Sushil Kumar Hedau Vs State Of Chhattisgarh

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 407 of 2018

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Digitally signed by GOURI GOURI MUDALIAR MUDALIAR Date: 2025.02.10 20:16:57 +0530

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Order reserved on 12/11/2024

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Order delivered on 7/02/2025

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Sushil Kumar Hedau Son Of Late Shri Banshi Lal Hedau, Aged About 48 Years Earlier Posted as Draftsman At Regional Office Geology And Mining Department, Raipur, District Raipur, Chhattisgarh. R/o House No. 674/1, Ward No. 41, Subhash Nagar, Durg, District Durg, Chhattisgarh.

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... Petitioner

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versus

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1. State Of Chhattisgarh Through The Secretary, Geology And Mining Department, Mantralaya, Mahanadi Bhawan, Naya Raipur, Chhattisgarh 2. Director, Directorate of Geology And Mining Block-IV, 1st And IInd Floor, Indrawati Bhawan, Raipur, District Raipur, Chhattisgarh.

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... Respondents

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For Petitioner : Shri C. Jayant K. Rao, Advocate. For : Shri Shaleen Singh Baghel, Deputy Government Respondent/State Advocate.

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Hon’ble Shri Justice Amitendra Kishore Prasad

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CAV Order

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Challenge in this petition is to the order dated 4/10/2017 issued by the Director, Directorate of Geology and Mining, State of Chhattisgarh. By the said order, the petitioner has been compulsorily retired stating that he has completed 20 years of service as on 21/07/2013, hence as per Sub Rule (1) of Clause (b) of Rule 42 of the Chhattisgarh Civil Services

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(Pension) Rules, 1976 in the public interest, the petitioner is being compulsorily retired with effect from 4/10/2017 with the approval of the State Government. The petitioner being aggrieved by the aforesaid order, has preferred this petition with the following reliefs:-

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“(i)This Hon'ble Court may kindly be pleased to set-aside/ quash the Copy of impugned order Dated 04.10.2017 (P/1) issued by Director, Directorate Of Geology & Mining, State of C.G. and to reinstate the petitioner forthwith and further to count the services of the petitioner on continuous basis;

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(ii)This Hon'ble Court may kindly be pleased to direct the respondent to pay the petitioner's salary for inter-regnum period along-with interest;

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(iii)This Hon'ble Court may-kindly be pleased to issue any other order or orders, writ or writs, direction or directions as this Hon'ble court may deem fit in the facts and circumstances of the case in favor of the petitioners, in the interest of justice. (iv)That, this Hon'ble Court may kindly be pleased to set-aside the order dated 29.08.2018 (Annexure R/3), whereby the Review Committee has not consider the application of the petitioner.”

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The facts as projected by the petitioner is that vide order dated 29/06/1993 he was appointed as Tracer and was posted in the office of Director, Directorate of Geology and Mining, Sub Office at Jagdalpur, Bastar. Subsequently, the petitioner was promoted to the post of Draftsman and was working in the Directorate of Geology and Mining, Raipur. During the said posting on 27/01/2011 a show cause notice was issued to the petitioner stating that he is negligent in discharge of his duty and is absent also. The petitioner filed his reply on 18/03/2011, however, since the authorities were not satisfied, a charge sheet was issued against the petitioner and a departmental enquiry was

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contemplated against him and in the departmental enquiry, he was punished by withholding one increment with cumulative effect while observing that if within two years, the work of the petitioner will be improved, then withholding of one increment with cumulative effect will be converted as non-cumulative effect. Vide letter dated 17/07/2013 a show cause notice was issued to the petitioner stating that for 6^th Economic Calculation, 2012 the petitioner was relieved but he has not joined. This notice was also replied by the petitioner, however again a departmental enquiry was initiated and in the said departmental enquiry, the petitioner was imposed with a censure and he was further warned for future. On 31/12/2016 an order was issued and the petitioner was granted “Kramonnat Vetanman” with effect from 31/07/2010. In this background, vide impugned order dated 4/10/2017 the petitioner was compulsorily retired stating that he has completed 20 years of service, therefore as per Sub Rule (1) of Clause (b) of Rule 42 of the Chhattisgarh Civil Services (Pension) Rules, 1976. According to the petitioner, his Annual Confidential Report (ACR) of the year 2013 was average, in the year 2014, 2015, 2016 and 2017 it was good. Since the ACR’s are worth and are in favour of the petitioner, therefore the order of compulsory retirement is not in accordance with law. According to the petitioner, the order of compulsory retirement is not in accordance with law as the enquiry was initiated six months prior to the preceding year before first July, however in the present matter according to the policy of the General Administration Department, State of Chhattisgarh dated 25/04/2017 the petitioner was compulsorily retired whereas the policy of the State Government should be prospective and not retrospective. There is nothing on record to show

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that the petitioner was required to be compulsorily retired. Hence, this petition has been filed.

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State of Chhattisgarh has filed its reply stating that the grounds raised by the petitioner that he should have been given opportunity of hearing before passing order of compulsory retirement and the same is without any basis. The compulsory retirement does not amount to any punishment, or dismissal or removal from service, hence it would not attract Article 311 of the Constitution of India or Rule 55 of the Chhattisgarh Civil Service (Classification, Control and Appeal) Rules. It also does not involve civil consequences, as such, the ground that the petitioner has not been granted opportunity of hearing before passing order for compulsory retirement is not in accordance with law. According to the Rules of the Chhattisgarh Civil Service (Pension Rules), 1976 the employee can be compulsorily retired on his/her attaining age of 50 years or upon completion of 20 years of service. The fundamental Rules 1956 provide right to the State Government to compulsorily retire any government employee who is not fit in the public interest. The State Government has passed a policy dated 25/04/2017 which is in respect to achieve smooth functioning of the executive and to “chopping of dead wood”. The purpose of circular dated 25/04/2017 is to compulsorily retire inefficient and non performing persons, further the persons who are engaged in corrupt tactics in which sufficient evidence is not available to remove them from service. The State Government has constituted a Committee as per the policy to scrutinize the employee whose performance are not good and whose ACR’s are also not worth. The Committee constituted has fixed certain criteria in order to pass orders for compulsory retirement. Those criteria are

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doubtful honesty and integrity, physically not fit, evaluation of the working capacity, the ACR’s during the entire service period is below ‘B’ grade. In the present matter vide meeting dated 17/08/2017 of the Committee it has made a recommendation for compulsorily retiring the petitioner. There were as many as 38 grounds were found for retiring the petitioner compulsorily and after due consideration, the petitioner has been compulsorily retired which is neither illegal nor arbitrary, as such, no interference is required for.

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Learned counsel for the petitioner vehemently submitted that the petitioner has been compulsorily retired without there being any reason, on the one hand he was granted “Kramonnat Vetanman” vide order dated 31/12/2016 and thereafter without there being any reason vide order dated 4/10/2017 he has been compulsorily retired. His ACR’s are worth for consideration, however it has not been considered. The circular dated 25/04/2017 has been illegally acted upon in the case of the petitioner. There is violation of principles of natural justice, hence the impugned order is required to be set aside and the petition is required to be allowed.

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On the other hand, learned counsel for the respondent/State has submitted that the petitioner was a dead wood in the department. Against him two departmental enquiry were initiated in which he was punished. His entire service of 20 years is not worth to give him an opportunity to serve for his entire service career and he should have been given opportunity to work till his superannuation. The ACR’s of the petitioner was also not worth and it was below ‘B’ grade and hence after evaluating honesty and integrity, physical fitness, evaluation of work capacity and the ACR’s it was found that the petitioner is no

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longer required in service and he was required to be compulsorily retired.

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I have heard learned counsel for the parties and have perused the documents appended to the petition. I have carefully examined the impugned order dated 4/10/2017 by which the petitioner was compulsorily retired as per Rule 2 (A) of Fundamental Rules 56 and Rule 42 Sub Rule (1) Part-B of the Rule 42 of the Chhattisgarh Civil Service (Pension) Rules, 1976. Admittedly in 20 years of service, two departmental enquiries were initiated against the petitioner in which he was found guilty. He was punished while imposing one major punishment and one minor punishment. The entire service career of the petitioner was evaluated by the Committee constituted by the department in which it was found that the service of the petitioner is no longer required as his honesty and integrity is doubtful. He was also not physically fit and the working capacity of the petitioner was also not found to be worth. The Annual Confidential Report during the entire service period is below ‘B’ grade and the petitioner who was a class-III employee in the department is infact a dead wood according to the report of the Committee. Policy dated 25/04/2017 is infact formulated to remove the employee who are not found fit for service in the public interest.

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Hon’ble Supreme Court in the matter of Rajesh Gupta vs. State of Jammu and Kashmir and others reported in (2013) 3 SCC 514 has considered the principles governing field in respect of compulsory retirement and has held as under :

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20 . The principles on which a government servant can be ordered to be compulsorily retired were authoritatively laid down by this Court in the case of Baikuntha Nath Das And Anr vs Chief

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Distt. Medical Officer, Baripada reported in (1992) 2 SCC 299. In Paragraph 34, the principles have been summed up as follows :

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“34. The following principles emerge from the above discussion:

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(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

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(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.

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(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.

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(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before [pic]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.

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(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.

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Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above. 21 . The aforesaid principles have been re-examined and reiterated by this Court in the case of Nand Kumar Verma vs.

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State of Jharkhand repored in (2012) 3 SCC 580. The principles have been restated as follows :-

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It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs.

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The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.

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22 . In the case of State of Gujarat vs. Umedbhai M.Patel reported in 2 (200!) 3 SCC 314, the same principles were reiterated in the following words :-

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“11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:

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(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.

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(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

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(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement

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can be passed after having due regard to the entire service record of the officer.

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(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

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(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

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(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

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(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.

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(viii) Compulsory retirement shall not be imposed as a punitive measure.”

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24 . In Jugal Chandra Saikia vs. State of Assam reported in (2003) 4 SCC 59, this Court reiterated the principles in the following words:-

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“6. . . . It cannot be disputed that the passing of an order of compulsory retirement depends on the subjective satisfaction of the competent authority, of course on objective consideration. Unless it is shown that the order of compulsory retirement was passed arbitrarily and without application of mind or that such formation of opinion to retire compulsorily was based on no evidence or that the order of compulsory retirement was totally perverse, the court cannot interfere.”

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Examining the record of the appellant therein and the material that was placed before the Screening Committee, the High Court as well as this Court came to the conclusion that on an objective consideration of the material on the record it was not possible to accept the argument that the Screening Committee had acted only on the basis of the report of the Rao Committee. It was found that the recommendations of the Screening Committee were based on relevant material.”

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Further, Hon’ble the Supreme Court considered aforesaid aspects in

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the matter of Central Industrial Security Force vs. HC (GD) Om

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Prakash reported in (2022) 5 SCC 100 and has held as under :

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“3. Hon’ble Supreme Court in the matter of Baikuntha Nath Das and Another v. Chief District Medical Officer, Baripada and Another reported in (1992) 2 SCC 299 wherein it has been held that the order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. The order of compulsory retirement is in public interest and is passed on the subjective satisfaction of the Government and is not liable to be quashed by the Court merely for the reason that uncommunicated adverse remarks were taken into consideration.

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This Court approved the earlier judgment of this Court reported as Union of India v. M. E. Reddy and Another reported in (1980) 2 SCC 15 wherein it was held as under:

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“12. An order of compulsory retirement on one hand causes no prejudice to the government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the Services. The employees should try to understand the true spirit behind the rule which is not to penalise them but amounts just to a fruitful incident of the Service made in the larger interest of the country. Even if the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to his country, for every good cause claims its martyr.”

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After the judgment in Baikuntha Nath Das (supra), Hon’ble Supreme Court in the matter of Posts and Telegraphs Board and Others v. C.S.N. Murthy reported in (1992) 2 SCC 317 held that the courts would not interfere with the exercise of the power of compulsory retirement if arrived at bonafidely and on the basis of material available on record. The Court held as under:

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“5. …. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record. No mala fides have been urged in the present case. The only suggestion of the High Court is that the record discloses no material which would justify the action taken against the respondent. We are unable to agree. In our opinion, there was material which showed that the efficiency of the petitioner was slackening in the last two years of the period under review

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and it is, therefore, not possible for us to fault the conclusion of the department as being mala fide, perverse, arbitrary or unreasonable.”

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Hon’ble the Supreme Court reported in Union of India and Others v. Dulal Dutt reported in (1993) 2 SCC 179 examined the order of compulsory retirement of a Controller of Stores in Indian Railway. It was held that an order of compulsory retirement is not an order of punishment. It is a prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government and that it is not required to be a speaking order. This Court held as under:

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“18. It will be noticed that the Tribunal completely erred in assuming, in the circumstances of the case, that there ought to have been a speaking order for compulsory retirement. This Court, has been repeatedly emphasising right from the case of R.L. Butail v. Union of India [(1970) 2 SCC 876] and Union of India v. J.N. Sinha [(1970) 2 SCC 458] that an order of a compulsory retirement is not an order of punishment. It is actually a prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government. Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order. From the very order of the Tribunal it is clear that the Government had, before it, the report of the Review Committee yet it thought it fit of compulsorily retiring the respondent. The order cannot be called either mala fide or arbitrary in law.”

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In light of aforesaid principles laid down by the Hon’ble Supreme Court

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and the facts as narrated in the case as well as the order for compulsory retirement passed against the petitioner, this Court is having no hesitation in confirming the order of compulsory retirement passed against the petitioner, holding that the order passed against the petitioner for compulsory retirement is not based on any arbitrary or capracious ground and there is no material of malafide or overlooking any relevant material as such in the narrow scope of interference in the judicial review, this Court do not find any ground for interference in the order for compulsory retirement as such, this petition being devoid of

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merits is liable to be dismissed and accordingly dismissed with no costs.

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Sd/-

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(Amitendra Kishore Prasad)

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Judge

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gouri