- (1.) The Petitioner, who was Agricultural Officer, has filed this writ petition challenging the order dated March 5, 1990 retiring him compulsorily under Fundamental Rule 56 of the Financial Hand Book. Part II, Volume 2 to 4. Parties have exchanged their affidavits. We have heard the learned Counsel for the parties.
(2.) In the counter-affidavit filed on behalf of the Respondents, it has been stated that the impugned order of compulsory retirement has been passed on the basis of the adverse entry given to the Petitioner for the year 1980-81. in this connection, an extract from Paragraph 12 of the counter-affidavit is reproduced below: The integrity of the Petitioner was doubtful and the adverse entry was accordingly made in the year 1980-81 and on the basis of the said entry and assessment of work, the impugned order has been passed in public interest. In Paragraph 7 of the counter-affidavit, reliance, has been placed on the same adverse entry for the year 1980-81 for passing the order of compulsory retirement. in the same paragraph, it has further been stated that the Petitioner's representation against the said entry was rejected by the Government vide order dated 8.7.1988. But the Petitioner has denied the communication of the aforesaid entry to him and the rejection of the representation. in Paragraph 7 of the rejoinder-affidavit, which contains reply of Paragraphs 7 and 8 of the counter-affidavit, the Petitioner has stated that after passing of the impugned order, the adverse entries for the years 1977-78 and 1980-81 were communicated to him vide letter dated 24.7.1990 which was received by him along with a covering letter dated 15.9.1990. Copies of those letters have been filed as Annexure 1 to the rejoinder-affidavit. These letters clearly indicated that those adverse entries were communicated to the Petitioner after the impugned order retiring him compulsorily was passed on 5.3.1990. This Court in order to ascertain true position, directed the learned standing counsel to produce the original record, which was placed before the Court at the time of hearing of the petition. The record does not contain the letter by which the adverse entries for the said two years were communicated to the Petitioner. There is nothing on the record to contradict the averments made by the Petitioner in Paragraph 7 of the rejoinder-affidavit. It is thus clear that the adverse entries for the years 1977-78 and 1980-81 were communicated to the Petitioner much after the Impugned order was passed. The Respondents, therefore, passed the order of compulsory retirement on the basis of the uncommunicated adverse entry.
(3.) Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer and Anr., 1992 AIR(SC) 1020, has laid down that uncommunicated adverse entries can be taken into consideration by the Government while passing the order of compulsory retirement. A learned single Judge of this Court in Krishna Pal Sonkar v. State of U.P. and Anr.,1993 2 UPLBEC 1049, has held that the decision of the Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer (supra) is not applicable to the U.P. Government employees in view of the amendment of Fundamental Rule 56 by U.P. Act of 1976. Relevant extracts from the judgment of the learned single Judge are reproduced below: It has no doubt been held by the Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer and Anr., 1992 AIR(SC) 1020, that even an uncommunicated adverse entry can be taken into consideration while passing an order of compulsory retirement. However, in my opinion this decision is distinguishable, and it will have no application to U.P. Government employees to the extent that it says that an uncommunicated entry can be relied upon. It may be noticed that Baikuntha Nath Das case related to an employee of the Orissa Government. The law in Orissa regarding compulsory retirement is different from the law in U.P. in U.P., the law regarding compulsory retirement was amended by the U.P. Fundamental Rule 56 (Amendment) Act, 1976 which Introduced a new Clause (2) to the U.P. Fundamental Rule 56. This Clause (2) states: (2) in order to be satisfied whether It will be in the public interest to require a Government servant to retire under clause (c), the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration: (a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or (b) an entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or (c) any report of the vigilance establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965. (2A) Every such decision shall be deemed to have been taken in the public interest. A perusal of clause (2) (b) shows that the authority which is to pass the order of compulsory retirement must consider the representation which is pending against an adverse entry. Now there can be no representation if the adverse entry is not communicated. Hence, it is Implicit in the said clause that the entry must be communicated to the concerned employee so that he has an opportunity, of making a representation against it, and an uncommunicated entry cannot be relied upon for passing an order of compulsory retirement." A Division Bench of this Court in State of U.P. v. Mahesh Chandra Maheshwari,1995 71 FLR 84, while approving the aforesaid decision of the learned single Judge in Krishna Pal Sonkar v. State of V. P. (supra) has laid down as follows: However, we are of the opinion that the learned single Judge was right in holding that uncommunicated entries for the year 1987-88 could not have been taken into consideration. in this connection, it may be mentioned that this Court in the case of K.P. Sonkar v. State of U.P. and Anr. has distinguished the judgment of the Hon'ble Supreme Court in the case of Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. In the case of Baikuntha Nath Das (supra), the Supreme Court held that uncommunicated entries can also be taken into consideration for passing the order of compulsory retirement. However, in the case of K. P. Sonkar (supra), this Court distinguished the judgment of the Supreme Court in BaOcuntha Nath Das case and held as follows: It has no doubt been held by the Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer (supra) that even an uncommunicated adverse entry can be taken into consideration while passing an order of compulsory retirement. However, in my opinion, the decision is distinguishable, and it will have no application to U.P. Government employees to the extent that it says that an uncommunicated entry can be relied upon. It may be noticed that Baikuntha Nath Das case related to an employee of the Orissa Government. The law in Orissa regarding compulsory retirement is different from the law in U.P. in U.P. the law regarding compulsory retirement was amended by the U.P. Fundamental Rule 56 (Amendment) Act, 1976 which introduced a new clause (2) to the U.P. Fundamental Rule 56. The reasoning of the learned single Judge was that since clause (2) (b) of the aforesaid U.P. Fundamental Rule 56 (Amendment) Act, 1976 provides that any representation which is pending against an adverse entry is also to be taken into consideration before passing the order of compulsory retirement hence it is implicit that the entry must be communicated, otherwise there can be no representation against it. This Court in K. P. Sonkafs case (supra) held that the decision in Baikuntha Nath Das case would not be applicable to U.P. Government servants because the law in U.P. regarding compulsory retirement is different from that in Orissa. It may be mentioned that Article 309 of the Constitution states that the Governor of a State can make rules regarding Government servants until provision in that behalf is made by or under an Act by the Legislature. Since in U.P., the Legislature has enacted the U.P. Fundamental Rule 56, (Amendment) Act, 1976, hence it is obvious that the earlier rules would not be applicable and the law of compulsory retirement relating to U.P. Government servants is regulated by a U.P. Act, the relevant portion of which has already been quoted above. Thus, in our opinion, the judgment of the Supreme Court in Baikuntha Nath Das case (supra) is distinguishable. It is, therefore, settled so far as State of U.P. is concerned that an uncommunicated adverse entry cannot be taken into consideration by the Government for passing an order of compulsory retirement. Supreme Court in U.P. Jal Nigam and Anr. v. Syed Khadim Waris, 1996 SCC(L&S) 218, wherein the validity of the order of compulsory retirement passed under Fundamental Rule 56 as applicable to the State of U.P. was in issue, has also held that the uncommunicated adverse entry cannot be taken into account while passing an order of compulsory retirement. in this connection, the relevant extracts of the decision of the Supreme Court in the case of U.P. Jal Nigam v. Syed Khadim Waris (supra) are reproduced below: Now, we have been apprised of the total service record of the Respondent, wherefrom we know now about the nature of the said entry and the representation and their placement before the Screening Committee. Another factor which has been discovered, and has rather frankly been put before us by the learned Counsel for the Nigam is that the subsequent year's entry, i.e., for the year 1984-85, is also adverse to the Respondent, but the same has not been communicated to him and yet it was employed in passing the orders of compulsory retirement. It might well be that the said adverse entry of the year 1984-85 by itself or in conjunction with the entry of the year 1983-84 might have influenced the authorities much more than the singular entry of the year 1983-84 to take action. Mention of this particular is not meant to reinforce the basis of the reasoning of the High Court or employed as additional reasoning in support, because that entry has not yet been ripened to be taken into account since it has not been communicated to the Respondent soliciting representation from him. Taking an overall view of the matter and in order to do complete Justice between the parties, we think it appropriate that the impugned order of the High Court, deficient as it is, be upset and the matter be put back to the stage prior to compulsory retirement. Sequelly, it would mean that the Respondent would deemlngly be in the service of the Nigam regarding whom the step of compulsory retirement was being thought of, but subject to it being backed up by the entire service record on completion, after the adverse entry of the year 1984-85 stands communicated to him, against which he would have the opportunity to represent and consideration, and after a final view is taken. We make it clear that by virtue of this order, the deemed continuance of the Respondent in service would not be a bar to the taking of the step of compulsory retirement as if at the age of 50 years subject to the final backup of the record. Thus, in order to achieve the above result, we grant leave and in the same breath allow the appeal, setting aside the impugned order of the High Court and streamlining the cause between the parties in the manner stated above. It is necessary for the Nigam to communicate to the Respondent the entry of the year 1984-85 and attract representation from him time-bound. It may, then pass afresh order of compulsory retirement on the basis of the entire record, should the facts and circumstances justify, which order would then govern the fate of the case relating back to the date of the original order. The Supreme Court accordingly sent back the case to the Government for fresh decision after communicating the adverse entry for the year 1984-85 to the employee giving him an opportunity to make representation against the same.;