Markandey Katju, J. - (1.) THE petitioner was initially appointed as a copyist in the Collectorate Allahabad by the order of the Collector dated 11 -8 -1985. It is alleged that in the year 1986 a departmental proceeding was started against the petitioner with regard to the allegation made in the report of the Kumbh Mela Additional Incharge pertaining to the year 1976 -77 about which a criminal case had also been registered against the petitioner. The petitioner was charge -sheeted by the letter dated 23 -4 -1986, to which the petitioner replied. However, it is alleged that thereafter the petitioner was not given opportunity of hearing by the Enquiry Officer, who submitted an ex parte report, on the basis of which the District Magistrate Allahabad passed an order dated 27 -3 -1989 (Annexure No. 2 to this writ petition). A perusal of Annexure 2 shows that there was some allegation against the petitioner in connection with the Kumbh Mela of the year 1976 -77. Against the order of the District Magistrate dated 27 -3 -1989 the petitioner filed an appeal to the Commissioner who remanded the matter by the order dated 22 -1 -1990 regarding withholding the money, but dismissed the appeal regarding the rest of the order of the District Magistrate. Thereafter the petitioner received the impugned order of compulsory retirement dated 17 -2 -1990, Annexure No. 4, to this writ petition. It is alleged in para 23 of the writ petition that the only material used by the respondents for passing the impugned order is the order passed by the Commissioner.
(2.) COUNSEL for the petitioner has argued firstly that the impugned order of compulsory retirement has been passed only on the basis of the incident of 1977 regarding which the petitioner has already been punished. He contends that on the basis of some old incident which occurred 13 years before passing the impugned order he cannot be compulsorily retired in 1990, particularly when he has already been punished for the same. The petitioner has also contended that there is no adverse entries for the last 20 years against him. Also, in the criminal cases he has been acquitted. A counter affidavit has been filed in which it is admitted that the only allegation against the petitioner on the basis of which the impugned order of compulsory retirement has been passed is the incident of 1977. It has no doubt been alleged in para 8 of the counter affidavit that the petitioner received adverse entries in 1957 -58, 1958 -59 and 1961 -62 and 1968 -69 but these in my opinion cannot be looked into, in view of the decision of the Hon'ble Supreme Court in Brij Mohan Singh Chopra v. State of Punjab : AIR 1987 SC 942, where the Hon'ble Supreme Court has held that the entries more than five years old cannot be looked into.
(3.) IN this case the allegation in Para 23 of the writ petition is that the only basis for passing the impugned order was the order of the Commissioner which was based on the incident of 1977. This allegation is not disputed in Para 9 of the counter affidavit. Thus I take it that the only basis for passing the impugned order is the allegation regarding the incident of the year 1977 In my opinion this allegation cannot be the basis for passing the impugned order for two reasons. Firstly it is an old incident, 13 years prior to the impugned order. In my opinion the principle laid down by the Hon'ble Supreme Court in its above mentioned judgment deserves to be extended and I lay down a consequential principle that if the basis of passing an order of compulsory retirement is an old incident, it cannot be the ground of passing an order of compulsory retirement. If the entries for the last five years have been good, then merely because the employee had committed some improper act before five years that cannot ordinarily basis for passing an order of compulsory retirement. Secondly I am also of the opinion that the impugned order is bad in law because the petitioner has already been punished by the order of the Commissioner for the incident of 1977. It is no doubt true that an order of compulsory retirement is not an order of punishment (unless it has been passed on the basis of misconduct) but the facts of the present case disclose that the petitioner was charge -sheeted with regard to the incident of the year 1977 in 1986, and this departmental enquiry resulted in an order of minor punishment. Since the sole basis of passing the impugned order is the incident of 1977 (for which the petitioner has already been punished) the impugned order amounts to double punishment. In Ram Ekbal Sharma v. State of Bihar : AIR 1990 SC 1368, the Supreme Court held that if the sole basis of an order of compulsory retirement is a report of the Deputy Development Commissioner alleging financial irregularities by the petitioner, such on order is punitive in nature.;