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Judgment
Bala Krishna Narayana, J.—Heard Sri Vivek Manishi Shukla, learned Counsel for the petitioner and Sri L.P. Shukla, the learned Counsel appearing for the opposite parties.
The instant writ petition has been filed by the petitioner against the order dated 30.11.1998 passed by the opposite party No. 1 by which the petitioner has been retired prematurely on the ground of the petitioner becoming blind.
The facts of the case are that the petitioner was appointed as Chaukidar on 1.1.1976 in U.P. Forest Corporation, Lakhimpur Kheri by the Divisional Sales Manager of U.P. Forest Corporation (hereinafter referred to the ''Corporation''). The petitioner was born in November, 1945 and as such in accordance with the relevant Rules and Regulations applicable to the employees of U.P. Forest Corporation the petitioner was entitled to continue in service till the age of 60 years, which is the age of superannuation provided for the Class-IV employees of the Corporation under the relevant Rules and Regulations, it is admitted to the parties that the matter of superannuation of the employees of U.P. Forest Corporation are governed by the Fundamental Rule 56 of Financial Handbook.
It has been argued by the learned Counsel for the petitioner that an employee of U.P. Forest Corporation can be retired compulsorily or prematurely in public interest alone under the Fundamental Rule 56 (c) of Financial Handbook and not on the ground of blindness and since there is no other provision either under the Fundamental Rule or the Rules or Regulations governing the service conditions of the employees of U.P. Forest Corporation, the impugned order is liable to be treated as an order under Fundamental Rules 56(c) of Financial Handbook and its validity is to be examined in the light of law laid down with regard to the scope of interference by the Courts with an order of compulsory retirement.
It has been further urged by the learned Counsel for the petitioner that the impugned order has been passed by the opposite party No. 1 in an arbitrary exercise or power as there was absolutely no evidence before the opposite party No. 1, on the basis of which the opposite party No. 1 could have formed the opinion to retire the petitioner from service prematurely on account of his blindness. It has also been contended by the petitioner''s counsel that neither any Screening Committee was constituted for considering the case of the petitioner for premature retirement nor the petitioner was examined by Medical Board prior to the passing of the order of premature retirement.
It has also been argued by the learned Counsel for the petitioner that the opposite party No. 1 prior to passing the impugned order had not afforded any opportunity to the petitioner to put his version before him that the petitioner was not blind.
The learned Counsel for the petitioner in support of his contention that the impugned order of premature retirement is liable to be set aside as the subjective satisfaction arrived at by the opposite party No. 1 to retire the petitioner prematurely is not based upon any evidence, has relied upon the case of Hon''ble Supreme Court in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, of the said case reads as hereunder:
"34. (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 or this Court would not examine the matter as an Appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide 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 if it is found to be a perverse order.
(iv) The Government (or 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 favourable 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.
(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. That circumstance by itself cannot be a basis for interference."
The learned Counsel for the petitioner has also relied upon the decisions of the Apex Court in K. Kandaswamy Vs. Union of India, and S.R. Venkataraman v. Union of India 1978 (37) FLR 164 (SC).
In K. Kandaswamy v. Union of India (supra) the Hon''ble Supreme Court has held that while exercising the power under Rule 56 (i) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest The Government is given power to energies its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. When the appropriate authority forms bona fide opinion that compulsory retirement of the Government employee is in the public interest, Court would not interfere with the order. In identical case of S.R. Venkataraman v. Union of India (supra) the Hon''ble Supreme Court has held that the order of compulsory retirement as a gross abuse of power as there was nothing on the record to justify and support the order.
Sri L.P. Shukla, the learned Counsel appearing on behalf of the opposite parties has argued that the impugned order of premature retirement does not suffer from any infirmity and since an order of compulsory/premature retirement is not a punishment as it implies no stigma nor any suggestion of misbehavior, the principles of natural justice have no place in the context of an order of compulsory retirement. He has further argued that since the nature of the function is not quasi-judicial in nature and because the action has to be taken on the subjective satisfaction of the Corporation, there is no room for importing the audi alteram partem rule of the natural justice in such a case. However, despite his best efforts the learned Counsel for the opposite parties could not place before this Court any material on the basis of which the opposite party No. 1 had arrived at the subjective satisfaction to retire the petitioner prematurely on account of his blindness.
I have examined the rival contentions advanced by the learned Counsel for the parties and examined the case law cited by them and perused the record.
After considering the rival contentions advanced by the learned Counsel for both the parties and examining the case law cited by them and perusing the record. I am of the opinion that in the present case, the opinion formed by the opposite party No. 3 to retire the petitioner prematurely on the ground of blindness is based on no evidence and is consequently an arbitrary decision. The argument raised by the learned Counsel for the Corporation that the order of compulsory retirement is not punishment and implies no stigma nor any suggestion of any misbehavior could have to rescue of the impugned order only the opinion for retiring the petitioner prematurely was passed on some evidence.
The argument of the learned Counsel for the opposite parties that the principles of natural justice have no place in the context of an order of compulsory retirement is absolutely correct. However, it does not mean that judicial scrutiny of an order of compulsory retirement is excluded altogether. The law on the scope of interference by this Court with the order of compulsory retirement is settled and the High Court as well as the Hon''ble Supreme Court although would not examine the matter as an Appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based or 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 if it is found to be a perverse order.
In view of the aforesaid discussion, I hold that the impugned order dated 30.11.1998 passed by the opposite party No. 1 retiring the petitioner on the ground of Petitioner''s blindness is arbitrary and is not based upon any evidence and, hence, liable to be quashed.
The writ petition succeeds and is allowed. The order dated 30.11.1998 is quashed. The opposite parties are directed to treat the petitioner as having remained in service of U.P. Forest Corporation till the age of 60 years with all consequential benefits.
There shall be no order as to costs.