M A SIDDIQUI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition is directed against an order of compulsory retirement of a Central Government servant. The petitioner was an Inspector of Central Excise, and his appointing authority, namely, the Collector, Central Excise, has passed an order under rule 48 of The Central Civil Services (Pension) Rules, 1972, compulsorily retiring him with effect from 28th February, 1974. The petitioner completed 30 years of service on 19-10-1973. At first, an order was passed against him on 17th September, 1972, Annexure 3, directing his retirement with effect from 20th October, 1973, or from the date of expiry of three months from the date of service of the notice upon him, whichever is later. THIS order is Annexure 3 to the petition. THIS was modified by order dated 4th December, 1973, Annexure 6, whereby it was made clear that the petitioner would retire with effect from the afternoon of 28th February, 1974. The original order, Annexure 3, made a reference to rule 56(1) of the Fundamental Rules. Although different rules are mentioned in the two orders Annexures 3 and 6, it is not disputed that the power of compulsory retirement did exist and mere citation of a wrong rule would not invalidate the order. The two orders are not contended to be ex facie invalid on any ground. In the writ petition, the order of compulsory retirement was contended to be arbitrary. Accord ingly, an order was passed by this Court on an earlier date directing the Standing Counsel for Union of India to produce the record showing considera tion of the petitioner's case. At the time of hearing, however, learned counsel for the petitioner, Sri Saghir Ahmad, did not press this ground. There is, indeed no gvernment in the petition that the petitioner's record was excellent and that any action of compulsory retirement would for the reason be arbitrary. It is thus not a case in which any malice in fact or malice in law may have been relied on. Learned counsel for the petitioner has, however, contended that the order of compulsory retirement must be treated to be a penal order of removal because at the time the decision was taken in September, 1973, to retire the petitioner, two disciplinary inquiries were already pending against him. One of these disciplinary proceedings terminated in favour of the petitioner on 15th November, 1973, and the other on 26th November, 1973, and the peti tioner was exonerated on both of these charges. The contention of the res pondent, on the other hand, is that the compulsory retirement had nothing to do with the subject-matter of these two inquiries and was not, in any way, based on the allegations which were under inquiry. Indeed, the learned Standing Counsel for the Union of India produced before us the record of the reviewing committee which considered cases of more than 100 officials and on the basis of its review, recommended the compulsory retirement of a few of them. The proceedings of the reviewing committee shown to us confirmed that the two disciplinary inquiries referred to above were not mentioned among the factors considered so far as the petitioner was concerned. The contention of the learned counsel for the petitioner, however, is that the exis tence of the two disciplinary inquiries being within the knowledge of the appointing authority, the same must have influenced the decision of the appointing authority even though the same may not have been considered by the reviewing committee which was only a recommendatory body. Sri Saghir Ahmad, learned counsel for the petitioner, has fairly placed before us the entire case-law on the subject. In Vidyadhar Misra v. State of U. P. (1976 A.L.R 567) (decided by a learned Single Judge), State of U. P. v. Purushottam Swarup Johari (1976 A.L.R 316) and in G. S. Sial v. Union of India (1977 A.L.R 153) (decided by two Division Beeches), an order of compulsory retirement passed during the pendency of the disciplinary inquiry was held to be penal. On the other hand, another Division Bench, State of U. P. v. M. B. L. Srivastava(1974 A.L.R 370) took the view that the mere fact that a disciplinary inquiry was pending did not make the order of compulsory retirement penal. In Purushottam Swarup Johari and G. S. Sial (supra) the Full Bench decision in Ram Safan Lal v. State of U. P. (1971 A.W.R 378) was also relied on. THIS Full Bench ruling related to an order of termination and was not noticed in M. B. L. Srivastava (supra) was not noticed in Purushottam Swarup Johari (supra) or G, S. Sial (supra). Puru- shottam Swarup Johari (supra) has been followed by Himachal Pradesh High Court in Banwari Lal v. State (1978 Lab. I.C. 1089). A close examination of these rulings, however, shows that there is no conflict of opinion with regard to the legal principles involved. Different cases were decided differently on interpretation of the relevant facts which happened to be different. In Purushottam Swarup Johari's case (sopra), a departmental inquiry under Section 7. Police Act, was held and the Inquiry recommended dismissal. The D. I. G. Police, remanded the case to the Inquiry Officer for giving further opportunity to the official. During the pen dency of the inquiry, another chargesheet of 17 charges was given. While this inquiry was at the defence stage, the order of compulsory retirement was passed. Thus, the fifth proposition in the State of Punjab v. Sukh Raj Bahadur (A.I.R. 1968 S.C. 1089) was held attracted. In G. S. Sial's case (supra), again the departmental inquiry was almost concluded when compulsory retirement was ordered. The decision in Purushottam Swarup Jahari (supra) was followed. It was held on facts that the subject-matter of the departmental inquiry was taken into consideration by the competent authority while ordering compul sory retirement. In Vidyadhar Misra's case (supra) also the fifth proposition in Sukh Raj Bahadur's case (supra) was applied. Thus, it would appear that in every one of these cases the order of 'compulsory retirement was found to be related to the subject-matter of the disciplinary proceedings. In other words, while the disciplinary proceedings were at an advanced stage, as men tioned in fifth proposition in Sukh Raj Bahadur's case (supra) the disciplinary authority instead of carrying them to their logical conclusion adopted a short cut of passing an innocuously worded order of compulsory retirement. What was significant was that the background motive which operated in the mind of the appointing authority, was the same misconduct which was the subject-matter of the said inquiry. Similar was the case in the Full Bench decision in Ram Saran Lal's case (supra). As against these cases, we may also notice Nepal Singh v. State of U. P. (1974(1) S.L.R. 326) in which another Division Bench upheld the order of the compulsory retirement which was passed after the disciplinary proceedings were quashed by the appellate authority on the ground of a defect in jurisdiction discovered by it. What is thus relevant is whether the subject-matter of the departmental inquiry, which was pending at the time an order of termination or compulsory retirement is passed, was itself the only or substantially the only background motive operating in the mind of the competent authority. If such be the case, then the fifth proposition in State of Punjab v. Sukh Raj Bahadur (supra) may apply. We are assuming for the purposes of this case, without deciding, that the said proposition applies as well to cases of compulsory retirement as to cases of termination of service. But if the inno cuously worded order of termination or retirement simpliciter was passed because of the bad record and general unsuitability of the employee, then the mere fact that some disciplinary inquiry on some specific charge also happened to be pending at the time cannot have the effect of invalidating the order. Learned counsel for the petitioner has argued that the likelihood or at least the possibility of the appointing authority being influenced by the pendency of the two disciplinary inquiries could not be ruled out. Perhaps such a presumption could be raised if the record of an employee is otherwise found to be good. In that case a mere protestation of the competent authority that it was not influenced by the pending departmental inquiry or by the subject-matter thereof may be disbelieved, But where the record of an employee is not good, no such inference can be drawn against the authority. The order cannot be nullified merely on the basis of a possibility the that subject-matter of the departmental inquiries may have contributed to the decision. Moreover, as held in State of U. P. v. C. M. Nigam (1977(4) S.C.C. 345) (Paras 19 to 24), in an order of compulsory retirement can be supported on the material which was validly taken into consideration, the mere fact that some other material was also wrongly taken into consideration would not invalidate the order. Thus, the impugned order does not suffer from any illegality. Learned counsel for the petitioner has pointed out that while some other officials, who were recommended for compulsory retirement by the same reviewing com mittee, have since been reinstated, only the petitioner's case was not consider ed because of the pendency of the writ petition. We are not in a position to compare different cases, the records of which are not before us. If there is any substance in this contention and if the record of the petitioner be better than that of others who have since been reinstated, it will certainly be open to the petitioner to approach the competent authority in that regard after the decision of the writ petition. In the result the writ petition is dismissed, but no order is made as to costs.