Adityendra Sharma vs State Of U.P. And 3 Others
2021 Latest Caselaw 11351 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
Reserved on 28.09.2021
 
Delivered on 23.11.2021­
 

 
Case :- WRIT - A No. - 26110 of 2018
 

 
Petitioner :- Adityendra Sharma
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ashok Kumar Rai, Santoosh Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saral Srivastava,J.

1. I have heard learned counsel for the petitioner and learned counsel for the respondents.

2. The petitioner has assailed the order dated 29.10.2018 passed by respondent no.2-Chief Election Officer, U.P., Lucknow by which he has been compulsory retired and the consequential order dated 30.10.2018 passed by respondent no.3-Additional District Magistrate (Administration)/Deputy District Election Officer, Bulandshahar intimating the order dated 29.10.2018.

3. Brief facts giving rise to the present case are that the petitioner was appointed as Junior Assistant on 19.06.1990 in the office of District Election Officer. The petitioner was promoted to the post of Senior Assistant. The petitioner was suspended by order dated 01.07.2011 on the charge that he had not been performing his duties properly and had not abide by the orders of his superiors. Thereafter, an enquiry was instituted against the petitioner. The petitioner was awarded punishment by placing him on the minimum pay scale by order dated 16.02.2016.

4. It appears that the Chief Secretary, Government of U.P., Lucknow issued an order on 06.07.2017 to all Additional Chief Secretary/Principal Secretary/Secretary, U.P. Government to forward the details of all employees working in their department who have completed fifty years on 31.07.2017 for screening them for compulsory retirement. The cut-off date of fifty years was 31.03.2017.

5. Pursuant to the aforesaid letter, the Chief Election Officer, UP, Lucknow wrote a letter dated 12.07.2017, addressed to all District Election Officers, the State of U.P. Whereby he asked them to supply details of employees who have completed fifty years on 31.03.2017 to screen them for compulsory retirement.

6. The Additional District Magistrate (Finance/Revenue)/Deputy District Election Officer, Hathras by letter dated 28.07.2017 sent the details of all the employees including the petitioner to the Chief Election Officer, U.P., Lucknow. According to the said report, the services of the petitioner are satisfactory.

7. The District Election Officer, Hathras by letter dated 22.09.2017 submitted a report to the Chief Election Officer, UP, Lucknow stating therein that the petitioner has given full cooperation in successfully conducting the election of General Assembly-2017. However, the Chief Election Officer in the exercise of power under Rule 56(c) of Fundamental Rules passed an order on 29.10.2018 retiring the petitioner compulsorily. According to the said order/notice, the petitioner will retire after three months of the said order/notice. The order dated 29.10.2018 was communicated by respondent no.3-Additional District Magistrate, Bulandshahar to the petitioner on 30.10.2018.

8. The further, case of the petitioner is that the Chief Election Officer, UP, Lucknow by order dated 17.07.2018 initiated a disciplinary proceeding against the petitioner, and the District Election Officer, Bulandshahar was appointed as Enquiry Officer to conduct an enquiry against the petitioner. The Chief Election Officer, UP, Lucknow by order dated 20.08.2018 changed the Enquiry Officer for conducting enquiry against the petitioner.

9. In the counter affidavit, the respondent has stated that the petitioner was promoted as Senior Assistant in the year 1996 and not in the year 2018. In the disciplinary proceeding, the petitioner was awarded the punishment of reversion of the minimum pay scale on the post of Senior Assistant by order dated 16.02.2016. The respondents have further stated in the counter affidavit that the petitioner was compulsorily retired in the public interest to enhance efficiency in the department and to make the atmosphere corruption-free. It is further stated in the counter affidavit that the conduct and reputation of the petitioner were such that his continuance in service would have been a menace and injurious to the public interest. To support the aforesaid contention, the respondents have enclosed various letters dated 24.01.2017, 04.03.2017, 21.03.2017, 16.11.2017 & 30.05.2018. It is further stated that the letter of the Election Officer, Hathras dated 22.09.2017 was in the context of fixation of pay in consonance with the 7th Pay Commission.

10. Further, the case of the respondents is that the District Election Officer, Bulandshahar by letter dated 31.08.2018 directed the petitioner to appear before the screening committee at 11:00 A.M. on 14.09.2018. The petitioner had appeared on 14.09.2018 at 11:00 A.M. before the screening committee and the petitioner was also given a personal hearing. The respondents have also enclosed with the counter affidavit, the report of the screening committee which was the basis of forming the opinion that the petitioner should be compulsorily retired in the public interest and for the better administration of the department.

11. Challenging the aforesaid order, learned counsel for the petitioner has contended that compulsory retirement should not be used as a tool to cut short disciplinary proceedings. He submits that it is on record that the disciplinary proceeding was instituted against the petitioner by order dated 20.08.2018 for certain allegations and once, the disciplinary proceeding had been instituted against the petitioner that ought to have been brought to a logical end by the respondents by conducting proper and fair enquiry in which the petitioner should also be allowed to defend himself and prove his innocence. He submits that the report of the screening committee enclosed with the counter affidavit also discloses that there was no material except certain allegations of irregularities committed by the petitioner which influenced the screening committee to conclude that the petitioner should be compulsorily retired. He submits that the object of compulsory retirement is to weed out the deadwood, and in the instant case, there is no material on record based on which a prudent man would form an opinion that the petitioner has outlived his utility in the department and is deadwood, therefore, he should be compulsorily retired. In support of his case, learned counsel for the petitioner has relied upon the judgments of this Court in Writ-A No.45254 of 2017 (Ghanshyam Misra Vs. State of U.P. and 7 others), Special Appeal Defective No.24 of 2018 (Rizwan Ahmad Vs. State of U.P. and 3 others) and Special Appeal No.496 of 2018 (Brijesh Kumar Vs. State of U.P. and 2 others).

12. Per contra, learned Standing Counsel contends that the screening committee after considering the entire service record of the petitioner formed an opinion that the petitioner has outlived his utility in the department and is deadwood, and accordingly, the screening committee recommended for compulsory retirement of the petitioner. He submits that various communications/letters enclosed as Annexure CA-2 to the counter affidavit and the fact that the petitioner had been awarded punishment by order dated 16.02.2016 and the report of the screening committee demonstrates that the retention of the petitioner in the department was not in the public interest. He submits that opinion of the screening committee is based upon subjective satisfaction after screening the entire record of the petitioner, and particularly the record of the recent past. Accordingly, it is submitted that the decision of the committee to recommend the petitioner for compulsory retirement is correct. He submits that the opinion of the screening committee is not solely based upon pendency of disciplinary proceeding but is based upon the appreciation of the entire service record of the petitioner and therefore, it is not a fit case, where this Court should interfere with the order of compulsory retirement.

13. I have heard learned counsel for the parties and perused the record.

14. The facts as emerge out from the record are that the petitioner has been appointed as Junior Assistant on 19.06.1990 and has been promoted as Senior Assistant in the year 1996. The petitioner was suspended by order dated 01.07.2011, and upon conclusion of the disciplinary proceeding, he was awarded the punishment of reversion to the minimum pay scale of Senior Assistant by order dated 16.02.2016. It is contended that the order of compulsory retirement has been issued as camouflage to cut short the disciplinary proceeding instituted by order dated 20.08.2018 passed by the Chief Election Officer, U.P., Lucknow and, therefore, the order of compulsory retirement is liable to be set aside.

15. On perusal of record, this Court finds that the facts are otherwise. The respondents have enclosed various letters of authorities dated 24.01.2017, 04.03.2017, 21.03.2017, 16.11.2017 & 30.05.2018 stating therein that the petitioner is not discharging his duties properly and is not abiding by the instructions of his superior officers. The issuance of said letters has not been denied by the petitioner which is evident from Para 5 of the rejoinder affidavit which replies the averment of Paragraph 6 of the counter affidavit. Further, the fact that the petitioner was awarded punishment by order dated 16.02.2016 which the petitioner had undergone is also not disputed on record.

16. At this stage, it would be apt to refer to the report of the screening committee in respect of the petitioner, enclosed as Annexure-3 to the counter affidavit:-

4.

श्री आदित्येन्द्र शर्मा, वरिष्ठ सहायक, जिला निर्वाचन कार्यालय, बुलन्दशहर (तत्कालीन वरिष्ठ सहायक, जिला निर्वाचन कार्यालय, हाथरस)

सुनवाई के दौरान अपने समर्थन में प्रस्तुत किये गये पक्ष, निर्वाचन विभाग में उनके द्वारा की गयी सेवाओं, उनकी वार्षिक चरित्र प्रविष्टियों, विभाग द्वारा उनके विरुद्ध प्रचलित की गयी अनुशासनिक कार्यवाहियों तथा दिये गये दण्डों एवं उनके सम्बन्ध में संबंधित जिला निर्वाचन अधिकारी द्वारा उपलब्ध करायी गयी संस्तुति सहित आख्या का अवलोकन किया गया। अवलोकन से यह संज्ञान में आया कि-

अ- श्री आदित्येन्द्र शर्मा के विगत 10 वर्षों की चरित्र प्रविष्टियों में संबंधित अधिकारियों द्वारा या उन्हें सामान्य कार्मिक के रूप में आंकलित किया गया है अथवा प्रविष्टियां प्रदान ही नहीं की गयी है।

ब- श्री आदित्येन्द्र शर्मा के विरूद्ध गम्भीर अभिलेखीय/वित्तीय अनियमितता बरते जाने तथा उच्चाधिकारियों के आदेशों का उल्लंघन करने, मनमाने ढंग से कार्यालय आने, अपने पदीय दायित्वों में घोर लापरवाही एवं उदासीनता बरते जाने तथा कर्मचारी आचरण नियमावली के सुसंगत नियमों का उल्लंघन करने जैसे गम्भीर आरोप लगे। उक्त आरोपों के दृष्टिगत श्री आदित्येन्द्र शर्मा को कार्यालय ज्ञाप संख्या-786/सी०ई०ओ०-1 दिनांक 01.07.2011 के द्वारा उनके विरूद्ध अनुशासनिक कार्यवाही संस्थित करते हुए उन्हें निलम्बित कर दिया गया था। जांच अधिकारी द्वारा उपलब्ध कराये गये जांच आख्या में उनके विरूद्ध लगे कुल 11 आरोपों में 07आरोप पूर्णतया सिद्ध पाये गये, 01 आरोप आंशिक रूप से सिद्ध पाया गया तथा 03 आरोप सिद्ध नही पाये गये। जांच अधिकारी की आख्या एवं अन्य सुसंगत अभिलेखों से यह भी संज्ञान में आया कि वे अभिलेख समय से तैयार नहीं करते हैं, अग्रिम का समायोजन उनके द्वारा 1.5 वर्ष में किया गया, उनके कैशियर के रूप में कार्य करने की अवधि में कैशबुकों में भिन्नता/अपूर्णता पायी गयी। उनके द्वारा ट्रेजरी चेक काफी समय तक अपने पास रखा गया। प्रकरण में कार्यालय ज्ञाप संख्या-465/सी०ई०ओ०-1 दिनांक 16.02.2016 के द्वारा श्री आदित्येन्द्र शर्मा को दोषी पाते हुए हुए उन्हें वरिष्ठ सहायक के मूलवेतन के न्यूनतम प्रक्रम पर प्रत्यावर्तित करने के दण्ड के साथ उनका निलम्बन एवं उनके विरूद्ध प्रचलित अनुशासनिक कार्यवाही को समाप्त किया गया।

स- श्री आदित्येन्द्र शर्मा, वरिष्ठ सहायक, जिला निर्वाचन कार्यालय, ज्योतिबाफूलेनगर माह जनवरी, 2002 में स्थानान्तरित होकर जनपद हाथरस गये। श्री शर्मा द्वारा जनपद ज्योतिबाफूलेनगर में कैशियर का कार्य निस्तारित किया जाता था। जनपद ज्योतिबाफूलेनगर में धनराशि रू०-8,36,300.00 के गबन से संबंधित प्रकरण संज्ञान में आने के उपरान्त जब कैशचेस्ट को खोला गया तो उसमें से रू०-2,53,090.00 लगभग की धनराशि कैशचेस्ट से बरामद हुई। शेष धनराशि रू०-5,83,210.00 के आधार पर उच्चाधिकारी द्वारा एफ०आई०आर० दर्ज करायी गयी थी, जिसका मुकदमा जनपद न्यायालय में चल रहा है।

चूंकि वर्ष 1999-2000 से 2001-2002 की अवधि की विशेष सम्परीक्षा होनी है और इसके लिए सम्परीक्षा दल द्वारा मांगे जाने वाले अभिलेखों को संकलित कराकर उपलब्ध कराये जाने के निर्देश दिये गये हैं। ऐसी स्थिति में अभिलेखों का संकलन मात्र इस कारण नहीं हो पा रहा है कि श्री आदित्येन्द्र शर्मा द्वारा अपना सम्पूर्ण चार्ज जनपद अमरोहा (तत्कालीन ज्योतिबाफूलेनगर) में उपस्थित होकर आज तक नहीं उपलब्ध कराया गया है, जबकि इसके लिए उन्हें अनेकों बार निर्देशित किया गया। चार्ज हस्तगत ने कराये जाने, आदेशों की अवहेलना करने तथा अनुशासनहीनता आदि आरोपों के दृष्टिगत कार्यालय ज्ञाप संख्या-1378/सी०ई०ओ०-01 दिनांक 17.07.2018 के द्वारा उनके विरुद्ध अनुशासनिक कार्यवाही पुनः संस्थित कर दी गयी हैं।

द- श्री आदित्येन्द्र शर्मा के संबंध में जिला निर्वाचन अधिकारी, हाथरस (जहां वे जनपद बुलन्दशहर होने के पूर्व तैनात थे) द्वारा उनके संबंध में यह उल्लिखित किया गया है कि श्री आदित्येन्द्र शर्मा कार्यालय में अधिकांशतः विलम्ब के आने तथा मनमर्जी के बिना सूचना दिये एवं अवकाश बिना स्वीकृत कराये कार्यालय से अनुपस्थित रहने के आदी हैं, जिसके संबंध में श्री शर्मा से अपनी कार्य प्रणाली में अपेक्षित सुधार लाने हेतु सचेत किया गया तथा इनके वेतन रोके जाने की भी प्रक्रिया अपनाई गयी जिस कारण इनकी छवि अच्छी नहीं है।

उक्त के दृष्टिगत स्क्रीनिंग कमेटी द्वारा श्री आदित्येन्द्र शर्मा, वरिष्ठ सहायक को अनिवार्य सेवानिवृत्ति प्रदान करने की संस्तुति करती है।

17. A joint reading of various letters enclosed as Annexure-2 to the counter affidavit with the report of the screening committee, it is evident that the screening committee has considered the entire record and was not at all influenced only by the order dated 20.08.2018 passed by the Chief Election Officer, UP, Lucknow instituting disciplinary proceeding against the petitioner in forming the opinion that petitioner should be compulsorily retired as his continuance in the department is not in the public interest. A perusal of the report of the screening committee discloses that the order dated 20.08.2018 of the Chief Election Officer, UP, Lucknow instituting the disciplinary proceeding was not before it, hence, in such view of the fact, it cannot be said that the decision of screening committee was influenced by the order dated 20.08.2018 or the order of compulsory retirement has been passed to cut short the disciplinary proceeding.

18. At this stage, it would apt to refer to the judgment of the Apex Court in the case of State of U.P. Vs. Abhai Kishore Masta 1995(1) SCC 336. Relevant paragraphs 7, 8, 9 & 12 of the said judgment are reproduced herein-below:-

"7. So far as the order of compulsory retirement under Fundamental Rule 56-J is concerned, we are of the opinion that the principle enunciated by the High Court in J.N. Bajpai and followed in the Judgment under appeal is unsustainable in law. It cannot be said as a matter of law nor can it be stated as invariable rule, that any and every order of compulsory retirement made under Fundamental Rule 56-J (or other provision corresponding thereto) during the pendency of disciplinary proceedings is necessarily penal. It may be or it may not be. It is a matter to be decided on a verification of the relevant record or the material on which the order is based.

8. In the State of Uttar Pradesh v. Madan Mohan Nagar (1967)IILLJ63SC it has been held by a Constitution Bench that the test to be applied in such matters is "does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsory?" It was observed that if the charge or imputation against the officer is made the condition of the exercise of the power it must be held to be by way of punishment-otherwise not. In other words if it is found that the authority has adopted an easier course of retiring the employee under Rule 56-J instead of proceeding with and concluding the enquiry or where it is found that the main reason for compulsorily retiring the employee is the pendency of the disciplinary proceeding or the levelling of the charges, as the case may be, it would be a case for holding it to be penal. But there may also be a case where the order of compulsory retirement is not really or mainly based upon the charges or the pendency of disciplinary enquiry. As a matter of fact, in many cases, it may happen that the authority competent to retire compulsorily under Rule 56-J and authority competent to impose the punishment in the disciplinary enquiry are different. It may also be that the charges communicated or the pendency of the disciplinary enquiry is only one of the several circumstances taken into consideration. In such cases it cannot be said that merely because the order of compulsory retirement is made after the charges are communicated or during the pendency of disciplinary enquiry, it is penal in nature.

9. It is true that merely because the order of compulsory retirement is couched in innocuous language without making imputations against the government servant, the Court need not conclude that it is not penal in nature. In appropriate cases the Court can lift the veil to find out whether, in truth, the order is penal in nature vide Ram Ekbal Sharma v. State of Bihar."

It ultimately held:-

12. We are, therefore, of the opinion that the High Court was in error in holding that merely because the order of compulsory retirement was passed during the pendency of a disciplinary enquiry, it must be necessarily deemed to be penal in nature, is unsustainable in law. The Judgment of the High Court is accordingly set aside and the matter is remitted to the High Court to determine, in the light of the observations made herein, whether the order of compulsory retirement is, in truth, penal in nature? There shall be no order as to costs."

19. The Apex Court in the case of Abhai Kishore Masta (supra) has held that the order of compulsory retirement during the pendency of disciplinary proceedings is penal and is unsustainable in law. The Apex Court held that where it could be demonstrated that the authority has used the tool of compulsory retirement as an easier course to retire the employee instead of proceeding with enquiry and concluding the same or where the main reason for compulsorily retiring the employee is the pendency of the disciplinary proceeding or the levelling of the charges, as the case may be, it would be a case for holding it to be penal. But if the authorities on the subjective satisfaction of the record form an opinion that the employee is deadwood and has outlived in the department and while forming the said opinion the pendency of disciplinary proceeding is one of the several circumstances which has been taken into consideration. In such a case, it cannot be said that the order of compulsory retirement during the disciplinary proceeding is penal. The Apex Court has further held that in appropriate cases the court can lift the veil to find out whether, in truth, the order is penal.

20. Now applying the law elucidated by the Apex Court in the case of Abhai Kishore Masta (supra), this Court finds that the order of compulsory retirement against the petitioner is based upon subjective satisfaction of the entire record of the petitioner more particularly the recent record of the petitioner and the pendency of disciplinary proceeding was not at all in consideration of the screening committee in forming an opinion that the petitioner should be compulsorily retired in the public interest.

21. If the various letters of authorities enclosed as Annexure-CA-2 to the counter affidavit and the report of the screening committee are read, this Court finds that the screening committee after proper appreciation of material on record formed the opinion that the petitioner is deadwood and is not fit to remain in the department for better administration and, therefore, this Court is not inclined to agree with the contention of learned counsel for the petitioner that the order of compulsory retirement has been passed as camouflage to cut short the disciplinary proceeding against the petitioner.

22. So far as the judgments of this Court relied upon by learned counsel for the petitioner are concerned, in the case of Ghanshyam Misra (supra), this court after noticing the various precedents of the Apex Court on the subject of compulsory retirement held that the decision of the screening committee was not based upon subjective satisfaction of the record as the screening committee failed to consider entries awarded to the petitioner in recent past where the petitioner was awarded good entries. Therefore, the facts and circumstances in which this Court allowed the writ petition are not akin to the facts of the present case and, therefore, the judgment of this Court is no help to the petitioner.

23. So far as the judgment of this Court in the case of Brijesh Kumar (supra) is concerned, this Court recorded a finding that while screening the records of the petitioner, the competent authority has not examined the records in its entirety correctly and in proper perspective, whereas in the case in hand, the screening committee has formed the opinion on the subjective satisfaction on appreciation of entire record of the petitioner. It is worth notice that learned counsel for the petitioner could not demonstrate that the report of the screening committee is per-se illegal or based upon no material on record. Accordingly, the judgment of Brijesh Kumar (supra) also does not come to the aid of the petitioner.

24. So far the judgment of this Court in the case of Rizwan Ahmad Vs. State of U.P. ad others (Special Appeal Defective No.24 of 2018) is concerned, the same has also been rendered in the different factual backdrop since in the said case, the Court found that the entire service record was not placed before the screening committee who formed an opinion on the basis of the incomplete service record of the petitioner to compulsory retire the petitioner. Accordingly, this Court held that the order of compulsory retirement is not sustainable. The judgment in the said case has been rendered by this Court in different factual backdrop and therefore, reliance placed by the learned counsel for the petitioner on the said judgment is also misconceived.

25. For the reasons given above, this Court finds that there is no infirmity in the order of compulsory retirement. Accordingly, the writ petition lacks merit and is dismissed without there being any order as to cost.

Order Date :-23.11.2021

SS