H.O. Kaushik vs State of Haryana and Others

G.R. Majithia, J.—In this writ petition under Articles 228/227 of the Constitution of India, the Petitioner has sought a mandate from this Court to the Respondents to release the retiral benefits and other dues to him.

The facts:

The Petitioner joined as a temporary Engineer in the Irrigation Department of erstwhile State of Punjab on November 5, 1956. On reorganisation of the erstwhile State of Punjab, the services of the Petitioner were allocated to Respondent No. 1; that he was confirmed as an Assistant Engineer (HSE II) and was promoted as Executive Engineer (HSE I) on November 14, 1969 and as Superintending Engineer on October 28, 1981; that he was prematurely retired from service on January 22. 1985 in public interest; that he challenged the order of premature retirement in this Court in Civil Writ Petition No. 396 of 1985, which was dismissed in limine on July 19, 1985; that,-vide Memorandum No. 23/2/84-3IE, dated January 23, 1986, issued by the Joint Secretary to Government, Haryana, Irrigation and Power Department, he was informed that Respondent No. 1 proposed to take action against him under Rule 2.2(b) of Civil Services Rules, Vol. II on the grounds set out in the statement of charges enclosed therewith; that he filed reply to the chargesheet on June 2, 1986 and that Enquiry Officer was appointed on March 9, 1990, but he has not proceeded with the enquiry.

In the written statement Respondent No. 1 has taken the plea that the retiral benefits have not been released to the Petitioner since he did not co-operate with the Department for finalization of recovery cases against him.

The approach of the Respondents is illegal and once a decision to retire an official compulsorily is taken it is expected that it would be a clean decision to order compulsory retirement without anything more and after dropping or closing all pending or contemplated proceedings in regard to matters which form the background motive to the devision. The statement of allegations intimated to the Petitioner,-vide memorandum dated June 23, 1986. indicates, that the recovery sought to be effected from the Petitioner is based on the allegation pertaining to the year 1982. Respondent No. 1 did not think it proper to institute regular inquiry against the Petitioner before ordering his premature retirement. If there was any substance in the allegations, it would have been apt for Respondent No. 1 to frame proper charge sheet against the Petitioner and hold the enquiry. It might have been apt for Respondent No. 1 to frame proper charge-sheet against the Petitioner and hold the enquiry. He might have been exonerated. If found guilty, any major penality under the Punjab Civil Services (Punishment and Appeal) Rules, 1970 could have been imposed. Respondent No. 1 did not think it proper to proceed with the inquiry presumably for want of evidence. The same might have weighed with Respondent No. ( 1 to order premature retirement of the Petitioner. Respondent No. 1 having once taken the decision to compulsory retire the Petitioner, it should have dropped all the pending or contemplated proceedings against him. The order of compulsory retirement does not cast a stigma and the right of Respondent No. 1 to order''compulsory retirement of civil servants under the statutory rules in public interest is unassailable. After having taken the decision to order compulsory retirement, it was not fair for Respondent No. 1 to proceed to issue charge-sheet to the Petitioner. The charge-sheet was issued on January 23, 1986; reply to the chargesheet was filed by the Petitioner on June 2, 1986 and the Enquiry Officer was appointed on March 9, 1990 after a lapse of approximately four years. The Enquiry Officer has not proceeded with the inquiry so far. Under these circumstances, it will meet the ends of justice if the Respondent, drops the inquiry proceedings. It is ordered accordingly. This conclusion of mine is supported by. a Division Bench devision of Allahabad High Court in Mahesh Chand Jindal v. The State of U.P. and Anr. 1983 (2) S.L.R. 382, wherein the Bench held thus:

The power to order compulsory retirement is a. facet of the pleasure doctrine. If exercised bona fide it is not justiciable. A government servant is ensured a minimum period of service after the authorities may direct his compulsory retirement. By itself it does not carry any stigma and is not treated as penal in nature. However whenever a decision to retire an officer compulsorily is taken it is expected that it would be a clean decision to order compulsory retirement without any proceedings in regard to the matters which form the background motive to the decision. He should be Riven full proportionate pension so that whatever pension he has earned in respect of the period of his service already rendered is given to him in full. If simultaneously any action is to be taken to sanction only reduced pension under para 470(b), then it cannot be said to be a clean order of compulsory retirement. It is only a decision to order compulsory retirement simpliciter which carries neither any stigma nor any loss of "pensionary benefits nor is coupled with initiation of any penal departmental proceedings that can be treated as a legitimate exercise of the pleasure of the government to retain an officer or not beyond the minimum prescribed period of service.

Pension is not a bounty but a right defeasible in accordance with law. Respondent No. 1 could not refuse to release the retirai benefits to the Petitioner only on the ground that it intended to initiate disciplinary proceedings against him. Respondent No. 1 could remove or dismiss the Petitioner from service in accordance with the provisions of the service rules. Removal or dismissal from service generally implies that the officer/official is regarded in some manner as blame worthy or deficient, that is to say, that he has been guilty or capacity or the will to discharge the duty as he should do. Dismissal or removal is a punishment and is imposed as penalty. It involves loss of benefit already earned. An officer who is compul-sorily retired does not lose any part of benefit that he has earned. On compulsory retirement, he will be entitled to the pension etc., that he has actually earned. There is no such element of charge or imputation in the case of compulsory retirement. Respondent No. 1 ought to have released retirai benefits to the Petitioner. Failure to do so has resulted in mental agony and harassment to him. The action of Respondent No. 1 cannot be sustained. The Petitioner has also claimed release of selection grade which was illegally denied to him when he was working as Executive Engineer. He also urged that his pay was not correctly fixed on his promotion as Superintending Engineer. He has also claimed that he was kept on compulsory waiting from February 5, 1980 to October 27. 1980 and from December 29, 1981 to March 3, 1982 and was not paid salary for these intervals. The claim has been controverted by the Respondents. The claim being belated cannot be gone into in writ jurisdiction. Respondent No. 1 is duty bound to grant him the benefit of leave encashment and release of gratuity in accordance with Rules of retirai benefits.

For the reasons aforesaid, the writ petition succeeds and is allowed partly. The charge-sheet served upon the Petitioner is quashed. No further proceedings will be taken by the, Enquiry Officer persuant to the charge-sheet. Respondent No. 1 will sanction retirai benefits to the Petitioner in accordance with law within three months from the date of receipt of a copy of this judgment, failing which the same will be released along with interest at the rate of 12 per cent per annum. There will be no order as to costs.