High Court · 2012

14. Respondent No.4 has filed his affidavit. He has stated that afte r the petitioner re-joined service on 14-09-1995, he remained unauthorisedly abs ent. It is stated that as the petitioner did not cross the efficiency bar, his b asic pay could not be revised and, therefore, 75% of his arrear salary was calcu lated on the basis of pre-revised pay, which was quantified at Rs.99,298.00 and was paid to the petitioner. It is contended that petitioner remained continuousl y absent from duty since his joining on 14-09-1995 for which the order of compul sory retirement was passed.

15. This case was heard at length on an earlier occasion. In the cou rse of the hearing, the then learned Counsel for the petitioner made a submissio n before the Court that he would not press the challenge to the impugned order d ated 14-12-2000 but would instead seek a direction for release of retirement ben efits following the order dated 14-12-2000. By the judgment and order dated 14-0 2-2008, this Court disposed of the writ petition by declining to issue any direc tion for release of Rs.1,19,326.00 to the petitioner as was prayed for. However, direction was issued for release of pensionary dues to the petitioner.

16. A review petition was filed by the petitioner, which was registe red as R.A. No.9/2009, contending that concession was given by his Counsel witho ut any instruction from him and on a mis-reading of the impugned order. This Cou rt on due consideration, passed order dated 08-06-2010 recalling the judgment an d order dated 14-02-2008 and directing rehearing of the case as per roster. This is how the case came to be listed for hearing again.

17. Heard Mr. B.C. Das, learned Senior Counsel assisted by Mr. D.N. Bhattacharyya, learned Counsel for the petitioner. Dr. B.Ahmed, learned Standing Counsel, Irrigation Department appears for the respondents.

18. Mr. Das, learned Senior Counsel appearing for the petitioner sub mits that compulsory retirement is a punishment under the Rules and, therefore, before imposition of such punishment, the procedure prescribed in Rule 9 of the Rules, namely, holding of inquiry, should have been followed. As the punishment was not preceded by an inquiry and as no reasonable opportunity of hearing was g iven to the petitioner before passing the impugned order, the punishment imposed cannot be sustained. The petitioner was compulsorily retired on the imputation that he remained continuously absent from attending office and such type of negl igence to duty amounted to automatic discharge from Government service. In view of such imputation, the compulsory retirement partook the character of punishmen t and, therefore, petitioner was entitled to protection under Article 311(2) of the Constitution. As the same was not extended to him, the impugned order stood vitiated and is liable to be set aside and quashed. In support of his submission s, learned Senior Counsel has placed reliance on the following judgments :- AIR 1966 SC 492 Jai Shanker -Vs- State of Rajasthan (1971) 2 SCC 514 The State of U.P. -Vs- Shri Shyam Lal Sharma AIR 1976 SC 37 The State of Assam and Ors. -Vs- Akshaya Kumar Deb Sri Harendra Nath Bhattacharjee -Vs- State of Assam and Ors. 1995 (3) GLT 228 (2001) 2 SCC 305 Bishwanath Prasad Singh -Vs- State of Bihar and others After the learned Senior Counsel for the petitioner had conclude 19. d his submissions on 14-09-2012, hearing was deferred to 20-09-2012 on the reque st of learned Departmental Standing Counsel. As he was not present on that day, hearing was closed, fixing 26-09-2012 for delivery of judgment. Today also there is no representation on behalf of the respondents.

20. onsideration. The affidavit of the respondents has also been considered. Submissions made on behalf of the petitioner have received due c

21. Question is whether release of the petitioner from service on co mpulsory retirement was an administrative order or was imposed as a punishment f or the alleged negligence to duty imputed against the petitioner.

22. impugned order may be necessary, which is as under :- For better appreciation of the issue involved, a perusal of the (cid:28)GOVERNMENT OF ASSAM OFFICE OF THE CHIEF ENGINEER : IRRIGATION DEPARTMENT : CHANDMARI, GUWAHATI-78100 3 OFFICE ORDER Dated Guwahati, the 14th Dec./2000 No. CEI(E)151/95/235 :- The Government in Irrigation Department after going thro ugh the papers pertaining to appeal petition dated 10-04-2000 submitted by Shri Sikandar Ali Laskar, Sub-Engineer, Grade-I, passed valued observation that Shri Sikandar Ali Laskar, Sub-Engineer, Grade-I, under Silchar Mechanical Division (I rrigation), Silchar, continuously remained absent from attending office and such type of negligence to duty amounts to automatic discharge from Government servi ce. Taking into consideration of rendering service by Shri S.A. Laskar from the period of his joining in service i.e., with effect from May, 1978 to 13-09-1995, Government has ordered to release him with pensionary benefit to Shri S.A. Lask ar, Sub-Engineer, Grade-I, on compulsory retirement. Hence, in pursuance of Government letter No. IGN(E)87/88/255 dat ed 29-11-2000, Shri S.A. Laskar, Sub-Engineer, Grade-I, is hereby released on co mpulsory retirement which will be effective from 14 September, 1995. Sd/- (M.L. Aryya) Chief Engineer, Irrigation, Assam, Chandmari, Guwahati-3. (cid:29)

23. It is seen from the above that the petitioner was released from service on compulsory retirement on the basis of a Government decision saying th at the petitioner continuously remained absent from attending office and such ty pe of negligence to duty amounted to automatic discharge from Government service . It is further seen that though the order is dated 14-12-2000, effect was given from an anterior date i.e. 14-09-1995. Thus, the petitioner was released from s ervice on compulsory retirement on the ground of alleged negligence to duty. In the counter affidavit of the respondent No.4, it is stated that petitioner remai ned absent continuously since his joining on 14-09-1995 which justified the orde r of compulsory retirement.

24. rawn up against the petitioner prior to passing of the aforesaid order. It is an admitted position that no departmental proceeding was d

25. Under Rule 7 of the Rules, compulsory retirement is one of the m ajor penalties which may be imposed on a Government servant for good and suffici ent reasons. However, Rule 9 of the Rules stipulates that no order imposing any of the penalties on a Government servant shall be passed except after holding an enquiry in the manner provided therein. This requirement gives statutory recogn ition to the principles of natural justice and is in tune with the constitutiona l mandate of Article 311 (2) of the Constitution.

26. Under F.R. 18 of the Fundamental Rules and Subsidiary Rules, a G overnment servant may be removed from service if he remains continuously absent from duty for more than five years but such removal should be effected after fol lowing the procedure laid down in the Rules. Therefore, even in a case where a G overnment servant is required to be removed from service for remaining continuou sly absent from duty for 5 years or more, the procedure prescribed under the Rul es has to be followed. In other words, such removal has to be preceded by holdin g of an enquiry in the manner specified in Rule 9 which requires amongst other f raming of definite charges and calling upon the Government servant to submit wri tten statement on the charges framed, which may be followed by holding of an enq uiry. This Court in Harendra Nath Bhattacharjee (supra) has held that F.R. 18 ca n be invoked even in a case where the Government servant is absent without leave for a period which is less than 5 years but only after holding an enquiry. What ever be the case, whether the absence is for more than 5 years or less than 5 ye ars, removal can be done only after following the procedure laid down in the Rul es and also after following the provisions of Article 311 of the Constitution.

27. A Government servant can also be relieved from service by way of compulsory retirement as an administrative measure if it is considered necessar y in the public interest. Such a power is vested on the appropriate authority un der F.R. 56 (b). However, before exercising such power, the Government servant m ust be given 3 months prior notice in writing or 3 months pay and allowances in lieu of such notice after he has attained 50 years of age or has completed 25 ye ars of service, whichever is earlier. In the present case, the petitioner had en tered service in September, 1978. Admittedly, he had not completed 25 years of s ervice when the impugned order dated 14-12-2000 was passed. From the affidavit f iled by the petitioner in support of the writ petition, it is seen that he had a lso not completed 50 years of age when the aforesaid order was passed. Again, ne ither any notice was given to the petitioner nor any salary in lieu of such noti ce was paid to him. Therefore, it is quite evident that the petitioner could not have been compulsorily retired as an administrative measure as the conditions m entioned in F.R. 56(b) were not complied with.

28. The Hon’ble Supreme Court in the case of Jai Shanker (supra) hel d that whichever way one looks at the matter, the order of discharge from servic e involves a termination of the service when the incumbent is willing to serve. The Apex Court further held that a removal is a removal and if it is punishment for over-staying one’s leave, an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. It w as emphatically held that to give no opportunity would be to go against Article 311 of the Constitution.

29. as under :- In the case of Shyam Lal (supra), the Hon’ble Supreme Court held (cid:28)13. The following propositions can be extracted from these decisions. First, in ascertaining whether the order of compulsory retirement is one of punishment it has to be ascertained whether in the order of compulsory retirement there wa s any element of charge or stigma or imputation or any implication of misbehavio ur or incapacity against the officer concerned. Secondly, the order for compulso ry retirement will be indicative of punishment or penalty if the order will invo lve loss of benefits already earned. Thirdly, an order for compulsory retirement on the completion of 25 years of service or an order of compulsory retirement m ade in the public interest to dispense with further service will not amount to a n order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of fut ure prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowe d to remain a few years in service and being compulsorily retired. (cid:29) Thus, the Apex Court held that unless it is established from the order of compul sory retirement itself that a charge or imputation against the officer is made t he condition of the exercise of that power or that by the order the officer is l osing benefits already earned, the order of compulsory retirement cannot be said to be one in the nature of penalty or punishment.

30. In the case of Akshaya Kr. Deb (supra), the Hon’ble Supreme Cour t while examining the provision of F.R.18, held that F.R. 18 has to be interpret ed consistently with the requirement of Article 311(2) of the Constitution. It w as further held that it was imperatively necessary to give the Government servan t an opportunity to show-cause against the proposed action, particularly when he was persistently contending that his failure to join duty or absence was involu ntary and due to circumstances beyond his control.

31. On a detailed examination of the concept of compulsory retiremen t, the Hon’ble Supreme Court in the case of Bishwanath Prasad Singh (supra) held as under :- (cid:28)12. Compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflic ted on a delinquent government servant consequent upon a finding of guilt being recorded in disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or con sistently with the principles of natural justice if the field for inflicting suc h penalty be not occupied by any rules. Such compulsory retirement in the case o f a government servant must also withstand the scrutiny of Article 311 of the Co nstitution. Then there are service rules, such as Rule 56(j) of the Fundamental Rules, which confer on the Government or the appropriate authority, an absolute (but not arbitrary) right to retire a government servant on his attaining a part icular age or on his having completed a certain number of years of service on fo rmation of an opinion that in pubic interest it is necessary to compulsorily ret ire a government servant. In that case, it is neither a punishment nor a penalty with loss of retiral benefits. & & & & & & & & & & & & & & & & &. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &.More appropriately, it is like premature retirement. It does not cast any stigma. The government servant shall be entitled to the pension actually earned and other retiral benefits. So long as the opinion forming basis of the order fo r compulsory retirement in public interest is formed bonafide, the opinion canno t be ordinarily interfered with by a judicial forum. Such an order may be subjec ted to judicial review on very limited grounds such as the order being malafide, based on no material or on collateral grounds or having been passed by an autho rity not competent to do so. The object of such compulsory retirement is not to punish or penalise the government servant but to weed out the worthless who have lost their utility for the administration by their insensitive, unintelligent o r dubious conduct impeding the flow of administration or promoting stagnation & & & &. (cid:29)

32. Judged by the aforesaid legal principles, it is apparent that th e order of compulsory retirement in the present case is based on an imputation, namely, that the petitioner had continuously remained absent from attending offi ce and such type of negligence to duty amounted to automatic discharge from Gove rnment service. Petitioner has asserted in the writ petition that after he had r ejoined service following the judgment of this Court, he was neither provided wi th any space and facility nor allotted any work. But he continued to attend offi ce. Thus, he was retired from service though he was willing to continue and as a matter of fact, he has contended that he was attending office inspite of shabby treatment being meted out to him by his higher authority. Therefore, the imputa tion was of such a nature which would require calling for explanation from the p etitioner and examination of such explanation inasmuch as the allegation is of n egligence to duty on the basis of which petitioner was compulsorily retired. Vie wed from the above, the impugned order of compulsory retirement clearly appears to be punitive in nature. That being the position, petitioner was required to be provided the protection under Article 311(2) of the Constitution as well as und er the Rules. The same having not been provided, the impugned order requires int erference by this Court. In view of the discussions made above, the impugned order dated 33. 14-12-2000 is hereby set aside and quashed. Petitioner would stand re-instated i n service with all service benefits. But he will not be entitled to any back wag es. This order will, however, not debar the respondents from holding an inquiry against the petitioner, if considered necessary.

34. The petitioner’s prayer for revised pay scale and crossing of ef ficiency bar having not been accepted by this Court in Civil Rule No.6366/1996, no direction can be issued to the respondents to release the amount of Rs.1,19,3 26.00 to the petitioner, as prayed for, as the same is based on the petitioner’s claim of revised pay scale and crossing of efficiency bar.

35. ve.

36. Writ petition is accordingly allowed to the extent indicated abo There will however be no order as to cost.