- (1.) SUDHIR Agarwal, J. Heard Sri K. K. Dubey learned Counsel for the petitioner and learned Standing Counsel.
(2.) SINCE the petitioner has raised a legal issue, though the respondents have not filed any counter- affidavit despite opportunity, learned Counsel for the parties agrees for final disposal of the matter at this stage under the Rules of the Court. A charge-sheet was issued to the petitioner and after holding departmental inquiry, the punishment order was passed on 17-2-2005 by the Sub-Divisional Magistrate, Jhansi, holding charges Nos. 1, 2, 4, 5 and 6 wholly proved and charge No. 3 partly proved and on the basis thereof punishment of compulsory retirement was imposed on the petitioner. Sri Dubey, learned Counsel for the petitioner submitted that once the charges are proved, the punishment provided under the Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as '1999 Rules') can only be awarded and the compulsory retirement is not one of the punishments provided in the said Rules. He further submitted that compulsory retirement based on the result of inquiry where the charges are found proved, is penal in nature and therefore, the order of compulsory retirement as a punishment is permissible only if it is so permissible under the Rules and not otherwise, hence the impugned order is wholly without jurisdiction. He further submitted that the petitioner in fact was appointed by the Collector in the year 1975 but the order impugned in the writ petition has been passed by the Sub-Divisional Magistrate and, therefore also it is void ab initio, having not been passed by the authority who appointed him. In other words, his argument is that though the order impugned in the writ petition is that of compulsory retirement, it amounts to removal from service, hence, could not have been passed by the authority subordinate to one which actually appointed him being violative of Article 311 (1) of the Constitution of India. Per contra, learned Standing Counsel submits that a departmental inquiry was held against the petitioner wherein charges leveled against him were found proved but instead of imposing any major penalty under 1999 Rules, the competent authority found it appropriate to compulsorily retire the petitioner since he had already completed 50 years of age and under Fundamental Rule 56 (hereinafter referred to as 'fr 56') a Government Servant can be compulsorily retired after attaining the age of 50 years if on assessment his work and performance is found to be dead wood.
(3.) HAVING heard the aforesaid submissions and perusing the record, I propose to deal with the first issue as to whether the impugned order of compulsory retirement is valid and permissible under Rules. It is not disputed that the disciplinary matters in respect to the petitioner are governed by 1999 Rules. Rule 3 thereof provides various penalties which may be imposed upon a Government Servant which reads as under : "3. Penalties.- The following penalties may, for good and sufficient reason and is hereinafter provided, be imposed upon the Government Servants : Minor penalties : (i) Censure ; (ii) Withholding of increments for a specified period; (iii) Stoppage at an efficiency bar; (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders; (v) Fine in case of persons holding Group 'd' posts : Provided that the amount of such fine shall in no case exceed twenty five per cent of the months pay in which the fine is imposed. Major Penalties : (i) Withholding of increments with cumulative effect; (ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale; (iii) Removal from the service which does not disqualify from future employment; (iv) Dismissal from the service which disqualifies from future employment. Explanation.- The following shall not amount to penalty within the meaning of this rule, namely : (i) Withholding of increment of a Government Servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service; (ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar ; (iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation ; (iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation. " A perusal of Rule 3 clearly shows that compulsory retirement is not one of the punishment provided therein either as a minor penalty or as a major penalty. In respect to Government servant in the State of U. P. the power of compulsory retirement has been conferred on the appointing authority under PR 56 and the relevant FR 56 (a) for the purpose of present case is reproduced as under : "56. (a) Except as otherwise provided in other clauses of this rule, the date of compulsory retirement of a Government servant, other than a Government servant in inferior service, is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances. ";