IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7 of 2011 JAI PRAKASH PASWAN, SON OF SHRI SARYUG PASWAN, RESIDENT OF VILLAGE + P.O. SALARPUR, P.S. PARBATTA, DISTRICT-KHAGARIA. .……………………………………………………….PETITIONER. Versus 1. THE UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF LABOUR, SHRAM SHAKTI BHAWAN, NEW DELHI. 2. THE CENTRAL PROVIDENT FUND COMMISSIONER, EMPLOYEE’S PROVIDENT FUND ORGANISATION, BHAWISHYA NIDHI BHAWAN, 14 BHIKAJEE CAMA PLACE, NEW DELHI. 3. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEE’S PROVIDENT FUND ORGANIZATION BIHAR, REGIONAL OFFICE AT R. BLOCK, PATNA. 4. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEE’S PROVIDENT FUND ORGANIZATION BHAGALPUR. 5. SHRI PARITOSH KUMAR, THE THEN ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEE’S PROVIDENT FUND ORGANIZATION BHAGALPUR THROUGH THE REGIONAL FUND COMMISSIONER, EMPLOYEE’S PROVIDENT FUND ORGANISATION BIHAR, REGIONAL OFFICE AT R. BLOCK, PATNA. …………………………………………………RESPONDENTS. ----------- For the Petitioner : Dr. Harendra Nath Ojha & Mr. Arbind Kumar Tripathi, Advocates. For the Respondent : Mr. Satyendra Kumar, C.G.C. No.1 For the Respondent : Mr. R.S. Pradhan, Senior Advocate. Nos.3 and 4 ---------------- 5. 2.5.2011. Heard learned counsel for the petitioner, learned counsel for the Respondent No.1, the Union of India and 2 learned counsel for the Respondent No.3, the Regional Provident Fund Commissioner, Employee‟s Provident Fund Organization, Bihar and the Respondent No.4, the Assistant Provident Fund Commissioner, Employee‟s Provident Fund Organization Bhagalpur. 2. The petitioner has preferred this writ petition against the order of the Central Administrative Tribunal, Patna Bench, Patna, dated 3rd of December, 2008 contained in Annexure-„5‟, whereby O.A. No.883 of 2004, preferred by the petitioner, was dismissed and no interference was made with the order of compulsory retirement under FR- 56(j) dated 15.1.2004 and the order dated 28.9.2004 rejecting the petitioner‟s representation against the order of compulsory retirement. 3. The petitioner claims that he had smooth career and got timely promotions and he was never awarded punishment during his service career and has been compulsorily retired on the basis of adverse A.C.Rs. showing him to be average or below average during the year 1998-99 and 1999-2000 by ignoring much improved grading in the A.C.Rs. of succeeding three years. 4. Learned counsel appearing for the parties have 3 taken us to the relevant A.C.Rs. starting from the year 1996- 97 till the year 2002-03, which are available on record as part of Annexure-„9‟ series. 5. Before taking note of all the relevant A.C.Rs., it must be noticed that as per the policy decision of the concerned authorities, for exercise of power under FR- 56(j) the entire service record of the Officer was required to be considered but as mentioned in the policy decision contained in Annexure-„3‟-“no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding five years or where he has been promoted to a higher post during that five years period , his service in the higher post has been found satisfactory.” There is no such stipulation however, in a case where the employee is to be retired on grounds of doubtful integrity. The policy decision makes a conscious distinction between pre-mature retirement on the ground of doubtful integrity and on the ground of ineffectiveness. In paragraph-4 of the policy decision (Annexure‟3‟), it has been mentioned that damage to public interest could be marginal if an employee is found ineffective during last year of service but the same could not be so in the case involving doubtful integrity. 4 6. It is not in dispute that the integrity of the petitioner has not been doubted by the reporting authority or the reviewing authority. 7. In the present case, entries in the A.C.Rs. of last five years before the order for pre-mature retirement in 2004 go to show that in the year 1998-99, no evaluation was made whether he was below average, average or above average in performance and effectiveness. Comments were confined to the effect that he had no grip over work and was not sincere. In the next year, the A.C.R. shows him in poor estimate on various grounds and A.C.R. of this year was considered to be adverse and communicated to the petitioner. Thereafter, in the A.C.R. of the year 2000-01, the reporting officer as well as the reviewing officer found him to be well disciplined having average knowledge of rules and regulations, prompt in work and the performance was average. In the year 2001-02, he was again found to be disciplined and loyal having average knowledge in the accounts work and the performance was above average. In the last relevant year, i.e., 2002-03, the entry comes as such: “He has sound health, well disciplined and loyal. His over all performance during the period under report is good. He has average 5 knowledge of rules and regulations. His dealing with fellow employees is cordial.” 8. On going through the detailed order, whereby representation of the petitioner was rejected and also the impugned order of the Tribunal, it is noticed that the average, above average and good performance noted in the A.C.Rs. of last three years of service of the petitioner have not been noticed by the authorities. The last A.C.R. has been totally ignored and the other two A.C.Rs. have wrongly been treated to be adverse or poor. These errors are apparent on the face of the records. In the facts of the case, we find that the concerned authorities failed to apply their mind to the relevant A.C.Rs., particularly, the last three A.C.Rs. and they have not paid special attention to the A.C.Rs. of last five years before passing order for compulsory retirement. On consideration of A.C.Rs. of last five years, it is not possible to come to a reasonable conclusion that the petitioner had become a dead wood or ineffective in service. Admittedly, there was no grievance against his integrity. 9. In the above view of the matter, we find merit in this writ petition. The impugned orders including that of the Tribunal are set aside. Accordingly, this writ petition is 6 allowed. 10. Ordinarily, we would have directed the authority to reinstate the petitioner in service but admittedly he reached the age of superannuation on 5.1.2009. In that view of the matter, we direct the authorities to treat the petitioner to be in service till he reached the age of superannuation and pay him salary and emoluments accordingly within three months. The retiral benefits will have to be sanctioned or re-sanctioned by treating the petitioner as having superannuated on 5.1.2009. That also must be done without any delay. P.S. (Shiva Kirti Singh, J) ( Dr. Ravi Ranjan, J)