Mohd Yunas vs Virtually on 9 December, 2010

Jammu High Court
Mohd Yunas vs Virtually on 9 December, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP No. 2072 OF 2004    
Mohd Yunas  
Petitioners
State & Ors.
Respondent  
!Mr. S.K.Anand, Advocate. 
^Mr. Gagan Basotra, AAG  

Hon'ble Mr. Justice Mansoor Ahmad Mir, J. 
Date: 9.12.2010
:J U D G M E N T :

Petitioner has challenged the Government Order No. 1268 of 2004 dated 20th of
September 2004 (for short impugned order) whereby he came to be prematurely
retired with effect from forenoon of 21st of September 2004 on the grounds taken
in the writ petition.

It is averred that petitioner was appointed as a Forest Guard in the year
1974, promoted to the post of Deputy Forester in the year 1980 and as Forester in
the year 1983. He has unblemished service career of over thirty years and no
adverse entry in his service records for the entire period. His work was appreciated
by the respondent-department, which is disclosed by the letter of commendation
as contained in Annexure A, B, C, D, E, & F. His performance is adjudged as
Excellent/outstanding/very-very good for the period 1995 to 2002-2003
(Annexure-G).

The reputation earned by the petitioner was appreciated by general public
and senior officers of the department but at the same time, it generated animosity
and some persons managed a news item in Bismark Evening Paper (Annexure-H).
The complaint was made before the authorities, came to be found baseless and
rejected (Annexure- J, K, L, M, P & Q), but despite that the impugned order came
to be passed and it is prayed that it be quashed.

Respondents have made evasive reply. It is apt to reproduce para 6-11 of the
reply filed by the respondents.

6-11. That the contents of these paras are misdirected and
misconceived, in that, the impugned order has been issued
in the public interest. Excellent APRs as projected by the
petitioner is no ground to question the impugned order as
performance at any stage of the service of an officer cannot
be taken as final assessment for entire service of such an
officer. The petitioner may have performed at any point of
time but at the time of consideration of his overall service
record and performance by the committee, he as been found
fit for premature retirement. It is further submitted that the
petitioner has not disclosed the source from where he has
managed APRs which he has annexed with the writ petition
as APRs of an employee are property of the employer and is
always confidential. Silence on this point may render the
petitioner liable for action under law. It is further
respectfully submitted that even otherwise the contents of
these paras in itself speak about the conduct of the
petitioner.

Petitioner has also filed the rejoinder.

The question involved is whether in the given circumstances, the impugned
order can be interfered with?

The Apex Court and this Court in various cases reported as Baldev Raj
Chandra V. Union of India,
1980(4) SCC 321, Baldev Raj Chandra V. Union of
India, AIR
1981 SC 70, H.C. Gagri V. State of Haryana, AIR 1987 SC 65, Brij
Mohan Singh Chopra Vs. State of Punjab, AIR 1987 SC 948, Baidyanath
Mahapatra V. State of Orissa, AIR
1979 SC 2218,Ram Ekbal Sharma V. State of
Bihar, 1990(3) SCC 504, Union of India V. Dulal Dutt, 1993 (2) SCC 179, S.
Ramachandra Raju V. State of Orissa,
1994 Supp (3) SCC 424, State of J&K V. Jia
Lal Gupta, 1994 SLJ 234, Chief General Manager, SBI V. Suresh Chandra Behera,
AIR
1995 SCC 1745; K.K.Kandaswamy V. Union of India, AIR 1996 SC 277;
Allahabad Bank Officers Association V. Allahabad Bank, 1996 (4) SCC 504;
M.S.Bindra V. Union of India, 1998(7) SCC 310; M.S.Bindra V. Union of India,
AIR
1998 SC 3058, State of Gujarat V. Suryakant Chunilal Shah, 1999(1) SCC
529, State of Gujarat V. Umedbhai M. Patel, AIR 2001 SC 1109, State of U.P V.
Chater Sen, 2005 (9) SCC 592, Pritam Singh V. Union of India, 2005 (9) SCC 748,
State of J&K &b ors., Vs. Gh. Rasool Magray, SLP No. 3369/2010 date of
decision: 16th of August 2010; Ashok Kumar Jain V. State of J&K & Ors. LPA
Nos. 27J and 28J of 2005 decided on 5-8-2005, Ghulam Rasool Magray Vs. State
of J&K & ors., 2005(Supp) JKJ 348 [HC]; Mohammad Mehraj-ud-Din Khan V.
State of J
&K & Ors., 2006 (3) JKJ 240 (HC), Shah Latief V. State of J&K & Ors.,
2006 (1) JKJ 486 HC (DB), Rajesh Gupta Vs. State of J&K & Ors., 2008 (1) JKH
573 [HC] and SWP No. 828 and other bunch of petitions titled Zareena Banoo &
connected matters V. State and others, 2008 (3) JKJ HC-106 date of decision 6-6-
2008, Janak Singh vs. State of Jammu and Kashmir reported in 2008 JKJ [HC] (1)
2009 588, SWP No. 1397 titled Parshottam Singh Vs. State & Ors., decided on 08th
of April 2010 and SWP No. 530 of 2005 titled Ram Dass Vs. State & Ors., date
of decision 24th of September 2010 have discussed the principles in order to test
whether the order of compulsory retirement is legally tenable or otherwise.

It is a beaten law of the land that compulsory retirement is not a punishment
at all and cannot be questioned by way of writ petition, except as per guidelines and
tests laid down by the judicial pronouncements. Apex Court in case Baikuntha
Nath Das & another Vs. Chief District Medical Officer, AIR 1992 SC 1020 has
laid down the following principles:-

32. The following principles emerge from the above
discussions:-

i) An order of compulsory retirement is not a
punishment. It implies no stigma nor any suggestion of mis-
behaviour.

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 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 un-communicated 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 object has
been discussed in paras 29 to 31 above.

Virtually respondents have admitted that the petitioner is having excellent
APRs but have not disclosed as to what was the material relied upon by them
before passing the impugned order. Respondents were directed to produce the
record, failed to do so, however, they have produced the photostat copies of the
same.

The concerned department was directed to screen the available record and
APRs of the officers against whom the departmental enquiries have been held
earlier or complaints against whom are under enquiry. It is apt to reproduce that
decision herein:-

. . . . .The Committee screened the personal files and also
perused the APRs of some of the officers of the Forest
Department. It was however, decided that the matter shall be
further considered on re-opening of offices at Srinagar. The
Forest Department shall in the meantime screen all relevant
records and APRs of the officers against whom
departmental enquiries have either been held earlier or
complaints against whom are under enquiry. The gist of
complaints, whether these were enquired into and, if so, with
what results shall also be placed by the Department before
the Committee in the next meeting. Adverse comments, if
any, contained in the Audit report against the officer shall
also be indicated in the report. . . . .

In terms of this decision, APRs of the officers were to be taken into
consideration. Admittedly, respondents have not taken into consideration the APRs
and the commendation letters before passing the impugned order.

The photostat copies of the record reveals that the four complaints were
made against the petitioner, out of which three charges came to be thrashed out and
was recorded in favour of the petitioner as discussed hereinabove, which have not
been taken into consideration by the Government while passing the impugned order.
The fourth allegation against the petitioner is that he was holding the charge of
Dudu Range without any authority, which is not true, as he was holding the charge
in terms of the order issued by the competent authority and this fact has not been
denied by the respondents in the written statement filed by them. But the record to
hold that petitioner was not holding good reputation, despite the fact that all pleas
are in his favour, is not forthcoming.

It has been held in case titled Baikuntha Nath Das & another Vs. Chief
District Medical Officer, AIR 1992 SC 1020 (supra) that it is mandatory to
consider the entire service record before taking any decision.

Before passing the impugned order, it was mandatory for the respondents to
examine the entire service record of the petitioner, more particularly, latest one,
which would form foundation for the opinion. I am fortified in my view by a
judgment of the apex Court reported as S.Ramchandra Raju Vs. State of Orissa,
1994 Supp (3) SCC 424, wherein it has been held:

On total evaluation of the entire record of service if the
Government or the governmental authority forms the
opinion that in the public interest the officer needs to be
retired compulsorily, the court may not interfere with the
exercise of such bona fide judicial review not as a court of
appeal but in its exercise of judicial review to consider
whether the power has been properly exercised or is
arbitrary or vitiated either by mala fide or actuated by
extraneous consideration or arbitrary in retiring the
government officer compulsorily from service.

Apex Court in case titled Bayanath Mahapatra Vs. State of Orrisa, AIR
1989 SC 2218 held that if any officer is promoted, previous allegations cannot be
made the basis for compulsory retirement.

Keeping in view the tests laid down by the Apex court and judgments of
this Court (supra), it can be easily held that relevant material was not considered by
the Committee and the impugned order came to be passed on no evidence.

Respondents have failed to indicate as to what were the allegations against
the petitioner. If at all, there were some allegations, same cannot be made basis for
passing the impugned order for the simple reason that the petitioner admittedly
came to be promoted twice in the year 1980 & 1983 as Deputy Forester and
Forester respectively. Apex Court in Baldev Raj Chadha Vs. Union of India &
ors., AIR 1981 SC 70, laid down the same law.

The apex Court in cases State of Gujarat Vs. Umedbhai M. Patel, AIR
2001 SC 1109, Baldev Raj Chadha Vs. Union of India, (1980) 4 SCC 321,
H.C.Gargi Vs. State of Haryana, AIR 1987 SC 65, M.S.Bindra Vs. Union of
India, (1998) 7 SCC 310 and State of U.P. Vs. Chater Sen (2005) 9 SCC 592,
has also laid down the same principle. It is apt to reproduce para 16 of the judgment
reported in (1980) 4 SCC 321(supra) hereunder:-
16. The appellant was promoted only in 1961 and was
regularly drawing increment for well over a decade, without
let or hindrance. What is far more significant is the further
fact that the Reviewing Committee and the AG appear to
have ignored entries in yearly/half yearly reports in the
seventies.

The appellant states categorically:-

A perusal of the extract from the confidential reports would
show that there were no adverse remarks in the confidential
reports of the appellant for the years 1971-72, 1972-73,
1973-74, 1974-75 and 1975-76, till the date of his retirement
from service on August 27, 1975.

A Division Bench of this Court while dealing with a case of an identical
nature titled as State of J&K Vs. Jia Lal Gupta & Ors., 1994 SLJ 24 has also laid
down the same principle.

Apex Court in case reported in Baikuntha Nath Das & another Vs. Chief
District Medical Officer, AIR 1992 SC 1020, Chief General Manager, SBI V.
Suresh Chandra Behera, AIR
1995 SCC 1745 and M.S.Bindra V. Union of
India, AIR
1998 SC 3058 has held that in order to arrive at a conclusion it is
mandatory to consider the entire service record of a government servant. It is apt to
reproduce para 6 of the judgment reported in AIR 1995 SC 1745 and para 13 of the
judgment reported in AIR 1998 SC 3058 here in:-

6. Learned advocate for the respondent relied on a
decision in the case of Baldeve Raj Chandra V. Union of
India (1981) 1 SCR 430 AIR 1981 SC 70). In that case, the
appellant was compulsorily retired on the basis of his poor
performance many years ago. He had been allowed to cross
the efficiency bar and there was nothing adverse in his
service record for the past five years. The Court said that the
order of compulsory retirement could not be sustained as it
ignored relevant material. This judgment has no application
to the facts of the present case.

13. While viewing this case from the next angle for
judicial scrutiny i.e., want of evidence or material to reach
such a conclusion, we may add that want of any material is
almost equivalent to the next situation that from the
available material no reasonable man would reach such a
conclusion. While evaluating the materials the authority
should not altogether ignore the reputation in which the
officer was held till recently. The maxima Nemo Firut
Repente Turpissiums (no one becomes dishonest all of a
sudden) is not unexceptional but still it is salutary guideline
to judge human conduct, particularly in the field of
Administrative Law. The authorities should not keep the
eyes totally closed towards the overall estimation in which
the delinquent officer was held in the recent past by those
who were supervising him earlier. To dunk an officer into
the puddle of doubtful integrity it is not enough that the
doubt fringes on a mere hunch. The doubt should be of
such a nature as would reasonably and consciously be
entertain able by a reasonable man on the given material.
Mere possibility is hardly sufficient to assume that it would
have happened. There must be preponderance of probability
for the reasonable man to entertain doubt regarding that
possibility. Only then there is justification to ram an officer
with the label doubtful integrity.

The Committee cannot base its report on guess work and Government
cannot pass an order on such guess work. Same point came up for consideration
before this Court in a case titled Zarina Bano & Ors., SWP No. 828/2005 decided
on 6th of June 2008 wherein it has been held by this Court that order of premature
retirement cannot be passed on mere guess work and without any material to
support the same. This Court also in case titled as Janak Singh Vs. State of J&K &
Ors., 2009(1) JKJ 588 [HC]; Parshotttam Singh Vs. State of J&K & Ors., SWP No.
1397/2006 decided on 08th of April 2010 and Ram Dass Vs. State of J&K & Ors.,
SWP No. 530/2005 date of decision 24th of September 2010 has laid down the
same principle.

It is the duty of the Court to lift the veil and record the finding whether the
order of compulsory retirement is without justification, arbitrary, outcome of malice
and came to be passed on no evidence. As discussed hereinabove, the impugned
order has been passed arbitrarily, without application of mind and without
discussing the entire service record and on no evidence.

Having glance of the above discussions, I am of the considered view that
petitioner has carved out a case for interference.

Viewed thus, the impugned order merits to be quashed. Accordingly, same
is quashed and the writ petition is allowed.

Registrar Judicial to furnish a copy of this judgment to Mr. Gagan Basotra,
learned Additional Advocate General.

Disposed of along with all CMPs.

(MANSOOR AHMAD MIR)
JUDGE.

Jammu:

09-12-2010
Sanjay

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