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RAM NATH versus STATE OF U.P. THRU' CHIEF SECY. (LABOUR) GOVT. OF UP & ORS.

High Court of Judicature at Allahabad

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Ram Nath v. State Of U.P. Thru' Chief Secy. (Labour) Govt. Of Up & Ors. - WRIT - A No. 19741 of 2002 [2004] RD-AH 225 (23 April 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                         Judgment reserved on 10.3.2004

                                                         Judgment delivered on 23.4.2004

Civil Misc. Writ Petition No. 19741 of 2002.

Ram Nath                                                          ...                Petitioner

Versus

State of U.P. & others.                                       ...               Respondents

Hon. Sunil Ambwani,J.

The petitioner has prayed for quashing the order dated 24.4.2002 passed by Labour Commissioner, U.P. in exercise of powers under Fundamental Rules 56(c) of Financial Hand Book Vol II Part II to IV, compulsorily retiring petitioner from service serving as Welfare Superintendent in the office of Labour Commissioner, U.P. in public interest with effect from the date of the issuance of the order with entitlement to  three months pay and allowance.

I have heard Sri Dinesh Pathak for petitioner and learned Standing Counsel.

The facts giving rise to this petition are that the petitioner was appointed on 8.7.1972 as clerk in the Labour Department..  He was promoted to the post of Welfare Superintendent vide order dated 2.10.1986 and thereafter  as Labour Enforcement Officer on 19.12.1989 in pursuance of orders passed in writ petition No. 5744 of 1986 in the State of U.P.  Vs. O.N. Awasthi, determining seniority the petitioner was reverted to the post of Welfare Superintendent.    On the very next date, on 2.5.2000, six out of 25 reverted officers were promoted excluding the petitioner and others.  The petitioner has challenged these orders in writ petition No. 906 (SB) of 2000 in Lucknow Bench in which an interim order was issued on 20.6.2000 directing Labour Commissioner, U.P., to decide petitioner's representation. The order rejecting his representation dated 11.5.2000 is also under challenge in a writ petition filed before Lucknow Bench of this Court.

On 24.4.2000, the Labour Commissioner passed an order compulsorily retiring petitioner under Fundamental Rule 56(c) of F.H.B. Vol. II Part II to IV.  The petitioner had received  adverse entries in the year 1991-92, 1992-93, and 1993-94 .  It is contended that the entry for the year 1991-92 was  not communicated to the petitioner, and that he acquired knowledge of this entry only  when his representation was

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decided by Labour Commissioner  on 20.6.2001 in pursuance of directions issued in writ petition No. 906 (SB) of 2000.  In this order it was found that the petitioner was not given any adverse entry after 1993-94, but since he was not substantively appointed as Labour Enforcement Officer and had not completed five years of service as such, he was not entitled for promotion.  It is contended that the aforesaid adverse entries were given about 10 years ago, after which petitioner was not communicated with any adverse entry could not be made the basis of subjective satisfaction for compulsory retirement.  

On 12.5.2003, after hearing the writ petition in part,  the respondents were granted time to file supplementary affidavit enclosing therewith entries from 1994-95  to 1999-2000.  In compliance with the order a supplementary counter affidavit of Sri Chandra Mani Lal Maurya, Additional Labour Commissioner has been filed enclosing the character roll entries of the petitioner for the year 1994-95 ( 5.7.1994  to 31.3.1995), 1995-96, 1996-97, 1997-98 (1.4.1997 to 31.3.1998) 1998-99 (1.4.1998 to 31.3.1999), 1999 (1.4.1999 to 25.10.1999) and 1999-2000 (26.10.1994 to 31.3.2000).  The entry for the year 1994-95 records his work as Labour Officer, Unnao as "satisfactory". The integrity was certified.  He was given the remarks as good.  For the year 1995-96 he was given a similar satisfactory  report and was rated as a good officer.  For the year 1996-97, he was found to be  courteous and hard working.  Necessary assessment of work could not be made as the details were not produced.   The integrity was certified and he was rated to be a good officer.  The entry for year 1997-98, records his performance in detail.  The Deputy Labour Commissioner, Lucknow, Region Lucknow found him to be a disciplined courteous  and hard working officer who performs his work with devotion and due dispatch.   His behavior with senior officers, colleague, employees and public was found to be courteous, and his work and conduct was found to be excellent.   The Officer was rated to be an excellent officer. The entry was approved by the Deputy Labour Commissioner. For the year 1998-99 the Deputy Labour Commissioner found him to be honest and courteous officer, took interest in the work and caused sufficient number of inspections and registration.  His integrity was certified and he

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was found to be an excellent officer.  The entry received approval from the  Additional Labour Commission.  

The next entry is for the year 199 (1.4.1999 to 25.10.1999).  The Deputy Labour Commissioner found that the petitioner did not show interest in the work.  His behavour towards representatives of workmen and superior officers was not courteous,  and that he disobeyed the orders of the Senior Officers and Government Orders.  His work was found to be ordinary.  The  integrity was certified.  The approving officer rated his work as 'bad'.  For the remaining period of the year 1999-2000 (26.10.1999 to 31.3.2000) once again the Deputy Labour Commissioner reported that he did not take  sufficient interest in his work.  His conduct with representative of workmen and general public was ordinary and that he can not be rated to be a efficient Labour Enforcement Officer.  His work and conduct was found to be very ordinary and he was rated as 'unsatisfactory'.  His integrity was certified.  The last annexure to the supplementary counter affidavit is the receipt of the letter No. 758 dated 15.12.2000, which is said to be the communication of the adverse entries of the year 1999-2000 to the petitioner.

Sri Dinesh Pathak submits that the petitioner was awarded good and excellent entries from 1994-95 to 1998-99 and that  it was only for the last year  that his work and conduct was reported to be bad and unsatisfactory . He submits that these entries were not communicated to the petitioner and that the respondents could not have taken into account these entries to retire him in public interest.  Placing reliance upon the judgment of Supreme Court in Baikunth Nath Das Vs. Chief District Medical Officer and another AIR 1992 SC 1020, it was argued that the order of compulsory retirement is arbitrary in the sense that no reasonable persons will form the requisite opinion, on the given material to rate the petitioner an officer who was at dead wood to be weeded out from the service and to be retired compulsorily in public interest.  

Learned Standing Counsel, representing respondents relied upon adverse report given to the petitioner in 1991-92, 1992-93 and 1993-94 as well as the entries of the year 1999-2000 in which his work and conduct was found to be bad and unsatisfactory.  The Screening Committee in its meeting dated 23.3.2000 considered the entire record.  

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The  report of the screening committee is annexed as Annexure-2 to the counter affidavit.  The Committee found that the annual entries of the year 1991-92, 1992-93, 1993-94 and 1999-2000 are bad.  These entries also reflect his work and conduct.  These entries are of serious nature.  The representations filed by petitioner against these entries have been disposed of  and that no representation is pending at present.   All these entries established that the petitioner is not performing his duties with full devotion and is not making any contribution to the department.  The Committee as such recommended for his compulsory retirement.

Learned Standing Counsel submits that taking into account the entries for the last ten years it was found that four entries were positively bad and that the last entry for the year 1999-2000 established that the petitioner had lost his utility to the department and that the assessment made by the Screening Committee is not arbitrary or capricious.

In Baikunth Nath Das (supra), the Supreme Court has laid down following principles for undertaking judicial review of the orders of compulsory retirement.  These  are quoted as below:

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

(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 of this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) malafide, 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, it 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 favorable 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.  The circumstances 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. "

In the present case, the Screening Committee took into  consideration the entries for the last 10 years.  The entries for the year 1991-92,1992-93,1993-94 did rate the petitioner to be a good officer.  In these entries his work and conduct was discussed in detail.  The registration, inspections and prosecutions were found to be insufficient.  He was found to  have committed gross errors and illegalities in his inspections.  He did not improve his work, inspite of warning and did not take interest in compliance with the orders of the superior officers.  It was found that he did not take any interest in participating in annual meetings and that a number of complaints were received against him in the year 1992-93.  The details recorded in his inspection reports  were found to be incorrect.  The petitioners representation against the entries of the year 1992-93 was reported by the Additional Labour Commissioner, U.P. on 25.10.19996.  His representation against the adverse entry for the year 1993-94 was rejected by the Additional Labour Commissioner on 6.4.2002.  The petitioner's work and conduct thereafter improved in the year 1994-95 to 1998-99, and that once against in the year 1999-2000, he was not rated to be a good officer.  Although the two entries of the year 1999-2000 recorded in two parts did not give details of the work and conduct, these entries reported by the Deputy Labour Commissioner were approved by the Assessing Authority and the Approving Authority.

The petitioner has denied that he was communicated with  the entry of the year 1999-2000.  The denial ,however, does not make any difference.  The fifth principle laid down in Baikunth Nath Das case for judicial review gives sufficient guidelines in this regard.  The order of compulsorily retirement cannot be quashed merely on the ground that the adverse remarks were not communicated. In Jugul Chandra Saikia Vs. State of Assam and another (2003) 4 SCC 59, relying upon Baikunth Nath Das case, it was held that if any malafides are not attributed and the Screening Committee consisted by higher officer had produced the entire records, and the order of compulsorily retirement is based on the

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subjective satisfaction of the competent authority, no interference should be made unless it is shown that the order was made  arbitrarily or without application of mind or that such formation of opinion to retire compulsorily was not based on any evidence or that the order of compulsory retirement is wholly  perverse.    Similar view was taken by the Supreme Court in State of U.P.  Versus Raj Kishore Goel, (2001), 10 SCC 183.

  The judgments cited by counsel for petitioner namely Dharam Pal Singh Vs. State of U.P. and others  (2001) 3 UPLBEC 2585; Bulaki Ram Vs. State of U.P. and others, 1998 UPLBEC 352; Virendra Singh Vs. State of U.P. and other 347,  Raj Kumar Versus State of U.P., 2001(3) UPLBEC 2043 and Phool Chandra Yadav Vs. State of U.P. and others 2001(2) UPLBEC1079 are not applicable to the present case as these judgments were given in their own facts and  assessment of service records.  The principle of law whether an un-communicated entry  can be the basis of issuing order has been clarified by the Supreme Court in the case of Baikunth Nath Das.

In this the present case  malafides have not been attributed . The assessment of the Screening Committee was not based only on the entries for the year 1999-2000.  The Committee had also taken into consideration entries for the year 1991-92, 1992-93 and 1993-94.  The assessment of the committee is neither arbitrary or perverse.  The submission of the counsel for the petitioner that the entries of the year 1999-2000 were recorded on the ground that the petitioner had gone to the Court to seek relief for his promotion does not appears to be correct.   The representations against the petitioners reversion was rejected and that the petitioner did not succeed in getting any interim order from the Lucknow Bench of this Court.  In any case,  the petitioner has not attributed  any motive to any particular officer to support these allegations.  

For the aforesaid reasons, the writ petition is dismissed.

Dt. 23.4.2004.

BM/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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