Smt. Veena M. vs Karnataka Food and Civil Supplies Corporation Ltd., The Managing Director Karnataka Food and Civil Supplies Corporation Ltd. and The Board of Directors Karnataka Food and Civil Supplies Corporation Ltd.

H.N. Nagamohan Das, J.—In this writ petition, the petitioner has prayed for a writ in the nature of certiorari to quash the order dated 31.10.2009 Annexure-A and the order dated 07/08.07.2004 Annexure-B compulsorily retiring the petitioner from service. Petitioner was working as Junior Assistant in the respondent Corporation. By order dated 12.07.2002, the; petitioner was transferred from Bangalore to Mangalore. Petitioner without reporting for duty at Mangalore applied for leave on medical ground. In support of the leave application, petitioner also produced a medical certificate. The respondent Corporation doubted the genuineness of the medical certificate produced by the petitioner. Consequently, petitioner was subjected to examination before the Medical Board at Udupi, District hospital. The Medical Board on examination of the petitioner certified that she is suffering from dust allergy and her claim for leave not justified. On the basis of this Medical Board certificate, the petitioner was compulsorily retired from the service as per order dated 7/8.07.2004 Annexure-B. Aggrieved by this order of compulsory retirement, petitioner filed an appeal before the Appellate Authority and the same came to be rejected under the impugned order dated 31.10.2009 Annexure-A. Hence, this writ petition.

Heard arguments on both the side and perused the entire writ papers.

It is not in dispute that by order dated 12.07.2002, the petitioner was transferred from Bangalore to Mangalore. Petitioner applied for medical leave for the period 15.07.2002 to 27.07.2002 i.e., for a period of 12 days. The medical certificate produced by the petitioner and the medical certificate issued by the Medical Board specifies that the petitioner was suffering from dust allergy. According to the medical certificate produced by the petitioner, she is not in a fit condition to attend to her work. On the other hand, the medical certificate issued by the Medical Board specifies that the claim for leave on medical ground not justified. Even, if the certificate of Medical Board taken as true the fact remains that the petitioner was suffering from dust allergy. Therefore, for this mis-conduct, the penalty of compulsory retirement is shockingly disproportionate.

In identical circumstances, the Supreme Court in Brij Mohan Singh Chopra Vs. State of Punjab, is held as under:

It is well settled that while considering the question of premature retirement it may be desirable to make an overall assessment of the Government servant''s record, but while doing that, more value should be attached to the confidential reports pertaining to the years immediately preceding such considerations. It is possible that a new entrant to a service may have commuted mistakes and for that reason he may have earned adverse entries of early years of service are taken into consideration for prematurely retiring a Government employee then perhaps no employee would be safe even though he may have brilliant record of service in later years. Old and stale entries should not be taken into account while considering the question of premature retirement; instead the entries of recent past of five to ten years should be considered in forming the requisite opinion to retire a Government employee in public interest. It would be unreasonable and unjust to consider a adverse entries of remote past and to ignore the good entries of recent past. If entries for a period of more than 10 years past are taken into account it would be an act of digging out past to get some material to make an order against the employee.

Whenever an adverse entry is awarded to Government servant it must be communicated to him. The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries. If such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not. Making of a representation is a valuable right to a Govt. employee and if the representation is not considered, it is bound to affect him in his service career, as in Govt. service grant of increment, promotion and ultimately premature retirement all depend on the scrutiny of the service records. Adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. The same consideration must apply to a case where the adverse entries are taken into account into account in retiring an employee prematurely from service. It would be unjust and unfair and contrary to principles of natural justice to retire prematurely a Govt. employee on the basis of adverse entries which are either not communicated to him or if communicated to him or if communicated representations made against those entries are not considered against those entries are not considered and disposed of.

Though the entire service record of an employee may be considered while considering the question of his premature retirement, but if the service record of the last 10 years of his service record do not indicate any deficiency in his work and conduct it would be unjust and unreasonable to retire him prematurely on the basis of entries which may have been awarded to him prior to that period.

In the instant case the State of Punjab issued Govt. order on June 22, 1981 directing that under the Punjab Civil Services (Premature Retirement) Rules, 1975 it would not be desirable to scrutinize the entire service record of an employee and premature retirement should not be ordered if during the last 5 years the work and conduct of the employee have been good. The premature retirement was set aside on the grounds that firstly, adverse entries prior to promotion of the employee were taken into consideration; secondly; the adverse entries against which the representations by the employee were pending, were considered and thirdly, the employee had not earned any adverse remarks during the last five years of service but had on the contrary earned "very good" remarks. Civil writ No. 1384 of 1981, Dt/5-8-1981, (Pun. & Har.) Reversed.

In the instant case, the reading of the impugned order do not specify that the respondents have taken into consideration the past services. From the date of compulsory retirement on 07/8.07.2004 till today, the petitioner has not worked in the respondent establishment and absolutely there is no contribution by her. Respondent Corporation is a public sector undertaking, grant of back wages is not a matter of right. Having regard to the facts and circumstances of this case, the petitioner is not entitled for back wages and consequential benefits. For the reasons stated above the following:

ORDER

i) The writ petition is hereby allowed

ii) The impugned order dated 31.10.2009 Annexure-A and order dated 7/8.07.2004 Annexure-B are hereby quashed.

iii) The respondent is hereby directed to reinstate the petitioner without back wages and consequential benefits. However, the petitioner is entitled for continuity of service for the limited purpose of retrial benefits.

Ordered accordingly.