Gorakh Rai vs P.K. Sharma, Commandant 9Th ...
2015 Latest Caselaw 2919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 
Court No. - 59
 

 
Case :- WRIT - A No. - 45921 of 1993
 

 
Petitioner :- Gorakh Rai
 
Respondent :- P.K. Sharma, Commandant 9th Battalion C.R.P.F. And 2 Others
 
Counsel for Petitioner :- P.K. Sharma,D.K. Singh,G.K.Singh,Jitendra Kumar,P.K. Singh,S.R. Singh,V.K.Singh
 
Counsel for Respondent :- Siddharth Singh,Ashok Singh,S.C.
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard learned counsel for the petitioner and Sri Ashok Singh, learned counsel appearing for the respondents.

2. By means of the present petition the petitioner is challenging the order dated 21.6.1993 whereby he has been compulsorily retired from service.

3. The petitioner was working as Hawaldar in 9th Bn. Chandigarh of Central Reserve Police Force (hereinafter referred as C.R.P.F.). The petitioner was appointed in the year 1968 at Dibroogarh, Assam in C.R.P.F. He was posted at various places during service and at the time of passing of the order impugned herein he was posted in 9th Bn. C.R.P.F. Chandigarh. He was compulsorily retired after completion of 25 years of net qualifying service on 7.5.1993 on the ground that it was found that he is not fit for retention in government service further and in public interest it was recommended to retire the petitioner from service prematurely. This decision was taken in the meeting of Administrative Review Committee of Northern Sector, C.R.P.F., New Delhi on 7.5.1993. Consequently, in exercise of powers under Rule 56 (j) of the Fundamental Rights read with Rule 43 (c) (i) of the C.R.P.F. Rules, 1955 the Commandant of 9th Bn. passed the order impugned herein that the petitioner shall be paid a sum equivalent to the amount of his pay plus usual allowances for a period of three months at the same rate at which he was drawing then immediately before his retirement.

4. Present petition has been filed on the ground that the length of 25 years of service as permanent employee of the petitioner was not considered by the opposite party and the petitioner was compulsorily retired on wrong facts without taking into consideration the service record of the petitioner and the order impugned was passed without affording any opportunity of hearing to the petitioner as such the same is violative of Article 14, 16, 19 and 21 of the Constitution of India. It has also been stated that the service record of the petitioner was excellent and there was no public interest involved in the present case so as to warrant premature retirement of the petitioner. As such, it is claimed that the petitioner should be retired after completion of 55 years of age.

5. A counter affidavit has been filed by the petitioner. Relevant paragraphs 5, 6, 8, 10 and 11 of the counter affidavit are quoted as under:-

"5. That the contents of paragraph no. 3 of the writ petition as stated are not correct. It is stated that as per Rules every member of the CRPF becomes due for superannuation retirement on attaining the age of superannuation but as per instructions contained in Govt. of India Ministry of Home Affairs office Memorandum no. 25013/14/77-Estt (A dated 5.1.1978 published in Appendix- 10 of C.C.S. (Pension) Rules 1972, the case of every Govt. servant is to be reviewed six months before attaining the age of 60 years or completing 25 years of qualifying service whichever is earlier. The Adm. Review Committee headed by the Head of the Department decided as to whether the particular person is fit to be retained in service till attaining the age of superannuation or otherwise. The committee take decision basing on the records of service and pass final orders. Likewise petitioners case was initiated and the Committee after considering his entire records of service did not consider him fit for retention in service till attaining the age of superannuation. Therefore, he was retired prematurely. Hence the orders passed by the competent authority for premature retirement of Ex-HC Gorakh Rai are valid and within existing rules. It is false to suggest that petitioner case was referred for compulsory retirement for same ulterior motives.

6. That in reply to the contents of paragraph no. 4 of the writ petition it is stated Administrative Review Committee of Northern Sector CRPF New Delhi after considering the service records of the petitioner found that he is not fit for retention in government service, thus petitioner was retired. It is further stated that there is no provision to give show cause notice to the petitioner. As no penalty or punishment has been imposed on petitioner.

8. That in reply to the contents of paragraph no. 6 of the writ petition it is stated that as per FR-56(j) it is clearly mentioned that the appropriate authority if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any govt. servant by giving him notice of not less then 3 months in writing or three months pay and allowances in place of such notice. Therefore, action taken by the competent authority is very much within rules. It is further stated that order is legal and just as per FR 56 (j) and 43 (c) (I) of C.R.P.F. Rules 1955.

10. That the contents of paragraph no. 8 of the writ petition are argumentative in nature and shall suitably be replied at the time of hearing. However it is stated that order impugned in the present writ petition is neither punitive in nature nor it is violative of article 31 (2) of the constitution of India. It may further be stated petitioner is not temporary employee and he has been prematurely retired as the decision of Adm. Review Committee and impugned order is not a termination.

11. That the contents of paragraph no. 8 (repition) of the writ petition as stated are not correct. It is stated that Administrative Review Committee after considering the entire record of the petitioner (including good remarks and adverse entries) have come to the conclusion that petitioner is not fit to be retained in service. It is further stated that he has been awarded 5 punishments as per details given below which speaks about his records of service thus keeping in view his bad records the decision for his premature retirement has been taken by the Adm. Review Committee.

i) U/s 11 (2) of CRPF Act-1949 he stayed 3 days enroute without permission in that he started from G.C. I, CRPF, Ajmer on 8.5.1970 and reported on 13.5.1970. Awarded 3 days quarter Guard with forfeiture of pay and allowances.

ii) U/s 11(3) of C.R.P.F. Act-1949 an offence against discipline in that he whilst on seatry duty was improperly dressed and sitting down with rifle kept a side. On asking by the platoon Commander he replied in an insolent manner words to the effect "Jaisa Hoo theek Hoo" also on 12.2.1972, 13.2.1972, and 14.2.72 he did not attend parade without sufficient reason or permission of platton Commander. Awarded 7 days confinement to quarter Guard with forfeiture of all pay and allowances with punishment drill 2 periods in a day w.e.f. 1.3.1972 to 7.3.1972.

iii) U/s 11(3) of C.R.P.F. Act 1949 a petty act of indiscipline in that while he was writing paper of III RH Ganit paper on 19.5.1976 (AN) Session he sent his blank anser book out side of the Examination hall to get the Ganit paper solveo, written by no. 640090149 LNK Prit Bahadur and then submitted the answer book to the invigilator. Awarded 7 days punishment drill with equipments.

iv) As a result of DE held against him u/s 11(1) of CRPF At 1949 read with Rule 27 of CRPF Rules 1955 he was awarded 10 days confinement to quarter guard with forfeiture of pay and allowances w.e.f. 31.1.1979 to 9.2.1978.

v) Misbehaved with seniors. Awarded warning on 21.7.1987."

6. The submission of learned counsel for the petitioner is that the petitioner was allowed to cross efficiency bar; he was promoted from Lance Nayak to Hawaldar in the year 1984; for last 5 years prior to passing of the impugned order no adverse entry was given to the petitioner; no opportunity of hearing before passing the impugned order was given to the petitioner; there was no adverse entry against the petitioner for last 16 years; and that the order of punishments awarded to the petitioner cannot be taken into account as he was allowed to cross efficiency bar as well as he had been promoted in the year 1984.

7. In support of his argument learned counsel for the petitioner has placed reliance on a decision of Hon'ble Apex Court in the case of Preetam Singh Vs. Union of India and others, 2005 (9) SCC 748. In paragraph 20 of the aforesaid judgment the Hon'ble Apex Court held that in the instant case no materials on record was placed before the disciplinary authority, appellate authority, revisional authority, Tribunal and before the High Court to reasonably form an opinion that compulsorily retirement as in public interest. Relevant paragraph 20 of the aforesaid judgment is quoted as under:-

"20. In the instant case, no material on record was placed before the disciplinary authority, appellate authority, revisional authority, Tribunal and before the High Court to reasonably form an opinion that compulsory retirement was in public interest. The case on hand is also not a case of doubtful integrity. The impugned action of compulsorily retiring the appellant from service can be termed as arbitrary in the sense that no reasonable person could have come to the conclusion that the appellant had outlived his utility as a member of railway service and had become a deadwood which had to be chopped off."

8. He has further placed reliance on a decision of Hon'ble Apex Court in the case of State of Gujarat VS. Umedbhai M Patel, 2001 (3) SCC 314. Referring to paragraph 12 of the aforesaid judgment learned counsel for the petitioner submitted that in the present case also the petitioner was permitted to cross the efficiency bar and he was no adverse entry in the respondents confidential record. As such the order impugned herein is liable to set aside.

9. He further placed reliance on a decision of Hon'ble Apex Court in the case of R.K. Panjetha Vs. Haryana Vidyut Prasaran Nigam Limited, 2002 (10) SCC 590 to contend that the order of retiring the petitioner is stigmatic in nature and therefore cannot be sustained.

10. Per contra learned counsel for the respondents while supporting the impugned order submitted that it is within the absolute right of competent authority to retire a government servant in public interest; not only last 5 years record but entire service record of a government servant is to be taken into account including adverse entries, which has been done in the present case by the Administrative Review Committee to satisfy itself; the petitioner had undisputedly been awarded punishment on several occasions and he has never received even "good" remark during his entire carrier; and that since compulsory retirement is neither punitive nor stigmatic hence in the facts and circumstances of the case no interference is warranted by this Court in the order impugned herein.

11. Learned counsel for the respondents has placed reliance on a judgment of Hon'ble Apex Court in the case of Union of India Vs. Col. J. N. Sinha and another, 1970 (2) SCC 458, wherein powers of the authority under Rule 56 (j) was considered and it was held that the appropriate authority has absolute right to retire the government servant. Paragraph 9 of the aforesaid judgment is quoted as under:-

"9. Now coming to the express words of Fundamental Rule 56(j), it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule.' one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Art. - 310 of the Constitution. Various considerations may weigh with, the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. 'While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest."

(emphasis supplied)

12. He has further placed reliance on a judgment of Hon'ble Single Judge of this Court passed on 8.7.2008 in Writ Petition No. 36044 of 2002 (Yogendra Nath Tripathi Vs. Inspector General, CISF and others), 2008 (6) ALJ 57. Relevant paragraphs of the aforesaid judgment is quoted as under:-

"In view of the aforesaid decisions, it is clear that the Fundamental Rules confer an absolute right to retire an employee on the happening of certain events, namely, that the employee attains the age of 50 years. Further, the Courts have no authority or jurisdiction to interfere with the exercise of powers if it is arrived at bonafidely on the basis of the material available on the record. Further, premature retirement is required to be made in public interest in the case where the Government servant has outlived his utility or has become a dead wood. The conduct and the performance of the Government servant is reflected in his service record which forms the basis of consideration in public interest in the matter of premature retirement.

In the present case, the entire service record has been taken into consideration by the authorities, including the adverse entries. Consequently, the submission of the learned counsel for the petitioner that the adverse entries lost its sting, and could not be taken into consideration when he was promoted after issuance of these censure entries, is patently erroneous. The Supreme Court in the case of Baikuntha Nath Das (Supra) and in the case of State of Uttar Pradesh Vs. Vijay Kumar Jain (Supra) has clearly stated that the entire service is required to be taken into consideration and that the vigour or sting of an adverse entry is not wiped out on the ground of lapse of time. The contention of the learned counsel for the petitioner that the adverse entries was for a limited period which came to an end upon its expiry and could not be considered while taking action under Rule 56 (j) of the Fundamental Rules is patently erroneous. The respondents have categorically submitted in their counter affidavit that the entire service record was taken into consideration and it was found that the petitioner was not found fit for further retention in service in public interest on the basis of his poor service record. This fact has not been denied by the petitioner in his rejoinder affidavit and the only ground urged is that no prudent man could form an opinion of not finding the petitioner fit for service on the material available on the service record of the petitioner.

In my opinion, since the petitioner has not denied the fact that the entire service record of the petitioner was not considered and only the adverse entries was considered, consequently, the Court is not inclined to go into a roving and fishing enquiry and it would be sufficient for this Court to hold that the order was passed by the authority on forming an opinion that it was in public interest to retire the petitioner prematurely and that the said order was passed on the subjective satisfaction of the authority.

In view of the aforesaid, this Court is not inclined to interfere with the impugned order whereby the petitioner has been prematurely retired under clause (j) of Rule 56 of the Fundamental Rules."

13. A reference may also be made to Rule 56 (j) of the Fundamental Rules, which is quoted as under:-

"(j) Notwithstanding anything contained in the rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice."

14. Rule 43 (c) (i) of C.R.P.F. Rules, 1955 is also quoted as under:-

"the appointing authority shall, if it is of opinion that it is in the public interest to do so, have absolute right to retire any member of the Force who has attained the age of 50 years or put in 25 years of qualifying service, by giving him notice of not less than three months in writing or three months pay and allowance in lieu of such notice,"

15. A reference may also be made to a latest judgment of Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation and others Vs. Babu Lal Jangir, 2013 (10) SCC 551. Paragraph 24 and 27 of the aforesaid judgment is quoted as under:-

"24. 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 judgment 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 judgments, 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."

27. 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."

(emphasis supplied)

16. In pursuance of the order dated 20.7.2015 original records of the petitioner was placed before this Court. A perusal of the service record indicates that the petitioner was awarded punishment as narrated in paragraph 11 of the counter affidavit and his services was throughout remarked as "satisfactory" and he was never awarded even remark "good".

17. It is a settled law that the appropriate authority has the absolute power to retire a government servant if it is in the public interest to do so. The Hon'ble Apex Court held that the right conferred on the appropriate authority is an absolute one. There is no requirement of giving any show cause notice or opportunity of hearing in such matters. It is the satisfaction of the Administrative Review Committee in the present that the services of the petitioner are no longer required in public interest and he should not continue in public interest.

18. A perusal of the observations made by the Hon'ble Apex Court in the case of Union of India Vs. Col. J.N. Sinha (supra) and in the case of Rajsthan State Road Transport Corporation and others Vs. Babu Lal Jangir (supra) it is the overall performance on the basis of entire service record is to be seen by the authority concerned and 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 is a settled law that the order of compulsory retirement is neither punitive nor stigmatic and if is based on subjective satisfaction of the employer a very limited scope of judicial review is available in such cases.

19.	From a perusal of record I do not find that exercise of powers by the Administrative Review Committee suffers for                 non-application of mind or was malafide, perverse or arbitrary or was in violation of any statutory duty. In such view of the matter, I am not inclined to interfere with the order impugned herein.
 
20.	The petition lacks merit and is accordingly dismissed.
 
Order Date :- 6.10.2015
 
Lalit Shukla