Court held as under: -
...if the charge or imputation against the officer is made the condition of the exercise of the power it must be held to be by way of punishment - otherwise not. In other words if it is found that the authority has adopted an easier course of retiring the employee under Rule 56 (j) instead of proceeding with and concluding the enquiry or where it is found that the main reason for compulsorily retiring the employee is the pendency of the disciplinary proceeding or the levelling of the charges, as the case may be, it would be a case for holding it to be penal. But there may also be a case where the order of compulsory retirement is not really or mainly based upon the charges or the pendency of disciplinary enquiry. As a matter of fact, in many cases, it may happen that the authority competent to retire compulsorily under Rule 56(j) and authority competent to impose the punishment in the disciplinary enquiry are different. It may also be that the charges communicated or the pendency of the disciplinary enquiry is only one of the several circumstances taken into consideration. In such cases it cannot be said that merely because the order of compulsory retirement is made after the charges are communicated or during the pendency of disciplinary enquiry, it is penal in nature..
20. Thus, the law settled by a catena of cases, some of which referred to above, is that the whole purpose of the provision made for compulsory retirement is to weed out the worthless without resorting to bona fide extreme covered by Article 311 of the Constitution. After all the administration to be efficient has to be meant by efficient, competent and prone workers and should not be meant by drones do nothing, incompetent and un-worthies. Lacking of efficiency by itself does not amount to a misconduct and, therefore, such incumbent may not be delinquent needs to be punished but may prove to be a burden on the administration, if by insensitive, insouciant, unintelligent or dubious conduct impede the floor or promote stagnation. In a developing country where speed, probity, sensitive, enthusiastic, creativity and non-brevity process are immediately required, callous cadres and paper logged are the bees setting sin of the administration. Therefore, it is in public interest to retire a never doer person. Some times the reputation or otherwise the information available to the superior officers reflects on the integrity of the employee but there may not be sufficient evidence available to initiate punitive action, but conduct and reputation for continuing of such person is menace in public service and injurious to public interest. In said case also the order of compulsory retirement may be passed by the competent authority.
21. Again in para 13 of the judgment in State of U.P. and Anr. v. Lalsa Ram (supra), the Hon'ble Apex Court held that Fundamental Rule 56 confers the right absolute to retire an employee on happening of certain event namely, the employee attaining 50 years of age. The only guiding factor is the public interest to retire an employee. It also held that the right being absolute and in the event it is not contrary to the condition, as embodied in Fundamental Rule 56, the question of violation of any legal right of an employee would not arise. It further held that where the material is sufficient and conclusion of the authority would have been justified, it cannot be a matter of judicial review, since primarily it is for the departmental authority to decide. The delinquency of the entry and whether it is of such a degree as to reflect on the efficiency of the employee has to be decided by the authorities and the Courts have no authority or jurisdiction to interfere with such exercise of power, if arrived at bona fide on the basis of the material on record. Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence. Showing its agreement with the law laid down in State of Punjab v. Gurdas Singh , the Hon'ble Apex Court in State of U.P. and Anr. v. Lalsa Ram (supra) further held as follows: -
...The appointing authority upon consideration of the entire service record as required under the Rules and having formed its opinion that the compulsory retirement of the respondent being in public interest issued the order and in the wake of the aforesaid, question of any interference of this Court does not and cannot arise. Interference in these matters by the courts in exercise of their jurisdiction under the constitutional mandate is very restricted and the courts shall have to tread on the issue with utmost care and caution by reason of very limited scope of interference. The High Court has, in fact, ignored this aspect of the matter and proceeded solely on the basis of the factum of there being no adverse entry in the recent past. Needless to state that adverse entries did not stand extinguished by mere lapse of time but they continued to be on record and it is for the employer to act and rely thereon in the event of there being a rule permitting an order of compulsory retirement.
22. The submission of the learned Counsel for the petitioner-appellant is that once departmental inquiry is initiated, without completion thereof, he could not have been retired compulsorily, has also no force. In this regard, learned Counsel placed reliance on the judgment of Hon'ble Apex Court in the case of State of Gujarat v. Umedbhai M. Patel . The facts in the aforesaid case do not support the contention of the learned Counsel for the petitioner-appellant and is clearly distinguishable. In the said case a departmental inquiry was initiated in the year 1986 whereafter he was allowed to cross efficiency bar at the age of 50 years and was promoted to the higher post. The review committee further considered his service record and did not recommend the employee for compulsory retirement. However, when the employee had less than two years of service, order of compulsory retirement was passed. On the facts and circumstances of the case, the Hon'ble Apex Court found that the order of compulsory retirement was passed on extraneous reasons.
23. The case in hand is totally different. In the service record of the appellant of preceding ten years, which has been screened by the screening committee, entries of four years have been found to be bad and also reflect upon the work and conduct of the petitioner-appellant. In the latest entry of the par 1999-2000 the Reporting Officer has mentioned that the petitioner-appellant did not show interest in the work. His behaviour towards representative of workmen and Superior Officers was not courteous and he disobeyed the orders of the Senior Officers and the Government Orders. His work was found to be ordinary. The integrity was certified. The Approving Officer rated his work as 'bad'. Again, for another part of the year 1999-2000 the Reporting Officer mentioned that the petitioner-appellant did not take sufficient interest in his work and his work and conduct was found to be very ordinary and unsatisfactory. Therefore, in the instant case, in the case of the appellant it cannot be said that the order of the compulsory retirement was passed on extraneous reasons.
24. Besides, a government servant, when compulsory retired, during the pendency of departmental inquiry, on that basis alone, it cannot be said that the order of compulsory retirement is vitiated in law, unless there is material to show that the order of compulsory retirement, in fact, is punitive and by way of punishment. In State of U.P. v. Abhai Kumar Masta (supra) a similar question cropped up for consideration before the Hon'ble Apex Court. Shri Abhai Kumar Masta was working as Executive Engineer. He was suspended, pending inquiry, on 13.10.1983 and while the said inquiry was pending the Government passed order dated 28.12.1999 retiring him compulsorily. Assailing the order of compulsory retirement in writ petition No. 1518 of 1990 on the ground that the order of compulsory retirement during the pendency of inquiry was penal in nature. During the pendency of writ petition the Government completed the inquiry and passed order on 18.7.1990 imposing punishment of reduction in rank so that in case the order of compulsory retirement is set aside the punishment may be given effect to. Shri Masta got his writ petition amended challenging the order of punishment also. This Court following its earlier judgment in J.N. Bajpai v. State of U.P. and Ors. 1998 (8) LCD 149 allowed the writ petition quashing the order of compulsory retirement on the ground that the order having been passed during the pendency of disciplinary proceeding must be deemed to be penal in nature. The Hon'ble Apex Court over ruled the aforesaid view taken by this Court in J.N. Bajpai (supra) and this Court's judgment in Abhai Kumar Masta's (supra) was also set aside. It was held that as a matter of law or as an invariable rule, it cannot be said that any and every order of compulsory retirement made under Fundamental Rule 56 or other corresponding provision thereto during the pendency of disciplinary proceeding is necessarily penal. It is a matter to be decided by verification of relevant record or the material on which the order is based. The Hon'ble Apex Court reiterated its view taken earlier in the case of The State of Uttar Pradesh v. Madan Mohan Nagar AIR 1967 SC 1260 where a Constitution Bench held that the test to be applied in such matters is "does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsory?
25. The Hon'ble Apex Court held in para 9 of Abhay Kumar Masta's (supra) case held that merely because the order of compulsory retirement is couched in innocuous language without making imputation against the government servant the Court need not conclude that it is not penal in nature. It as also observed that the test, as are applicable in the mater of termination of temporary employee, may be adopted in the case of compulsory retirement also.
26. In State of Madhya Pradesh v. Indmsen Jain AIR 1998 SC 982 a charge sheet was issued on 29.12.1997 and when the departmental inquiry was pending Shri Jain was compulsory retired. The Hon'ble Apex Court held that the said fact, by itself, is not sufficient to draw a conclusion that the order of compulsory retirement is by way of punishment. The relevant observation is reproduced as under: -
On the date of his compulsory retirement, a departmental enquiry was also pending against him. From this record, it is not possible to come to the conclusion that the order of compulsory retirement was, in fact, imposed by way of punishment.
27. In the instant case the order of compulsory retirement is innocuous having been passed in public interest and there is no material to show that it is based on the allegation subject matter of inquiry, which was pending at the relevant time. Besides, as discussed above, there is sufficient material to justify the conclusion drawn by the competent authority that the petitioner has ceased to be a useful employee and deserved to be retired having lost his utility to the department. The view taken by the competent authority can neither be said to be arbitrary or capricious nor it cannot be said to be founded on the alleged departmental inquiry pending against the petitioner. Therefore, this contention is also rejected.
28. Lastly, the contention of the learned Counsel for the petitioner-appellant that once the petitioner-appellant was reverted, the order of compulsory retirement amounts to double jeopardy, is noted to be rejected out right inasmuch as the compulsory retirement is not a punishment at all. For the last more than 50 years commencing from the case of Shyam Lal v. State of U.P. AIR 1954 SC 369. the Hon'ble Apex Court has consistently taken the view that compulsory retirement is not a punishment at all. In that view of the matter, it cannot be said that the principle of double jeopardy would apply in such case.
29. Learned Counsel for the petitioner-appellant, at this stage, informs that the respondents has not been paid his retiral benefits, although It is disputed by the learned Standing Counsel. However, we hope and trust that in case the retiral benefits, payable to the appellant in accordance with rules, if not already paid, shall be paid expeditiously, preferably within a period of three months from the date of production of certified copy of this judgment.
30. In the result, we do not find any merit in the special appeal. It is accordingly dismissed. No order as to costs.