Case Note & Summary
The dispute concerned the compulsory retirement of an Executive Engineer of Uttar Pradesh Jal Nigam at the age of fifty under Rule 56-C of the Financial Hand Book Part II, Volumes 2 to 4. The respondent challenged the order before the Lucknow Bench of the Allahabad High Court by way of a writ petition. The High Court quashed the compulsory retirement order primarily on the ground that an adverse entry for the year 1983-84, though communicated to the respondent on 9-4-1985, was taken into account while the respondent's representation against that entry was still pending before the Nigam. The High Court also blamed the Nigam for not producing the text of the 1983-84 entry to enable the court to assess its nature and seriousness. The Nigam contended before the Supreme Court that the entry was adverted to in its counter affidavit and that the respondent's representation had been placed before the Screening Committee before action was taken, but the supportive records were not produced before the High Court. During proceedings before the Supreme Court, learned counsel for the Nigam frankly disclosed that a subsequent adverse entry for the year 1984-85 was also adverse to the respondent but had not been communicated to him, and yet it was employed in passing the compulsory retirement order. The Supreme Court observed that the uncommunicated 1984-85 entry could not have been taken into account because it had not been communicated to the respondent and no representation had been solicited. Taking an overall view to do complete justice, the Supreme Court set aside the High Court order and remitted the matter back to the stage prior to compulsory retirement. The Court directed the Nigam to communicate the 1984-85 adverse entry to the respondent, receive his time-bound representation, and then pass a fresh order on the basis of the entire service record if the facts and circumstances justified. The Court clarified that the respondent could not be taken back in service due to his having attained the age of 58 years in the meantime, and that he need not be paid anything more than his pensionary benefits until any variation was warranted. The Court ordered expeditious disposal and made no order as to costs.
Headnote
A) Service Law - Compulsory Retirement - Adverse Entry Pending Representation - Financial Hand Book Part II, Volumes 2 to 4, Rule 56-C - High Court quashed compulsory retirement on the ground that adverse entry for 1983-84, communicated on 9-4-1985, was used while its representation was pending; Supreme Court noted this basis but found the High Court order deficient for not examining official record; held that matter should be remitted to allow reconsideration on complete record after communicating uncommunicated 1984-85 entry. Held that adverse entry pending representation cannot be used until representation is decided. (Paras 1-2) B) Service Law - Compulsory Retirement - Uncommunicated Adverse Entry - Financial Hand Book Part II, Volumes 2 to 4, Rule 56-C - Uncommunicated adverse entry for 1984-85 was also used in passing compulsory retirement order; such entry cannot be taken into account because employee had no opportunity to represent; it was not ripened for consideration. Supreme Court directed Nigam to communicate the 1984-85 entry, receive time-bound representation, and then pass fresh order on entire record if justified; order would relate back to original date; employee not to be taken back in service due to age 58 and only pensionary benefits till variation. Held that uncommunicated adverse entry cannot be used for compulsory retirement. (Paras 1-2)
Issue of Consideration
Whether the High Court was justified in quashing the compulsory retirement order on the ground that an adverse entry for 1983-84 was considered while its representation was pending, and whether an uncommunicated adverse entry for 1984-85 could be taken into account.
Final Decision
Appeal allowed; impugned High Court order set aside; matter remitted to Uttar Pradesh Jal Nigam with direction to communicate 1984-85 adverse entry, receive time-bound representation, and pass fresh order on entire record if justified; no order as to costs.
Law Points
- Uncommunicated adverse entry cannot be used for compulsory retirement
- adverse entry pending representation cannot be used until representation is decided
- compulsory retirement must be based on complete service record after communication and consideration of all adverse entries
- rule 56-C of Financial Hand Book Part II
- Volumes 2 to 4 governs compulsory retirement
