Daleep Kumar Saxena vs District Judge, Bareily & Others
2015 Latest Caselaw 1363 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	
 
COURT NO.36
 
SPECIAL APPEAL NO.170 OF 2007
 
Daleep Kumar Saxena. 					....Appellant
 
Vs.
 
District Judge, Bareilly and others.    	                  ....Respondents
 
************
 
Hon'ble Rajes Kumar,J.

Hon'ble Shamsher Bahadur Singh, J.

Heard learned counsel for the parties.

This is an appeal against the order of learned Single Judge dated 12.01.2007 passed in writ Petition No.54523 of 2005, whereby learned Single Judge has dismissed the writ petition being devoid of merit.

Appellant was Amin in Bareilly Judgeship. In February, 1994, a complaint was made that the appellant while performing his duties as Amin took Rs.50/- as expenses and demanded Rs.500/- by way of bribe. On the complaint being made, an enquiry was made and the appellant was awarded punishment of stoppage of two increment permanently. Against the said order, the appellant filed statutory appeal before the Hon'ble Administrative Judge, Bareilly Judgeship. The then Hon'ble Administrative Judge, Bareilly Judgeship allowed the appeal in part and reduced the punishment to the stoppage of two increments for five years only. Against the said order, the appellant filed Writ Petition No.26996 of 1999, which has been allowed vide order dated 06.08.2013 whereby the punishment order has been quashed and the disciplinary authority has been directed to consider the matter afresh to grant any lesser punishment. The copy of the order of learned Single Judge passed in Writ Petition No.26996 of 1999 has been filed along with the amendment application. The appellant has been subjected for consideration of the compulsory retirement by the Screening Committee. The Screening Committee having regard to the material available on record has recommended for the compulsory retirement of the appellant. Thereafter, on the recommendation of the Screening Committee, District Judge, Bareilly in exercise of powers, vested in Fundamental Rules 56 (c) of the Financial Hand Book Volume-2, paras 2 to 4, compulsorily retired the appellant vide order dated 15.07.2005, which has been challenged by the appellant in Writ Petition No.54523 of 2005. Learned Single Judge while deciding the aforesaid writ petition observed as follows :

"In the present case factual position, which is emerging is to the effect that at all point of time work and conduct of petitioner has been found to be satisfactory/good except for the year 1993-94, while preparing A.C.R. of petitioner it has been mentioned that work is satisfactory but members of bar have complaints qua the functioning of petitioner. On 17.7.1995, charges of accepting bribe and demanding Rs.500/- has been found proved and petitioner has been declared unfit to work as Amin and requisite entry has been made in this regard on 29.7.1995 by District Judge, Bareilly, and thereafter pursuant to order of this Court, entries have been made, mentioning that Appeal of petitioner has been dismissed, and punishment shall operate for period of five years and not permanently. Only ground on which petitioner has been compulsory retired is that complaint was made against petitioner for accepting bribe of Rs.50/- as expenses and making demand of Rs.500/- in Suit No.14 of 1994 Badlu Khan and other Vs. District Cane Officer and others while working as Amin and said charges were found proved in enquiry and punishment was awarded to petitioner on 24.7.1995 and against the imposition of said punishment, statutory appeal had been preferred before the Administrative Judge of this Court and said finding has been affirmed and only punishment, which has been awarded, has been modified by mentioning stoppage of two increments for five years only. It is true that against the said order, Civil Misc. Writ Petition No.26996 of 1999 has been filed, but mere filing of writ petition would not wipe out the said action taken against petitioner, and counsel for the petitioner has placed heavy reliance on following decision namely Baidya Nath Mohapatra Vs. State of Orissa 1989 (4) SCC 664, R.S.Chauhan Vs. U.P.S.R.T.C. 1991 SCD 35 and Jayanta Prasad Vs. State of U.P. and another 1998 A.L.J. 239. The fact of the matter is that there is material on record, wherein District Judge, Bareilly on 17.7.1995/24.7.1995 has recorded finding against petitioner of accepting bribe of Rs.50/- and demanding Rs.500/- in Suit No.14 of 1994 while working as Amin. Said order has been affirmed in appeal also said finding is staring on the face of it. This Court will not re-appreciate the evidence, collaterally, qua the punishment which has been imposed upon petitioner, by scrutinizing the evidence of complainant.

It is true that higher pay scale has been accorded and petitioner has been promoted, but in terms of Fundamental Rule 56 (2) (a) entries even prior to crossing of efficiency bar or before he was promoted can be taken into consideration, by the authority concerned, while proceeding to exercise authority of compulsorily retirement. Here, Screening Committee has formed opinion, and in public interest District Judge, Ballia has exercised his discretion. Interference is permissible only in three contingencies (i) opinion formed is malafide (ii) decision is based on no evidence (iii) and same is arbitrary decision. Here District Judge, Bareilly in his wisdom constituted Screening Committee and thereafter on the report of the Screening Committee decision in question has been taken. This Court is not a court of Appeal and settled ground on which order in question could be assailed, are not at all available in the present case as here opinion has been formed on the material available and said decision could not be termed to be arbitrary. Single act of petitioner touches the integrity of petitioner, as he has been found guilty of accepting bribe of Rs.50/- and demanding Rs.500/- and same is sufficient to compulsorily retire the petitioner. District Judge, Bareilly has not taken any selective action against the petitioner rather on the basis of recommendation made by the Screening Committee, action has been taken. The action taken is not against any particular individual; as on the same day, thirteen other incumbents have also been compulsorily retired out of 117 incumbents who were serened and attempt has been made to clear the system. Once decision has been taken, which is objective decision, then no interference is warranted."

Learned counsel for the appellant submitted that the punishment of stoppage of two increments for five years has been set aside by the learned Single Judge in Writ Petition No.26996 of 1999 vide order dated 06.08.2013 and, therefore, the very basis for the compulsory retirement does not exist and the order of the compulsory retirement is liable to be set aside. He further submitted that till date no post retiral benefits have been paid to the appellant, which the appellant is legally entitled.

Sri Manish Goyal, learned counsel appearing on behalf of the respondents submitted that the decision for compulsory retirement has been taken on over all assessment and the conduct of the employee, having regard to the material available on record. He submitted that the learned Single Judge in its order dated 06.08.2013 has not set aside the charges against the appellant for taking Rs.50/- as expenses and Rs.500/- as bribe. Learned Single Judge, having regard to the fact that there was no other complaint against the appellant before the present complaint during his service, found that the punishment awarded was on little higher side and, therefore, directed the disciplinary authority to consider the matter afresh to grant any lesser punishment. He further submitted that the compulsory retirement is not a punishment and, therefore, the appellant is entitled for all post retiral benefits. In case, if the appellant could not get the post retiral benefits, a direction may be issued in this regard.

We have heard rival submissions and perused the record.

It would be useful to refer certain principles in respect of compulsory retirement, culled out by the Hon'ble Apex Court.

In Baikunth Nath Das and another vs. Chief District Medical Officer Baripada and another (1992) 2 SCC 299, the Apex Court has categorically held that the judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or malafide. The principle of natural justice has no place in the context of compulsory retirement. The Apex Court further held that any adverse entries in the confidential record shall be taken note and shall be given weight in passing such order even uncommunicated entries can also be taken into consideration.

In Shyam Lal Vs. State of U.P. and another AIR 1954 SC 369, it was held that an officer who has compulsory retired does not lose any part of the benefit that he has earned and is entitled for pension and other retiral benefits in accordance with Rules. There is no deprivation of the accrued benefits. Though from the point of view of the officer/employee concerned, he may think to have been punished for not being allowed to serve till he attains the age of superannuation prescribed under the Rules, but there is distinction between the loss of benefits already earned and loss of prospects to earn something more. It was held that since compulsory retirement under Fundamental Rule 56(c) is not a punishment when resorted to in public interest, Article 311 of the Constitution of India has no application.

In Posts and Telegraphs Board Vs. C.S.N. Murthy, (1992) 2 SCC 317, 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 point 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 bonafide and on the basis of material available on the record. " (para 5) (emphasis added).

In S. Ram Chandra Raju Vs. State of Orissa AIR 1995 SC 111 the Apex Court 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 the service. The dead wood need to be removed to augment efficiency. Integrity in public service need 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 that his continuance in service would be a menace in public service and injurious to public interest."

In Allahabad Bank Officers' Association & another Vs. Allahabad Bank and others (1996) 4 SCC 504, 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 service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration." (para-5)

In State of Orissa and others Vs. Ram Chandra Das (1996) 5 SCC 331, the Apex Court held:

" ........................It is needless to reiterate that the settled position is that the government is empowered and would be entitled to compulsorily 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." (para 3)

In M.S. Bindra Vs. Union of India and others, AIR 1998 SC 3058, the Hon'ble Apex Court held as under:

"judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide 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." (para 11)"

In State of Gujarat Vs. Umed Bhai M. Patel, AIR 2001 S.C. 1109 the Apex Court held:

"(i) When 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 is 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."

The above guidelines have been referred with affirmance recently in M.P. State Cooperative Dairy Federation Ltd. and another Vs. Rajnesh Kumar Jamindar and others, JT 2009(6) SC 263.

In Swaran Singh Chand Vs. Punjab State Electricity Board and others, JT 2009(8) SC 385 following Rajnesh Kumar Jamindar (supra) the Court further held that:

"Principles of natural justice are not required to be complied with and even adverse entries made in the confidential record including uncommunicated entries may be taken into consideration but the same should not be passed in place of or in lieu of a disciplinary proceedings. If an order of compulsory retirement is stigmatic in nature, the same would be bad in law."

In the recent decision in the case of Rajasthan State Road Transport Corporation and others vs. Babu Lal Jangir, the Apex Court held as follows :

"Having taken note of the correct principles which need to be applied, we can safely conclude that the order of the High Court based solely on the judgement in the case of Brij Mohan Singh Chopra was not correct. The High Court could not have set aside the order merely on the ground that service record pertaining to the period 1978-90 being old and stale could not be taken into consideration at all. As per the law laid down in the aforesaid judgements, it is clear that entire service record is relevant for deciding as to whether the government servant needs to be eased out prematurely. Of course, at the same time, subsequent record is also relevant, and immediate past record, preceding the date on which decision is to be taken would be of more value, qualitatively. What is to be examined is the "overall performance" on the basis of "entire service record" to come to the conclusion as to whether the concerned employee has become a deadwood and it is public interest to retire him compulsorily. The 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.

It hardly needs to be emphasized that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non application of mind, malafide, perverse, or arbitrary or if there is non-compliance of statutory duty by the statutory authority. Power to retire compulsorily, the government servant in terms of service rule is absolute, provided the authority concerned forms a bonafide opinion that compulsory retirement is in public interest.(See Posts and Telegraphs Board v. L.S.N. Murthy15)"

The decision of the compulsory retirement is to be taken on the basis of the over all assessment and the conduct of the employee. In the present case, it was found that the appellant has taken Rs.50/- and has also demanded Rs.500/- as bribe. An enquiry proceeding has been initiated against the appellant, wherein the charges were found proved and the appellant was awarded punishment of stoppage of two increments permanently, which has been reduced to five years by Hon'ble Administrative Judge. In the writ petition learned Single Judge has further found that the award of punishment of stoppage of two increments for five years is on higher side and directed the disciplinary authority to award lesser punishment but the fact remains that the charges, which stood proved, have not been set aside in the writ petition. Learned Single Judge also found that in the year 1993-94 it is recorded that although the work of the appellant is found satisfactory but the member of Bar have made complaint about the functioning of the appellant..

On the facts and circumstances, we are of the view that the decision taken by the District Judge, Bareilly that the appellant was not suitable to continue in the job, can not be said to be arbitrary and without any material. The view taken by the learned Single Judge confirming the decision of the District Judge, Bareilly on the facts and circumstances, is not erroneous and is, accordingly, upheld. It is settled law that the compulsory retirement is not a punishment. Therefore, we are of the view that the appellant is legally entitled for all post retiral benefits. In case, if the post retiral benefits have not been given to the appellant, same is not justified and we direct the authority concerned to pay all the post retiral benefits for which the appellant is legally entitled forthwith.

The appeal is accordingly, dismissed with the aforesaid direction.

Dt..21.07.2015.

R./