Anjul Kumar Srivastava vs State Of U.P. And Anr.
2018 Latest Caselaw 1336 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- WRIT - A No. - 3977 of 2015
 
Petitioner :- Anjul Kumar Srivastava
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Petitioner :- Tarun Verma, Anand Verma
 
Counsel for Respondent :- C.S.C.,Manish Goyal,Samar Verma,Sameer Sharma
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard learned counsel for the petitioner and Sri Sameer Sharma for the second respondent.

The petitioner has challenged the order of his compulsory retirement from service dated 18.9.2014 passed by the District Judge, Gorakhpur, the second respondent herein. The petitioner was appointed as Copyist in judgeship of Gorakhpur on 2.5.1988. On 5/6 July 2013, he was transferred from the Record Room to the Court of Civil Judge (Junior Division) Court No. 19, Gorakhpur as Munsarim/Reader.

A meeting of the Screening Committee constituted under the order of the District Judge, Gorakhpur for screening the employees of the judgeship of Gorakhpur, for purpose of making recommendation for compulsory retirement, was held on 10.9.2014. The said Committee examined the service records of 99 class III employees of the judgeship who had completed 20 years of service and 50 years of age. It submitted a report dated 10.9.2014 recommending compulsory retirement of five employees, including the petitioner herein. It was followed by an order dated 18.9.2014 by District Judge, Gorakhpur compulsorily retiring the petitioner.

Counsel for the petitioner submitted that the power of compulsory retirement has been exercised in a malafide manner without there being sufficient material; that order has been passed arbitrarily and without application of mind; that the petitioner was made to handle more than 5000 files without there being any proper staff to assist him or sufficient provision for keeping the files and thus it was failure of system for which the petitioner could not be held responsible and in this regard reliance has been placed on a judgement of the Delhi High Court dated 25.8.2014 in Writ Petition (C) No. 574/2013 Manju Khanna vs. The Registrar General, Delhi High Court; that only one major penalty has been inflicted upon the petitioner so far, whereas according to the criteria fixed by the Screening Committee itself, there should have been two major punishments for recommending compulsory retirement.

Per contra, Sri Sameer Sharma, learned counsel appearing on behalf of the second respondent submitted that the order of compulsory retirement is neither punitive nor stigmatic and being based on subjective satisfaction of the authority, the scope of judicial review is very limited. In support of said contention, he has placed reliance on a judgement of the Supreme Court in Rajasthan State Road Transport Corporation and others vs Babu Lal Jangir (2013) 10 SCC 551. He further submitted that since the order is based on subjective satisfaction and therefore, principles of natural justice has no role in the exercise undertaken for passing an order of compulsory retirement. It is further submitted that the judgement of the Delhi High Court in case of Manju Khanna (supra) is not attracted to the facts of the instant case and is clearly distinguishable. The Screening Committee took into consideration the entire service record of the petitioner and thereafter recommended for compulsory retirement. The second respondent, before passing the impugned order, not only took into consideration the recommendation made by the Screening Committee but also the other relevant material and thus there is no illegality in the order.

Before proceeding to examine the rival contentions, it would be advantageous to refer to the decisions of the Supreme Court enunciating the principles governing passing of an order of compulsory retirement. In Baikunth Nath Das vs. District Medical Officer, (1992) 2 SCC 299, the Supreme Court authoritatively laid down the principles on which a government servant can be ordered to be compulsorily retired, as follows :-

"34. 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 a 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 interference.

Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above."

Again, in State of Gujarat vs. Umedbhai M. Patel (2001) 3 SCC 314, the following principles have been laid down :-

"11. The law relating to compulsory retirement has now crystallised 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."

It is now well settled that the formation of opinion for compulsory retirement is based on subjective satisfaction of the authority concerned. Principles of natural justice have no role in the context of passing of an order of compulsory retirement. Nonetheless, an order of compulsory retirement is not beyond pale of judicial review. The court is empowered to interfere with an order of compulsory retirement, if it is satisfied that the order is passed malafide or it is based on no evidence or it is arbitrary, in the sense that no reasonable person would form the requisite opinion on the given material. The court can also interfere if certain relevant material has been ignored from consideration while forming opinion for compulsory retirement.

A perusal of the report of the Screening Committee reveals that having regard to the provisions of Fundamental Rule 56 and government orders issued on the subject from time to time, it laid down the following norms for screening the employees and for making recommendation :-

(i)     consideration of confidential remarks of last ten years;
 
(ii)    one  major  punishment, awarded to the employee within this period of 10 years and minor punishments, would not be sufficient  for recommending compulsory retirement;
 

(iii) in case of more than one major punishment awarded to an employee within this period of 10 years, if the gap between two major punishments is five years or more, this would also not be a basis for recommending compulsory retirement;

(iv) the health of the employee would also be a factor for consideration.

The Screening Committee, having regard to the above norms, found the following adverse material against the petitioner :-

"2004-05

Warned for future vide order of District Judge dated 6.1.2005 for dereliction of duty.

2012-13

Final inquiry No.32/2009. Four annual increments permanently stopped vide order of District Judge dated 11.12.12 holding guilty for loss of record of O.S. No. 119/1971.

2013-14

1. Departmental inquiry No.04/14. Reverted at the lowest in the seniority list of senior assistants in same scale 5200-20200 Grade Pay 2800 at lowest pay with stopping all future increments vide order of District Judge dated 21.05.14 holding guilty for loss of record of Suit No. 1654/89.

2. Departmental inquiry No.03/14. Demoted to grade pay of 2000 in pay band 5200-20200 from Grade Pay 2800 in same pay band for misconduct.

3. Final inquiry No. 15/2013. Two annual increments permanently stopped vide order of District Judge dated 24.07.14 holding guilty for loss of record of O.S. No. 610/1993."

After receiving recommendation from the Screening Committee the second respondent not only considered its recommendation, but independently, once again examined the entire service record of the petitioner and found the following material adverse to the petitioner :-

1. Censure entry dated 28.9.1998 condemning the act of the petitioner in retaining records of 32 original suits, 5 misc. cases and 1 execution case, despite transfer of these cases to some other court.

2. Warning issued by District Judge on 5.4.1999 having been found guilty of not producing the relevant records which had been requisitioned.

3. Order dated 29.9.1999 by District Judge issuing warning to the petitioner being found guilty of making wrong entries in the list of cases which were to be transferred.

4. Adverse entry dated 3.5.2003 by District Judge, Gorakhpur on petitioner found guilty of not maintaining the record properly resulting in various papers going missing and certain other papers getting torn.

5. Adverse entry dated 29.1.2004 by District Judge while the petitioner was working as Assistant Record Keeper.

6. Adverse entry dated 6.1.2005 by the District Judge, Gorakhpur issuing warning to the petitioner.

7. Punishment order dated 11.12.2012 holding the petitioner guilty of deliberately misplacing/concealing the record of departmental enquiry no. 32 of 2009 resulting in withholding of four annual increments on permanent basis.

8. Punishment order dated 21.5.2014 reverting the petitioner to the minimum of the pay scale and withholding future increments.

9. Punishment order dated 5.6.2014 in enquiry no. 3 of 2014 reverting the petitioner to the lower pay scale with grade pay of Rs.2000/-.

10. Punishment order in enquiry no. 15 of 2013 withholding two annual increment on permanent basis on being found guilty of misplacing Commissioner report and map from the record of Original Suit No.610 of 1998.

Apart from above, the District Judge while passing the impugned order also took note of the fact that on 5.9.2014 as many as 288 original records were recovered from the petitioner, which he had unauthorisedly retained with him. Likewise, on 11.9.2014 as many as 243 more files were recovered from his possession which also he was not supposed to keep with him.

On the basis of above material, the District Judge formed an opinion that it would not be in public interest to permit the petitioner to continue in service and accordingly directed for his compulsory retirement. He also directed that in lieu of three months notice, it would be in public interest to pay him salary for said period. The order has been passed in purported exercise of power under Fundamental Rule 56 Part II of Financial Hand Book read with Rule 25 of the U.P. State District Court Rules, 2013. (hereinafter, for short 'the Rules'). Rule 25 is based on same principles as the relevant part of Fundamental Rule 56 relating to compulsory retirement and it reads thus :-

"25. Retirement in public interest.-- Notwithstanding anything contained in these rules or any other law the appointing authority may, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any member of the service who has put in nor less than twenty five years of service or has attained the age of 50 years, by giving him notice of not less than three months in writing or three months pay and allowance in lieu of such notice."

It is not in dispute that the petitioner, on the date of passing of the impugned order, had completed 50 years of age and 25 years of service and thus, could have been compulsorily retired. It is also not in dispute that the second respondent, while passing the impugned order has taken into consideration the entire service record of the petitioner in forming the opinion that he should be compulsorily retired. Concededly, the adverse material referred by the second respondent in the impugned order is not in the nature of few isolated adverse entries. On the contrary, the service record of the petitioner was found to be full of blemish, replete with adverse entries, punishment orders, four amongst which, mentioned at sl. no. 7, 8, 9 and 10 above, are major punishments. Having regard to the above conspectus, this Court has no hesitation in upholding the formation of opinion regarding compulsory retirement of the petitioner by the second respondent.

The judgement of the Delhi High Court in case of Manju Khanna (supra) was given in an entirely different context, while adjudging validity of a punishment order passed against a Court Master reverting her to substantive post of senior judicial assistant on the charge of having misplaced record of certain criminal cases. The Court, while setting aside the order of punishment, took note of study report of a Committee comprising of three judges of that Court acknowledging that there was acute shortage of space in the court premises for keeping the records as also shortage of staff. The order also takes note of an order issued by the Chief Justice of Delhi High Court directing that a dealing seat should not have more than 500 files. The explanation submitted by the delinquent employee that she was over burdened as she was dealing with more than 4500 cases, was found acceptable and it was held that it was not the case of willful negligence or lack of bonafides on part of delinquent but failure of the system and accordingly the order of punishment was set aside. In the instant case, the petitioner was given several adverse entries and was even punished for not only misplacing the files but for doing so deliberately and consciously. The impugned order of the second respondent also take note of the fact that apart from adverse entries and orders of major punishment, as many as 280 original records were recovered from the custody of the petitioner on 5.9.2014, which he had unauthorizedly retained with him. Likewise, on 11.9.2014, 243 more files were recovered from his possession, which he was also not supposed to keep with him. That apart, in the instant matter, the punishment orders are not under challenge, as was before the Delhi High Court. Concededly, the orders inflicting punishment upon the petitioner have attained finality long back. For all these reasons, this Court is of the considered opinion that the judgement of the Delhi High Court, on which reliance has been placed, would be of no avail to the petitioner.

As noted above, it was also urged that there was only one order of major punishment against the petitioner, consequently, as per norms fixed by the Screening Committee, the recommendation made by it, was contrary to it's own norms. The argument is devoid of any merit. Rule 23 of the Services Rules enumerates minor and major punishments, which could be imposed, as under :-

23(1) Penalties. - One or more of the following penalties for good and sufficient reasons may be imposed on a member of the Service, namely;

Minor Penalties:-

(i) censure;

(ii) withholding of increment for a specified period;

(iii) Stoppage of an efficiency bar;

(iv) recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders, to the Government or the High Court;

(v) Fine in case of persons holding Group 'D' posts:

Provided that the amount of such fine shall in no case exceed twenty five percent of the month's pay in which the fine is imposed.

Major Penalties

(i) Withholding of increments with cumulative effect;

(ii) Reduction to a lower post or grade or time scale or to a lower stage in time scale;

(iii) Removal from service which does not disqualify from future employment.

(iv) Dismissal from the service which disqualifies from future employment."

As per the same, the punishments, mentioned at sl. no. 7, 8, 9 and 10 would all fall within the definition of major punishment. The punishment orders are not separated by a gap of five years or more. Consequently, as per norms fixed by the Committee, these punishment orders could also not be ignored. That apart, the second respondents while considering the recommendation of the Screening Committee, also applied his own independent mind to the entire service record and even certain other material which had significant relevance in considering the issue of compulsory retirement. This Court does not find any reason to take exception to the view taken by the second respondent in directing compulsory retirement of the petitioner.

The petition lacks merit and is dismissed.

 
Order Date :- 3.7.2018
 
skv                                                         (Manoj Kumar Gupta, J.)