S S MARWAH Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant was compulsorily retired under Rule 56 (j) of the fundamental Rules on his attaining the age of 55 years. He challenged the order of compulsory retirement by filing a writ petition in the High Court of Punjab and Haryana at Chandigarh. The said writ petition was heard by a learned single Judge who by his judgment and order dated 24-9-1976 dismissed the writ petition. Against the said order of dismissal the appellant preferred a Letters patent Appeal which too came to be dismissed by a Division Bench of the High court by its judgment and order dated 21-10-1981. It is against that order that the present appeal by special leave has been preferred.

(2.) The learned counsel for the appellant submitted before us that immediately prior to the order of compulsory retirement the appellant had been allowed to cross the efficiency bar which went to indicate that his services were considered to be satisfactory by his superiors. He submitted that the impugned order of compulsory retirement was passed on 4-10-1975 in exercise of power conferred by clause (j') of Rule 56 of the Fundamental Rules principally because the adverse entry was made in his confidential report for the period 1974-75. According to the learned counsel, the appellant had made a representation against the said adverse entry since he was permitted to do so within a period of six weeks and that representation came to be rejected some time in 1978. Learned counsel for the appellant, therefore, submitted that the order of compulsory retirement was clearly arbitrary and, therefore, unsustainable. We do not think we can accede to this submission made by the learned counsel for the appellant. On a consideration of the facts of the case we find that the service record of the appellant was average and the Collector of Customs had noted that he had in the recent past been inactive in supervision and control and various omissions and irregularities were noticed insofar as discharge of duties by him was concerned. In the counter-affidavit filed on behalf of the department it has been stated that in taking the decision of compulsory retirement the management had taken the overall record of the appellant into consideration and had not merely gone by the adverse entry immediately preceding the order of compulsory retirement. His overall record for the last about 5 years or more showed that he had slackened down and did not exercise the control expected of him over his subordinates nor did he show sufficient interest in the discharge of his duties and functions resulting in omissions and irregularities in the performance thereof. We are, therefore, of the opinion that the retirement was in public interest and hence the order of compulsory retirement is unassailable.

(3.) The learned counsel for the appellant then pointed out that after the order of compulsory retirement was implemented prosecution was launched against the appellant on account whereof his pension was reduced and his gratuity was withheld pending disposal of the prosecution. It is not in dispute that the prosecution had ended in the appellant being exonerated from the charges levelled against him. The order of the learned Special Judge, Ambala, shows that the prosecution had failed to establish its case beyond reasonable doubt against the appellant and, therefore, he was acquitted of all the charges levelled against him. This order was passed on 15-1-1988. We are told that no appeal was filed against this order and hence it has become final. If that be so, the question of releasing the withheld pension and gratuity ought to have been considered by the respondent-department which has not been done till today. The learned counsel for the appellant is, therefore, right in submitting that the respondent must be directed to do so within a reasonable time.