# Adityendra Sharma v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 617
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-23
- **Case number:** Writ A No. 26110 of 2018
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/adityendra-sharma-v-state-of-u-p-ors-47598
- **Pages:** 10

## Headnote

A. Service Law - Compulsory retirement
from the post of Deputy District Election
Officer
-
Subjective
satisfaction
-
Charge of not performing the duty
properly - After enquiry, the petitioner
was awarded the punishment by placing
him on the minimum pay scale - Order
of
compulsory
retirement
was
challenged on the ground of its being
issued as camouflage to cut short the
disciplinary
proceeding
-
Held,
the
screening committee has formed the
opinion on the subjective satisfaction on
appreciation of entire record of the
petitioner - Pendency of disciplinary
proceeding
was
not
at
all
in
consideration
of
the
screening
committee in forming an opinion that
the petitioner should be compulsorily
retired in the public interest. (Para 20
and 23)
Writ petition dismissed. (E-1)
List of Cases cited :-

## Text

3 All. Adityendra Sharma Vs. State of U.P. & Ors.
617
Government servants so long as the same
are not altered by the respondents in
accordance with the provisions of the said
Act.
Applicability
of
the
aforesaid
judgment could not be disputed by the
learned Standing Counsel and counsels for
the respondent-Corporation.

6. In the present case, only
administrative orders are issued by the
respondents and there is no alteration made
with regard to the service conditions of the
petitioners viz-a-viz the employees of the
State Government. Merely by office orders
change in the service conditions cannot be
made. It is not disputed that benefits of the
6th Pay Commission are covered under the
term 'service conditions' and, therefore, the
said benefits are to be made applicable to
the petitioners also from the date the same
are
made
applicable
to
the
State
Government employees.

7. In view of the aforesaid, the
impugned orders dated 10.8.2021 and
19.1.2021 are set aside and respondents are
directed to pay the benefits of the 6th Pay
Commission to the petitioners w.e.f.
20.7.2015 as was provided to the similarly
situated persons by the respondents by the
order dated 24.6.2020 (Annexure No.3) and
further to pay the dearness allowance as is
being provided to the State Government
employees within a period of four months
from the date of receipt of a certified copy
of this order.

8. With the aforesaid directions, all the
writ petitions are allowed.
----------
(2022)03ILR A617
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2021

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 26110 of 2018

Adityendra Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Rai, Sri Santosh Kumar
Dwivedi

Counsel for the Respondents:
C.S.C.

A. Service Law - Compulsory retirement
from the post of Deputy District Election
Officer
-
Subjective
satisfaction
-
Charge of not performing the duty
properly - After enquiry, the petitioner
was awarded the punishment by placing
him on the minimum pay scale - Order
of
compulsory
retirement
was
challenged on the ground of its being
issued as camouflage to cut short the
disciplinary
proceeding
-
Held,
the
screening committee has formed the
opinion on the subjective satisfaction on
appreciation of entire record of the
petitioner - Pendency of disciplinary
proceeding
was
not
at
all
in
consideration
of
the
screening
committee in forming an opinion that
the petitioner should be compulsorily
retired in the public interest. (Para 20
and 23)
Writ petition dismissed. (E-1)
List of Cases cited :-
1. Writ A No. 45254 of 2017; Ghanshyam Misra
Vs St. of U.P. & ors.
2. Special Appeal Defective No. 24 of 2018;
Rizwan Ahmad Vs St. of U.P. & ors.
3. Special Appeal No. 496 of 2018; Brijesh
Kumar Vs St. of U.P. & ors.
4. St. of U.P. Vs Abhai Kishore Masta; 1995(1)
SCC 336
(Delivered by Hon'ble Saral Srivastava, J. )
618 INDIAN LAW REPORTS ALLAHABAD SERIES

1. I have heard learned counsel for the
petitioner and learned counsel for the
respondents.

2. The petitioner has assailed the
order
dated
29.10.2018
passed
by
respondent no.2-Chief Election Officer,
U.P., Lucknow by which he has been
compulsory retired and the consequential
order
dated
30.10.2018
passed
by
respondent
no.3-Additional
District
Magistrate
(Administration)/Deputy
District Election Officer, Bulandshahar
intimating the order dated 29.10.2018.

3. Brief facts giving rise to the present
case are that the petitioner was appointed as
Junior Assistant on 19.06.1990 in the office
of District Election Officer. The petitioner
was promoted to the post of Senior
Assistant. The petitioner was suspended by
order dated 01.07.2011 on the charge that
he had not been performing his duties
properly and had not abide by the orders of
his superiors. Thereafter, an enquiry was
instituted
against
the
petitioner.
The
petitioner was awarded punishment by
placing him on the minimum pay scale by
order dated 16.02.2016.

4. It appears that the Chief Secretary,
Government of U.P., Lucknow issued an
order on 06.07.2017 to all Additional Chief
Secretary/Principal
Secretary/Secretary,
U.P. Government to forward the details of
all employees working in their department
who have completed fifty years on
31.07.2017
for
screening
them
for
compulsory retirement. The cut-off date of
fifty years was 31.03.2017.

5. Pursuant to the aforesaid letter, the
Chief Election Officer, UP, Lucknow wrote
a letter dated 12.07.2017, addressed to all
District Election Officers, the State of U.P.
Whereby he asked them to supply details of
employees who have completed fifty years
on
31.03.2017
to
screen
them
for
compulsory retirement.

6. The Additional District Magistrate
(Finance/Revenue)/Deputy
District
Election Officer, Hathras by letter dated
28.07.2017 sent the details of all the
employees including the petitioner to the
Chief Election Officer, U.P., Lucknow.
According to the said report, the services of
the petitioner are satisfactory.

7. The District Election Officer,
Hathras
by
letter
dated
22.09.2017
submitted a report to the Chief Election
Officer, UP, Lucknow stating therein that
the petitioner has given full cooperation in
successfully conducting the election of
General Assembly-2017. However, the
Chief Election Officer in the exercise of
power under Rule 56(c) of Fundamental
Rules passed an order on 29.10.2018
retiring
the
petitioner
compulsorily.
According to the said order/notice, the
petitioner will retire after three months of
the said order/notice. The order dated
29.10.2018
was
communicated
by
respondent
no.3-Additional
District
Magistrate, Bulandshahar to the petitioner
on 30.10.2018.

8. The further, case of the petitioner
is that the Chief Election Officer, UP,
Lucknow by order dated 17.07.2018
initiated a disciplinary proceeding against
the petitioner, and the District Election
Officer, Bulandshahar was appointed as
Enquiry Officer to conduct an enquiry
against the petitioner. The Chief Election
Officer, UP, Lucknow by order dated
20.08.2018 changed the Enquiry Officer
for
conducting
enquiry
against
the
petitioner.
3 All. Adityendra Sharma Vs. State of U.P. & Ors.
619

9. In the counter affidavit, the
respondent has stated that the petitioner was
promoted as Senior Assistant in the year 1996
and not in the year 2018. In the disciplinary
proceeding, the petitioner was awarded the
punishment of reversion of the minimum pay
scale on the post of Senior Assistant by order
dated 16.02.2016. The respondents have
further stated in the counter affidavit that the
petitioner was compulsorily retired in the
public interest to enhance efficiency in the
department and to make the atmosphere
corruption-free. It is further stated in the
counter affidavit that the conduct and
reputation of the petitioner were such that his
continuance in service would have been a
menace and injurious to the public interest.
To support the aforesaid contention, the
respondents have enclosed various letters
dated 24.01.2017, 04.03.2017, 21.03.2017,
16.11.2017 & 30.05.2018. It is further stated
that the letter of the Election Officer, Hathras
dated 22.09.2017 was in the context of
fixation of pay in consonance with the 7th
Pay Commission.

10. Further, the case of the
respondents is that the District Election
Officer, Bulandshahar by letter dated
31.08.2018 directed the petitioner to appear
before the screening committee at 11:00
A.M. on 14.09.2018. The petitioner had
appeared on 14.09.2018 at 11:00 A.M.
before the screening committee and the
petitioner was also given a personal
hearing.
The
respondents
have
also
enclosed with the counter affidavit, the
report of the screening committee which
was the basis of forming the opinion that
the petitioner should be compulsorily
retired in the public interest and for the
better administration of the department.

11. hat compulsory retirement should
not be used as a tool to cut short
disciplinary proceedings. He submits that it
is
on
record
that
the
disciplinary
proceeding was instituted against the
petitioner by order dated 20.08.2018 for
certain
allegations
and
once,
the
disciplinary proceeding had been instituted
against the petitioner that ought to have
been brought to a logical end by the
respondents by conducting proper and fair
enquiry in which the petitioner should also
be allowed to defend himself and prove his
innocence. He submits that the report of the
screening committee enclosed with the
counter affidavit also discloses that there
was no material except certain allegations
of irregularities committed by the petitioner
which influenced the screening committee
to conclude that the petitioner should be
compulsorily retired. He submits that the
object of compulsory retirement is to weed
out the deadwood, and in the instant case,
there is no material on record based on
which a prudent man would form an
opinion that the petitioner has outlived his
utility in the department and is deadwood,
therefore, he should be compulsorily
retired. In support of his case, learned
counsel for the petitioner has relied upon
the judgments of this Court in Writ-A
No.45254 of 2017 (Ghanshyam Misra Vs.
State of U.P. and 7 others), Special
Appeal Defective No.24 of 2018 (Rizwan
Ahmad Vs. State of U.P. and 3 others)
and Special Appeal No.496 of 2018
(Brijesh Kumar Vs. State of U.P. and 2
others).

12. Per contra, learned Standing
Counsel
contends
that
the
screening
committee after considering the entire
service record of the petitioner formed an
opinion that the petitioner has outlived his
utility in the department and is deadwood,
and accordingly, the screening committee
recommended for compulsory retirement of
620 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner. He submits that various
communications/letters
enclosed
as
Annexure CA-2 to the counter affidavit and
the fact that the petitioner had been
awarded
punishment
by
order
dated
16.02.2016 and the report of the screening
committee demonstrates that the retention
of the petitioner in the department was not
in the public interest. He submits that
opinion of the screening committee is
based upon subjective satisfaction after
screening the entire record of the petitioner,
and particularly the record of the recent
past. Accordingly, it is submitted that the
decision of the committee to recommend
the petitioner for compulsory retirement is
correct. He submits that the opinion of the
screening committee is not solely based
upon pendency of disciplinary proceeding
but is based upon the appreciation of the
entire service record of the petitioner and
therefore, it is not a fit case, where this
Court should interfere with the order of
compulsory retirement.

13. I have heard learned counsel for
the parties and perused the record.

14. The facts as emerge out from the
record are that the petitioner has been
appointed
as
Junior
Assistant
on
19.06.1990 and has been promoted as
Senior Assistant in the year 1996. The
petitioner was suspended by order dated
01.07.2011, and upon conclusion of the
disciplinary proceeding, he was awarded
the punishment of reversion to the
minimum pay scale of Senior Assistant by
order dated 16.02.2016. It is contended that
the order of compulsory retirement has
been issued as camouflage to cut short the
disciplinary proceeding instituted by order
dated 20.08.2018 passed by the Chief
Election Officer, U.P., Lucknow and,
therefore,
the
order
of
compulsory
retirement is liable to be set aside.

15. On perusal of record, this Court
finds that the facts are otherwise. The
respondents have enclosed various letters
of
authorities
dated
24.01.2017,
04.03.2017, 21.03.2017, 16.11.2017 &
30.05.2018
stating
therein
that
the
petitioner is not discharging his duties
properly and is not abiding by the
instructions of his superior officers. The
issuance of said letters has not been denied
by the petitioner which is evident from Para
5 of the rejoinder affidavit which replies
the averment of Paragraph 6 of the counter
affidavit.
Further,
the
fact
that
the
petitioner was awarded punishment by
order dated 16.02.2016 which the petitioner
had undergone is also not disputed on
record.

16. At this stage, it would be apt to
refer to the report of the screening
committee in respect of the petitioner,
enclosed as Annexure-3 to the counter
affidavit:-

4.
श्री
आणदत्येन्द्र
शमाट,
वररष्ठ
सहायक,
णजला
णनवाटचन
कायाटलय,
बुलन्दशहर
(तत्कालीन वररष्ठ
सहायक,
णजला
णनवाटचन
कायाटलय,
हाथरस)
सुनवाई के दौरान
अपने
समथटन
में
प्रस्तुत णकये गये पक्ष,
णनवाटचन णवभाग में
उनके द्वारा की गयी
सेवाओुं,
उनकी
वाणषटक
चररत्र
प्रणवणियोुं,
णवभाग
द्वारा उनके णवरुद्ध
प्रचणलत
की
गयी
अनुशासणनक
कायटवाणहयोुं तथा णदये
गये दण्डोुं एवुं उनके
सम्बन्ध में सुंबुंणित
3 All. Adityendra Sharma Vs. State of U.P. & Ors.
621
णजला
णनवाटचन
अणिकारी
द्वारा
उपलब्ध करायी गयी
सुंस्तुणत
सणहत
आख्या
का
अवलोकन
णकया
गया। अवलोकन से
यह सुंज्ञान में आया
णक-

अ-
श्री
आणदत्येन्द्र शमाट के
णवगत 10 वषों की
चररत्र प्रणवणियोुं में
सुंबुंणित अणिकाररयोुं
द्वारा या उन्हें सामान्य
काणमटक के रूप में
आुंकणलत णकया गया
है अथवा प्रणवणियाुं
प्रदान ही नहीुं की
गयी है।

ब-
श्री
आणदत्येन्द्र शमाट के
णवरूद्ध
गम्भीर
अणभलेखीय/णवत्तीय
अणनयणमतता
बरते
जाने
तथा
उच्चाणिकाररयोुं
के
आदेशोुं का उल्लुंघन
करने, मनमाने ढुंग से
कायाटलय आने, अपने
पदीय दाणयत्ोुं में घोर
लापरवाही
एवुं
उदासीनता
बरते
जाने तथा कमटचारी
आचरि णनयमावली
के सुसुंगत णनयमोुं का
उल्लुंघन करने जैसे
गम्भीर आरोप लगे।
उक्त
आरोपोुं
के
दृणिगत श्री आणदत्येन्द्र
शमाट को कायाटलय
ज्ञाप
सुंख्या-
786/सी०ई०ओ०-1
णदनाुंक 01.07.2011
के
द्वारा
उनके
णवरूद्ध अनुशासणनक
कायटवाही
सुंज्यस्थत
करते
हए
उन्हें
णनलज्यम्बत कर णदया
गया
था।
जाुंच
अणिकारी
द्वारा
उपलब्ध कराये गये
जाुंच आख्या में उनके
णवरूद्ध लगे कुल 11
आरोपोुं में 07आरोप
पूिटतया णसद्ध पाये
गये,
01
आरोप
आुंणशक रूप से णसद्ध
पाया गया तथा 03
आरोप
णसद्ध
नही
पाये
गये।
जाुंच
अणिकारी की आख्या
एवुं
अन्य
सुसुंगत
अणभलेखोुं से यह भी
सुंज्ञान में आया णक वे
अणभलेख समय से
तैयार नहीुं करते हैं,
अणिम
का
समायोजन
उनके
द्वारा 1.5 वषट में णकया
गया, उनके कैणशयर
के रूप में कायट करने
की
अवणि
में
कैशबुकोुं
में
णभन्नता/अपूिटता पायी
622 INDIAN LAW REPORTS ALLAHABAD SERIES
गयी।
उनके
द्वारा
टरेजरी चेक काफी
समय तक अपने पास
रखा गया। प्रकरि में
कायाटलय
ज्ञाप
सुंख्या-
465/सी०ई०ओ०-1
णदनाुंक 16.02.2016
के
द्वारा
श्री
आणदत्येन्द्र शमाट को
दोषी पाते हए हए
उन्हें वररष्ठ सहायक
के
मूलवेतन
के
न्यूनतम प्रक्रम पर
प्रत्यावणतटत करने के
दण्ड के साथ उनका
णनलम्बन एवुं उनके
णवरूद्ध
प्रचणलत
अनुशासणनक
कायटवाही को समाप्
णकया गया।

स-
श्री
आणदत्येन्द्र
शमाट,
वररष्ठ सहायक, णजला
णनवाटचन
कायाटलय,
िोणतबाफूलेनगर
माह जनवरी, 2002
में स्थानान्तररत होकर
जनपद हाथरस गये।
श्री शमाट द्वारा जनपद
िोणतबाफूलेनगर में
कैणशयर का कायट
णनस्ताररत
णकया
जाता
था।
जनपद
िोणतबाफूलेनगर में
िनराणश
रू०8,36,300.00
के
गबन
से
सुंबुंणित
प्रकरि
सुंज्ञान
में
आने के उपरान्त जब
कैशचेस्ट को खोला
गया तो उसमें से
रू०-2,53,090.00
लगभग की िनराणश
कैशचेस्ट से बरामद
हई। शेष िनराणश
रू०-5,83,210.00 के
आिार
पर
उच्चाणिकारी
द्वारा
एफ०आई०आर० दजट
करायी
गयी
थी,
णजसका
मुकदमा
जनपद न्यायालय में
चल रहा है।

चूुंणक वषट 19992000 से 2001-2002
की अवणि की णवशेष
सम्परीक्षा
होनी
है
और
इसके
णलए
सम्परीक्षा दल द्वारा
माुंगे
जाने
वाले
अणभलेखोुं
को
सुंकणलत
कराकर
उपलब्ध कराये जाने
के णनदेश णदये गये
हैं। ऐसी ज्यस्थणत में
अणभलेखोुं
का
सुंकलन
मात्र
इस
कारि नहीुं हो पा
रहा
है
णक
श्री
आणदत्येन्द्र शमाट द्वारा
अपना सम्पूिट चाजट
जनपद
अमरोहा
(तत्कालीन
िोणतबाफूलेनगर) में
उपज्यस्थत होकर आज
3 All. Adityendra Sharma Vs. State of U.P. & Ors.
623
तक नहीुं उपलब्ध
कराया
गया
है,
जबणक इसके णलए
उन्हें
अनेकोुं
बार
णनदेणशत णकया गया।
चाजट
हस्तगत
ने
कराये जाने, आदेशोुं
की अवहेलना करने
तथा
अनुशासनहीनता
आणद
आरोपोुं
के
दृणिगत
कायाटलय
ज्ञाप
सुंख्या-
1378/सी०ई०ओ०-01
णदनाुंक 17.07.2018
के द्वारा उनके णवरुद्ध
अनुशासणनक
कायटवाही
पुनः
सुंज्यस्थत कर दी गयी
हैं।

द-
श्री
आणदत्येन्द्र शमाट के
सुंबुंि
में
णजला
णनवाटचन अणिकारी,
हाथरस
(जहाुं
वे
जनपद
बुलन्दशहर
होने के पूवट तैनात थे)
द्वारा उनके सुंबुंि में
यह उज्यल्लज्यखत णकया
गया
है
णक
श्री
आणदत्येन्द्र
शमाट
कायाटलय
में
अणिकाुंशतः णवलम्ब
के आने तथा मनमजी
के णबना सूचना णदये
एवुं अवकाश णबना
स्वीकृत
कराये
कायाटलय
से
अनुपज्यस्थत रहने के
आदी
हैं,
णजसके
सुंबुंि में श्री शमाट से
अपनी कायट प्रिाली
में
अपेणक्षत
सुिार
लाने हेतु सचेत णकया
गया तथा इनके वेतन
रोके जाने की भी
प्रणक्रया अपनाई गयी
णजस कारि इनकी
छणव अच्छी नहीुं है।

उक्त के दृणिगत
स्क्रीणनुंग कमेटी द्वारा
श्री आणदत्येन्द्र शमाट,
वररष्ठ सहायक को
अणनवायट सेवाणनवृणत्त
प्रदान
करने
की
सुंस्तुणत करती है।

17. A joint reading of various letters
enclosed as Annexure-2 to the counter
affidavit with the report of the screening
committee, it is evident that the screening
committee has considered the entire record
and was not at all influenced only by the order
dated 20.08.2018 passed by the Chief Election
Officer, UP, Lucknow instituting disciplinary
proceeding against the petitioner in forming
the
opinion
that
petitioner
should
be
compulsorily retired as his continuance in the
department is not in the public interest. A
perusal of the report of the screening
committee discloses that the order dated
20.08.2018 of the Chief Election Officer, UP,
Lucknow
instituting
the
disciplinary
proceeding was not before it, hence, in such
view of the fact, it cannot be said that the
decision
of
screening
committee
was
influenced by the order dated 20.08.2018 or
the order of compulsory retirement has been
passed to cut short the disciplinary proceeding.
624 INDIAN LAW REPORTS ALLAHABAD SERIES

18. At this stage, it would apt to refer
to the judgment of the Apex Court in the
case of State of U.P. Vs. Abhai Kishore
Masta
1995(1)
SCC
336.
Relevant
paragraphs 7, 8, 9 & 12 of the said
judgment are reproduced herein-below:-

"7. So far as the order of
compulsory retirement under Fundamental
Rule 56-J is concerned, we are of the
opinion that the principle enunciated by the
High Court in J.N. Bajpai and followed in
the
Judgment
under
appeal
is
unsustainable in law. It cannot be said as a
matter of law nor can it be stated as
invariable rule, that any and every order of
compulsory
retirement
made
under
Fundamental Rule 56-J (or other provision
corresponding
thereto)
during
the
pendency of disciplinary proceedings is
necessarily penal. It may be or it may not
be. It is a matter to be decided on a
verification of the relevant record or the
material on which the order is based.

8. In the State of Uttar Pradesh
v.
Madan
Mohan
Nagar
(1967)IILLJ63SC it has been held by a
Constitution Bench that the test to be
applied in such matters is "does the order
of
compulsory
retirement
cast
an
aspersion or attach a stigma to the officer
when
it
purports
to
retire
him
compulsory?" It was observed that if the
charge or imputation against the officer
is made the condition of the exercise of
the power it must be held to be by way of
punishment-otherwise not. In other words
if it is found that the authority has
adopted an easier course of retiring the
employee under Rule 56-J instead of
proceeding with and concluding the
enquiry or where it is found that the main
reason for compulsorily retiring the
employee
is
the
pendency
of
the
disciplinary proceeding or the levelling
of the charges, as the case may be, it
would be a case for holding it to be
penal. But there may also be a case
where the order of compulsory retirement
is not really or mainly based upon the
charges or the pendency of disciplinary
enquiry. As a matter of fact, in many
cases, it may happen that the authority
competent to retire compulsorily under
Rule 56-J and authority competent to
impose the punishment in the disciplinary
enquiry are different. It may also be that
the
charges
communicated
or
the
pendency of the disciplinary enquiry is
only one of the several circumstances
taken into consideration. In such cases it
cannot be said that merely because the
order of compulsory retirement is made
after the charges are communicated or
during the pendency of disciplinary
enquiry, it is penal in nature.

9. It is true that merely because
the order of compulsory retirement is
couched in innocuous language without
making
imputations
against
the
government servant, the Court need not
conclude that it is not penal in nature. In
appropriate cases the Court can lift the
veil to find out whether, in truth, the
order is penal in nature vide Ram Ekbal
Sharma v. State of Bihar."

It ultimately held:-

12. We are, therefore, of the
opinion that the High Court was in error in
holding that merely because the order of
compulsory retirement was passed during
the pendency of a disciplinary enquiry, it
must be necessarily deemed to be penal in
nature, is unsustainable in law. The
Judgment of the High Court is accordingly
set aside and the matter is remitted to the
High Court to determine, in the light of the
observations made herein, whether the
3 All. Adityendra Sharma Vs. State of U.P. & Ors.
625
order of compulsory retirement is, in truth,
penal in nature? There shall be no order as
to costs."

19. The Apex Court in the case of
Abhai Kishore Masta (supra) has held
that the order of compulsory retirement
during
the
pendency
of
disciplinary
proceedings is penal and is unsustainable in
law. The Apex Court held that where it
could be demonstrated that the authority
has used the tool of compulsory retirement
as an easier course to retire the employee
instead of proceeding with enquiry and
concluding the same or where the main
reason
for
compulsorily
retiring
the
employee
is
the
pendency
of
the
disciplinary proceeding or the levelling of
the charges, as the case may be, it would be
a case for holding it to be penal. But if the
authorities on the subjective satisfaction of
the record form an opinion that the
employee is deadwood and has outlived in
the department and while forming the said
opinion the pendency of disciplinary
proceeding
is
one
of
the
several
circumstances which has been taken into
consideration. In such a case, it cannot be
said
that
the
order
of
compulsory
retirement
during
the
disciplinary
proceeding is penal. The Apex Court has
further held that in appropriate cases the
court can lift the veil to find out whether, in
truth, the order is penal.

20. Now applying the law elucidated
by the Apex Court in the case of Abhai
Kishore Masta (supra), this Court finds
that the order of compulsory retirement
against the petitioner is based upon
subjective satisfaction of the entire record
of the petitioner more particularly the
recent record of the petitioner and the
pendency of disciplinary proceeding was
not at all in consideration of the screening
committee in forming an opinion that the
petitioner should be compulsorily retired in
the public interest.

21. If the various letters of authorities
enclosed as Annexure-CA-2 to the counter
affidavit and the report of the screening
committee are read, this Court finds that
the screening committee after proper
appreciation of material on record formed
the opinion that the petitioner is deadwood
and is not fit to remain in the department
for better administration and, therefore, this
Court is not inclined to agree with the
contention of learned counsel for the
petitioner that the order of compulsory
retirement has been passed as camouflage
to cut short the disciplinary proceeding
against the petitioner.

22. So far as the judgments of this
Court relied upon by learned counsel for
the petitioner are concerned, in the case of
Ghanshyam Misra (supra), this court
after noticing the various precedents of the
Apex Court on the subject of compulsory
retirement held that the decision of the
screening committee was not based upon
subjective satisfaction of the record as the
screening committee failed to consider
entries awarded to the petitioner in recent
past where the petitioner was awarded good
entries.
Therefore,
the
facts
and
circumstances in which this Court allowed
the writ petition are not akin to the facts of
the present case and, therefore, the
judgment of this Court is no help to the
petitioner.

23. So far as the judgment of this
Court in the case of Brijesh Kumar
(supra) is concerned, this Court recorded a
finding that while screening the records of
the petitioner, the competent authority has
not examined the records in its entirety
626 INDIAN LAW REPORTS ALLAHABAD SERIES
correctly
and
in
proper
perspective,
whereas in the case in hand, the screening
committee has formed the opinion on the
subjective satisfaction on appreciation of
entire record of the petitioner. It is worth
notice
that
learned
counsel
for
the
petitioner could not demonstrate that the
report of the screening committee is per-se
illegal or based upon no material on record.
Accordingly, the judgment of Brijesh
Kumar (supra) also does not come to the
aid of the petitioner.

24. So far the judgment of this Court
in the case of Rizwan Ahmad Vs. State of
U.P. ad others (Special Appeal Defective
No.24 of 2018) is concerned, the same has
also been rendered in the different factual
backdrop since in the said case, the Court
found that the entire service record was not
placed before the screening committee who
formed an opinion on the basis of the
incomplete service record of the petitioner
to
compulsory
retire
the
petitioner.
Accordingly, this Court held that the order
of compulsory retirement is not sustainable.
The judgment in the said case has been
rendered by this Court in different factual
backdrop and therefore, reliance placed by
the learned counsel for the petitioner on the
said judgment is also misconceived.

25. For the reasons given above, this
Court finds that there is no infirmity in the
order
of
compulsory
retirement.
Accordingly, the writ petition lacks merit
and is dismissed without there being any
order as to cost.
----------

(2022)03ILR A626
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.03.2022

BEFORE
THE HON'BLE DINESH KUMAR SINGH, J.

Writ A No. 30241 of 2016

Hori Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sameer Kalia

Counsel for the Respondents:
Sudeep Seth, Jitendra Narain Mishra

A. Service Law - Removal from service -
Disciplinary
enquiry
-
Charge
of
committing
gross
irregularities
in
sourcing, disbursement etc. against the
bank's
employee
-
Right
of
cross
examination, when accrues - Held, right
of
cross-examination
accrues
in
disciplinary proceedings if the statement
of a person, who has testified, is in
dispute. If there is no dispute regarding
the documents and the facts, in such a
case there is no requirement for crossexamination. (Para 29)
B. Service Law - Departmental enquiry -
Standard
of
proof
-
Evidence
Act,
application thereof - Basic difference
between
departmental
enquiry
and
criminal trial, discussed - Held, charges in
a disciplinary proceedings are not required
to be proved like a criminal trial i.e.
beyond all reasonable doubt. Though the
inquiry officer performs a quasi-judicial
function, but he is not required to observe
the
strict
adherence
of
the
Indian
Evidence Act - In the departmental
inquiry standard of proof is not that of a
criminal
case
i.e.
beyond
reasonable
doubt. In departmental proceedings, the
proof is merely the preponderance of
probabilities. (Para 31 and 33)
C. Service Law - Departmental proceeding
- Judicial review - Scope - Held, the
scope of judicial review in departmental
proceedings is very limited. This Court can
interfere only if the inquiry was deficient
either procedurally or otherwise - Court