Court No. - 21
Case :- SPECIAL APPEAL DEFECTIVE No. - 24 of 2018 Appellant :- Rizwan Ahmad Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- D.C. Dwivedi, Tarun Agrawal, Vishal Agarwal Counsel for Respondent :- C.S.C.
Hon'ble Govind Mathur,J. Hon'ble Chandra Dhari Singh,J.
(Per Hon'ble Chandra Dhari Singh, J)
01. Heard learned counsel for the appellant, learned Standing Counsel for the State-respondents and perused the record.
02. This appeal is before us to examine correctness of the order dated 05.12.2017 passed by learned single Bench in Writ - A No. 48049 of 2017 whereby the writ petition was dismissed.
03. Brief facts of the case is that the appellant was appointed as Excise Inspector, in Excise Department State of U.P. on 25.11.2002. Government of U.P. issued a Government Order dated 06.07.2017, in order to ensure efficiency in government service and weed-out dead woods, to screen the candidature of employees who have attained age of 50 years on 31.03.2017 and retire them compulsorily, according to the Government Order dated 26.10.1985, which requires consideration of last 10 years' service records. The date of birth of the appellant is 05.11.1962.
04. The chart of 10 years of service record of the appellant was prepared for consideration of Screening Committee from 2006-07 to 2015-16. Screening Committee constituted for purposes of examining candidatures of 102 Excise Inspectors in U.P., held its meeting on 28.08.2017. Screening Committee in its resolution dated 28.08.2017, found that in the year 2006-2007, integrity of the petitioner was found doubtful. In the year 2007-08, his working was found doubtful as target of country-made liquor licence could not be achieved in his area. The appellant was awarded/given bad entry in the annual service record of that year. The appellant was also awarded censure entry by order dated 22.05.2012 in disciplinary proceedings. The ten years' service record of the appellant was found not satisfactory. For aforementioned reasons, the petitioner was found fit for giving compulsory retirement in public interest. In pursuance of report of Screening Committee, Excise Commissioner, U.P., by order dated 07.09.2017, directed for compulsory retirement of the petitioner from service, under Rule 56 (c) of Fundamental Rules, giving three months salary.
05. Aggrieved by the order dated 07.09.2017 passed by the Excise Commissioner, U.P. the appellant-petitioner has filed the a Writ – A No. 48409 of 2017, which was dismissed by the learned single Judge vide order dated 05.12.2017, hence the present special appeal has been preferred.
06. Learned counsel appearing on behalf of the appellant submitted that in the chart dated 22.08.2017 relating to service record of the petitioner as supplied by Deputy Excise Commissioner to Screening Committee shows that in the year 2006-07, there is an adverse entry. In the years 2007-08, 2009-10, 2012-13, 2013-
14, 2014-15 and 2015-16 entries are blank. For the year 2008-09, entry is 'satisfactory'. For the years 2010-11 and 2011-12, entries were 'very good'. Thus out of ten years record, six years were blank. In recent years his service record was very good. past conduct, performance, behavior and service record are to be seen only for the purposes of finding out as to whether the officer has lost his utility and has become dead-wood. The officer may have committed irregularities or might have failed in faithful discharge of his duties in initial stage of his service but may have improve in given passage of time cannot be declared as dead-wood.
07. Learned counsel appearing on behalf of the appellant submitted that so far as censure entries awarded to the petitioner by orders dated 22.05.2012 and 09.09.2013 are concerned, aforesaid entries were stayed by State Public Service Commission U.P. in Claim Petition No. 1927 of 2015, by order dated 07.01.2016 and in Claim Petition No. 371 of 2016, by order dated 06.09.2016, respectively. These stay orders were communicated to the department but were not placed before Screening Committee at the time of its meeting on 28.08.2017.
08. Learned counsel appearing on behalf of the appellant further submitted that the learned single Judge has erred in law in not considering the fact that there being no provision in law prescribing award of intermediate/mid-term adverse entries, the same being therefore non est. It is further submitted that the definition of report as provided in Rule 3(e) of the U.P. Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 being clearly referable to annual entries and not mid-term entries, the reliance placed by the Screening Committee on mid-term entries being illegal deserves to be set aside. Learned counsel for the appellant submitted that it is well settled law that if the compulsory retirement is seems to be affected by the points (a) malafide or (b) that is based on no any evidence or (c) that is arbitrary, the Court may interfere in the grievances. The Screening Committee was failed to consider the stay order about the censure entries passed vide order dated 22.05.2012 as well as 09.09.2013, which have already been stayed by the State Public Service Tribunal, U.P.
09. Learned counsel for the appellant submitted that the learned single Judge has erred in considering the integrity and efficiency of the appellant, the Screening Committee should demonstrate that in the service record of the appellant for preceding 10 years period of the service and as such here from 2006-07 to 2015-16 does not exist any entry in the service record of the appellant for the total number of seven years namely 2007-08, 2009-10, 2012-13, 2013-
14, 2014-15 and 2015-16. Secondly amongst the valuable entries, the entry of the appellant for the year 2008-09 is satisfactory and for the year 2010-11 and 2011-12 is excellent.
10. Learned counsel for the appellant also submitted that the learned single Judge has erred in law in treating the mid-term adverse entries as evidence of misconduct, contrary to the law established by Hon'ble Supreme Court.
11. Learned Standing Counsel appearing on behalf of the State- respondents vehemently opposed the arguments advanced by the learned counsel for the appellant and submitted that order of compulsory retirement in terms of the rule/regulation providing for such compulsory retirement is not open to interference unless shown to be malafide or arbitrary or not based on any background material at all relating to unsatisfactory service, justifying the premature retirement. He further submitted that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the statutory rules. It is further submitted that authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee "rendered himself a liability to the institution", there is no occasion for the court to interfere in the exercise of its limited power of judicial review. The order of compulsory retirement of the appellant-petitioner is in accordance with Rule 56 of the Fundamental Rules.
12. We have considered the arguments of the counsel for the parties and perused the record.
13. Rule 56(c) of Fundamental Rules is reproduced as under:
“(a)........ (b).....
(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 the age of [forty five years] or after he has completed qualifying service for 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 fall 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 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 is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in 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.”
14. Before we delve into the rival submissions raised at the bar we must deal with the contention canvassed by learned Standing Counsel that the committee had recorded its subjective satisfaction and once subjective satisfaction has been recorded the Court should not interfere. We may hasten to add the concept of subjective satisfaction does not necessarily mean that there can be no material and the competent authority can take a flight in fancy. Subjective satisfaction cannot be done in a manner which a prudent man can never conceive. Satisfaction like discretion has to be based on proper consideration and weighment of material. In our considered opinion subjective satisfaction cannot be scanned as if one is sitting in an appeal, but it must meet the requirement of appreciation expected of a prudent man and the appreciation should be relevant and germane to the purpose apropos to its context. It cannot be conceived for a moment that the subjective satisfaction would take away the order from the purview of judicial scrutiny solely on the basis that the Committee has been subjectively satisfied.
15. In the case of State of Gujrat Vs. Umedbhai M. Patel (2001) 3 SCC 314, the Hon'ble Supreme Court held:
The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:
“(i) Whenever the services of a public servant are no longer useful to the general administration, the officer 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 weightage 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.”
16. In the case of State of U.P. Vs. Lalsa Ram (2001) 3 SCC 383 the Apex Court in para-15 of the judgment held as under:
“15. Incidentally, the five guiding principles as laid down in Baikuntha Nath's case (supra) by this Court stands accepted in another three-Judges Bench's judgment of this Court in Posts and Telegraphs Board v. CSN Murthy wherein this Court observed that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement, the courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bona fide on the basis of the material available on record: Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence.”
17. From the aforesaid enunciations of law there remains no iota of doubt that the order of compulsory retirement is not to be passed as short cut to avoid departmental enquiry and that order is to be passed after having due regard to the entire service record of the officer. It is also follows that an order has to be tested on the touchstone that no reasonable person would form requisite opinion on the given material. To elucidate, the order should not smack of perversity or based on no material or prima facie malafide.
18. The present factual matrix has to be tested on the anvil of the aforesaid principles of law. As has been indicated herein above.
19. The past conduct, performance, behavior and service record are to be seen only for the purposes of finding out as to whether the officer has lost his utility and has become dead-wood. The officer may have committed irregularities or might have failed in faithful discharge of his duties in initial stage of his service but may have improve in given passage of time cannot be declared as dead- wood. Under Government Order dated 21.02.2005, it is compulsory to record annual entry up to 30th September of next year.
20. If the entry was not filled up in time, then an employee cannot be made to suffer for it. In this chart, integrity of the petitioner was not withheld in any year. So far as censure entries awarded to the petitioner by orders dated 22.05.2012 and 09.09.2013 are concerned, aforesaid entries were stayed by State Public Service Commission U.P. in Claim Petition No. 1927 of 2015, by order dated 07.01.2016 and in Claim Petition No. 371 of 2016, by order dated 06.09.2016, respectively. These stay orders were communicated to the department but were not placed before Screening Committee at the time of its meeting on 28.08.2017. For the incident dated 19.12.2015, relating to alleged recovery of huge quantity of liquor from the residence of the petitioner, FIR of Case Crime No. 611 of 2015 was lodged against the petitioner. In which police submitted charge sheet, on which cognizance was taken and Criminal Case No. 3963/9 of 2016 was registered against the petitioner in which Additional Chief Judicial Magistrate Court No. 2, Muzaffar Nagar acquitted the petitioner by judgment dated 20.03.2017. In disciplinary proceeding also Inquiry Officer submitted his report dated 10.03.2016, finding that charges were not proved. All these materials were not placed before Screening Committee.
21. The respondents have also failed to bring on record any material, which could justify treating the appellant-petitioner as 'dead wood'. It is also worth notify that the order of compulsory retirement even does not state that the respondents have taken the decision to compulsory retire the appellant in the public interest, which is the only ground on which an employee can be compulsory retired.
22. Accordingly, we are of the considered view that the action of compulsory retirement of the appellant has not been taken by the respondents on proper screening of service record and the appellant has wrongly been retired, thus, action of the respondent is not sustainable.
23. In view of the above discussion and the judgment passed by the Apex Court, the order dated 05.12.2017 passed by learned single Bench in Writ - A No. 48049 of 2017 and order dated 07.09.2017 passed by Excise Commissioner, U.P., directing compulsory retirement of the appellant-petitioner are set aside. The appellant-petitioner be reinstated in service with all consequential benefits.
24. The benefit of back wages depends upon the various factors that whether during this period the employee concerned was engaged somewhere or not. The appellant-petitioner may file representation to the Government in respect of grant of back wages and the Government may consider the same in accordance with law.
25. The special appeal is allowed accordingly.
Order Date :- 23.08.2018 Prajapati [Chandra Dhari Singh, J] [Govind Mathur, J]