Ajay Kumar Mishra vs State Of U.P. And 2 Others
2018 Latest Caselaw 3693 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									         AFR
 

 
Court No. - 6
 
Case :- WRIT - A No. - 53519 of 2017
 
Petitioner :- Ajay Kumar Mishra
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Mritunjay Mohan Sahai
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Yashwant Varma,J.

Heard learned counsel for the petitioner and the learned Standing Counsel.

This petition calls in question an order dated 30 August 2017 in terms of which the petitioner has been compulsorily retired by the respondents invoking the powers conferred by Fundamental Rule 56 (c) of the Fundamental Rules as applicable in the State of U.P. The process for screening of employees of the Excise Department including the petitioner who was working as an Excise Inspector admittedly commenced pursuant to a report drawn up by the concerned Department which was transmitted to the State Government under the cover of a letter of the Excise Commissioner dated 6 August 2017. Appended to this letter was a broadsheet encapsulating the service record of the petitioner. The tabular chart which was appended with this communication dated 6 August 2017 insofar as it relates to the petitioner read thus:

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It appears that pursuant to receipt of the relevant record, a Screening Committee was formed at the level of the State Government which met on 11 August 2017. In this meeting the Screening Committee framed its recommendation for the compulsorily retirement of four officers including the petitioner. The record further indicates that the report of the Screening Committee was thereafter finally considered and approved on the note-sheet of 21 August 2017 by the Minister In-charge of the Excise Department on 24 August 2017. The impugned order thereafter came to be passed on 30 August 2017. Since the terms of the order impugned would have some significance, the Court deems it appropriate to extract it herein below:

"आबकारी आयुक्त के पत्र संख्या -1318 / पी. एस./विविध/स्क्रीनिंग/2017, दिनांक 6.08.2017 के सन्दर्भ में वित्तीय नियम संग्रह, खंड-2 , भाग-2 से 4 तक में दिए गए अद्यावधिक संशोधन फंडामेंटल रूल्स 56 के खंड (सी) के अधिकारों का प्रयोग करके श्री राज्यपाल ने लोक हित में, आदेश दिया है की श्री अजय कुमार मिश्रा, सहायक आबकारी आयुक्त, एस.एस.एफ, ए. बरेली प्रभार इस आदेश के जारी होने के दिनांक के अपरान्त से अनिवार्य सेवानिवृत्त हो जाएंगे तथा 03 माह की अवधि के लिए यह उसी दर पर अपने वेतन और भत्ते, यदि कोई हों, की धनराशि के बराबर धन के दावेदार होने के हक़दार होंगे, जिस पद पर वह अपनी सेवानिवृत्ति से ठीक पूर्व पा रहे थे ।"

Sri Sahai, learned counsel for the petitioner drawing the attention of the Court to the broadsheet which accompanied the communication of the Excise Commissioner dated 6 August 2017 explained the adverse entries of which reference is made therein in the following manner.

According to Sri Sahai, the existence of an adverse entry in the year 2012-13 is not disputed. Insofar as the adverse entry dated 11 September 2014 is concerned Sri Sahai submits that admittedly this adverse entry stood quashed in terms of the judgment rendered by the Public Services Tribunal on 7 July 2015. Turning to the adverse entry dated 9 June 2015, Sri Sahai has placed reliance on the interim order passed in a pending application before the Tribunal in terms of which the said entry was stayed. Insofar as the entries dated 15 September 2016, 14 February 2017 and 22 February 2017 are concerned, Sri Sahai has referred the Court to the disclosures made in the rejoinder affidavit to submit that the validity of these entries form subject matter of challenge in Claim Petition Nos. 442 of 2018 and 702 of 2018.

Referring to the entries with respect to the character and the work output of the petitioner, Sri Sahai would submit that the order of compulsory retirement is clearly arbitrary and suffers from a complete and evident non application of mind since his integrity had been certified throughout and he was the recipient of "good" and "very good" entries in respect of his general work and conduct.

Sri Sahai has further submitted that as is evident from the broadsheet of 6 August 2017 as well as the report of the Screening Committee dated 11 August 2017, it is manifestly clear that no reasons have been recorded by the respondents as to why it was not in public interest to continue the petitioner in service. According to Sri Sahai, the recommendation is devoid of any reasoning or any material recital, which may even remotely evidence an application of mind to the various factors, which must govern the exercise of powers under Fundamental Rule 56.

According to Sri Sahai, the impugned order suffers from a more fundamental flaw since the same evidently proceeds solely on the basis of the communication of the District Magistrate dated 6 August 2017. Sri Sahai has sought to underline the fact that the impugned order makes no reference whatsoever either to the report of the Screening Committee dated 11 August 2017 or to any other material which may have been the repository of the formation of an opinion by the respondents that the continuance of the petitioner was not in public interest. Elaborating on his submissions, Sri Sahai reverting to the report of the Screening Committee submitted that even the Committee did not record any reasons as to why the petitioner had been rendered "dead wood" and that consequently it would no longer be expedient for him to continue in service.

The learned Standing Counsel on the other hand has sought to support the order impugned by submitting that the record of the State clearly establishes that the service record of the petitioner was duly perused and it was only thereafter that the competent authority formed an opinion that the petitioner was liable to be compulsorily retired. The learned Standing Counsel has in this context also referred to the communication of the District Magistrate dated 6 August 2017, the report of the Screening Committee dated 11 August 2017 as well as the note-sheet of 21 August 2017.

On a pointed query of the Court whether the impugned order did refer to or was based upon the report of the Screening Committee dated 11 August 2017 or the note-sheet dated 21 August 2017, it may be only noted that the learned Standing Counsel was unable to draw the attention of the Court to any recital in the impugned order which may have evidenced these reports and note-sheets having been taken into consideration nor could he refer the Court to any other contemporaneous material which may have established that these materials formed the bedrock of the order impugned. The submission advanced in support of the challenge to the impugned order, however, need not rest upon a failure on the part of the State respondents to explain the above. This Court consequently proceeds to independently evaluate whether the order impugned can be said to have been passed with due application of mind.

The basic principles on which an order of compulsorily retirement is liable to be judicially reviewed are no longer res integra. While it is true that the power to compulsorily retire is based on the subjective satisfaction of the employer, it is equally trite to note that this subjective satisfaction must be formed and based upon an objective consideration of the entire service record of the employee concerned. The crucial fault in the exercise of power in the facts of the present case is evident however, from the following.

The communication of the Excise Commissioner dated 6 August 2017 did not embody any recommendation for the compulsory retirement of the petitioner. As has been noted hereinabove, and as is also evident from the broadsheet extracted, all that was done by the respondents was to capture the entire service record of the petitioner in tabular form. Although this broadsheet is countersigned by as many as seven officers of the Department, it carries no endorsement of any authority recommending the compulsory retirement of the petitioner. As is further evident from the contents of the communication itself this missive was only aimed at forwarding the entire service record of as many as 105 officers of the Excise Department.

The Screening Committee met on 11 August 2017. The report of this Committee which stands appended at page 55-59 of the paper book establishes that the Committee purports to have perused the service record of 105 officers and thereafter formulated its recommendation in the following terms:

"3 . उक्त सूची के 01 अपर आबकारी आयुक्त, 06 संयुक्त आबकारी आयुक्त, 01 संयुक्त निदेशक (सांख्यिकी) , 02 प्राविधिक अधिकारी, 03 सहायक अल्कोहल टेक्नलॉजिस्ट, 29 उप आबकारी आयुक्त एवं 63 सहायक आबकारी आयुक्त में से क्रमांक -14 पर अंकित श्री अनिल कुमार श्रीवास्तव एवं क्रमांक-48 पर अंकित श्री चंद्रकांत सिंह से सम्बंधित वार्षिक प्रविष्टियां एवं संगत अभिलेखों के पूर्ण न होने के कारण इनके प्रकरण आस्थगित रखते हुए वार्षिक प्रविष्टियों एवं संगत अभिलेखों के आधार पर स्क्रीनिंग कमेटी द्वारा शेष अधिकारीगण में से निम्नलिखित अधिकारियों को अनिवार्य सेवानिवृत्ति हेतु उपयुक्त पाया गया ।"

Apart from the formulation of the recommendation in terms extracted hereinabove, the report as produced does not bear evidence, of the recordal of reasons, rudimentary or otherwise, in support of the formation of the opinion to compulsorily retire the petitioner. The same is the case with the note-sheet of 21 August 2017 which merely presented the minutes of the meeting of the Screening Committee for the consideration of the Secretary and the Minister of the Department. The endorsement made by these authorities is also bereft of any recital which may indicate or establish the reasons which weighed with the authorities and ultimately led them to form the opinion that the petitioner was liable to be compulsorily retired.

More fundamentally and as was rightly urged by Sri Sahai, the order impugned does not even refer to this report of the Screening Committee dated 11 August 2017. It rests solely on the communication of the District Magistrate dated 6 August 2017.

While it is true that an order of compulsory retirement is not a punishment, bearing in mind the consequences which imperatively flow therefrom this Court is of the considered view that the action of the respondents must meet the following fundamental safeguards.

Firstly the record must reflect that the service record of the concerned employee is duly considered and assessed in its entirety. While the order itself need not allude to the entire record, at least the contemporaneous record must establish this. Secondly, the exercise of power would not stand validated by a mere incantation of public interest or the language employed in Fundamental Rule 56. The record must embody and reflect the recordal of reasons which weighed with the authority in arriving at the conclusion that the continuance of the employee was no longer in public interest. The formation of opinion is after all presumed to be the culmination of due application of mind to the service record, the adverse material if any and the suitability of the employee to be continued in service. In the absence of reasons which may reflect a due consideration of the relevant factors, the Court is left with no means to assess whether the authority conferred due consideration upon the germane factors which must guide and control the exercise of this power. Reasons, undisputedly, form the crucial and indelible link to the formation of opinion. In their absence, the Court is left powerless to assess the validity of the action. Shorn of reasons, the exercise of power is left to hinge solely on the mere ipse dixit of the authority. Therefore it must be held, as this Court does, that when a challenge is raised to an order of compulsory retirement and a Court is called upon to judicially review the same, it is incumbent upon the authority to establish that there was due deliberation upon all relevant factors leading up to the formation of opinion.

This is also the appropriate stage in the proceedings to insert a caveat. While the Court has come to the conclusion that reasons leading up to the formation of opinion are liable to be recorded, this is not intended to suggest that the authority is obliged or legally mandated to record detailed reasons in support of its ultimate conclusion. The requirement of recording reasons as held by this Court is not to be misunderstood as an obligation upon the authority to draw out an elaborate or detailed note explaining the reasons underlying the formation of opinion. But a recordal, howsoever rudimentary and brief, must exist. This Court principally proposes that the record must reflect due application of mind by the authority leading up to the formation of an opinion that it is expedient to compulsorily retire the employee concerned. In order to meet the test as articulated above, the record must speak for itself and bear the reasons which weighed with the authority in forming the opinion to compulsorily retire an employee. The absence of this crucial link would inevitably taint the exercise of power.

In the facts of the present case, as noted above, the communication of the Excise Commissioner bears no reason in justification of the compulsory retirement of the petitioner. In fact, the said communication was simply a transmission of the necessary record. The Screening Committee in its report while recording that the continuance of the petitioner was no longer in public interest, records no reasons which may establish the basis on which this opinion was arrived at.

More importantly, the impugned order does not even refer to the report of the Screening Committee. It exists [as is evident from the language of the impugned order itself] and has been shown to rest solely upon the communication of the Excise Commissioner dated 6 August 2017. Learned Standing Counsel was unable to explain this fundamental and fatal flaw in the impugned order. As noticed above, the communication dated 6 August 2017 did not carry any recommendation with respect to the expediency of compulsorily retiring the petitioner.

It is therefore, manifest that the impugned order suffers from serious flaws which strike at the very root of the exercise of power itself. The attention of the Court has also been invited to the decision rendered by a learned Judge in Sunil Kumar Sonkar Vs. State1 in which the challenge to an order of compulsory retirement was upheld and the impugned decision quashed. Sri Sahai has pointed out that Sunil Kumar Sonkar also emanated from the same report of the Screening Committee and he was also compulsorily retired by an order of even date. Dealing with this case the learned Single Judge has, in the considered view of this Court, correctly recorded that the Screening Committee did not record any reasons which may have linked the subjective satisfaction formed by it.

On an over all conspectus of the aforesaid facts, this Court is of the firm view that the impugned order cannot be sustained. Accordingly the writ petition is allowed. The impugned order dated 30 August 2017 is hereby quashed. The petitioner in consequence shall be entitled to all consequential benefits.

Order Date :- 15.11.2018

LA/-