1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.9422/07 State of Rajasthan vs. Shiv Narain Mathur & Ors. Date of order : 27/2/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri N.A. Naqvi, AAG for the petitioner. Shri C.P. Sharma for the respondent. ****** Heard learned counsel for the parties. This writ petition has been filed challenging the judgement of Rajasthan civil Services Appelate Triubnal dated 18.4.07 by which the order of compulsory retirement of the petitioner dated 11.10.2000 has been quashed. Shri N.A. Naqvi, learned AAG has argued that the respondent had many adversities in his service records. Besides penalty imposed upon him, he had the adverse entries in the APRS of the year 1993-94. Learned counsel submitted that on three occasions, the respondent was served with memos calling upon him to submit explanation but ultimately the matters were dropped. Besides that a notice under Rule 17 of the Rajasthan Civil Services (Classification, Control and 2 Appeal), Rules, 1965 was served on the respondent in which he was placed under suspension but ultimately this matter was dropped. Learned counsel submitted that there was a charge sheet pending against the respondent at the time when the order of his compulsory retirement was passed. Charge sheet was issued on 18.8.1999 in which there were serious allegations against the petitioner. It was argued that the Tribunal has exceeded its jurisdiction in interfering with the order of compulsory retirement. The impugned order be therefore set aside. Shri C.P. Sharma, learned counsel for the respondent opposed the writ petition and submitted that except one warning that was issued to the respondent as long ago as 1986 and the adverse remarks in the APRS of the respondent of the year 1993-94, there was no adversity in the service record of the respondent. Mere pendency of the departmental enquiry cannot justify decision for dispensing with services of an employee by compulsorily retiring him. It is contended that in so far as, three memos calling upon explanation of the respondent 3 are concerned, he submitted explanation, which was accepted. Such memos thus cannot be made use of by the petitioner for getting rid of him. Learned counsel submitted that according to Government's own instructions issued by the Department of Personnel when an employee is facing departmental enquiry, unless such enquiry is taken to its logical conclusion, he cannot be compulsorily retired. Reference is made to one such Circular dated 20.7.01. Learned counsel relied on the judgement of State of Rajasthan vs. Abdul Rehman & Anr., S.B. Civil Writ Petition No.9230/02 decided on 13.12.2002 and submitted that in some what identical circumstances, this Court held that on mere penalty of stoppage of one grade increment without cumulative effect and one censure, an employee could not be compulsorily retired. Upon hearing the learned counsel for the parties and perusing the judgement passed by the Tribunal, I find that Tribunal was persuaded to take the view that it has taken of the matter in the facts of the present case that there was only one warning awarded 4 to the petitioner by order dated 17.6.1981 and there was only one adverse remarks against him in the APRS of the year 1993-94. As far as three memos that were issued to the respondent are concerned, the Tribunal said that when upon acceptance of the explanation of the respondent, the matters were dropped, they could not be used against the respondent. It was observed that no material was placed before the Tribunal to show that any of them, disciplinary action was initiated against the respondent on the basis of these memos. The Tribunal relying on the judgement of Supreme Court in (1992) 2 SCC 299, Baikunth Nath Das & Anr. vs. Chief Medical & Health Officer, Bairipada & Anr. and 1998(4) SCC 92, State of Punjab vs. Gurdas Singh held that the entire service record of the employee was required to be examined for overall evaluation of his utility in service so as to come to the conclusion whether he is required to be compulsorily retired from service in public interest. In the present case, I find that out of two adversities on which the respondent proceed to compulsorily retire 5 the respondent, one was the warning issued to him and other was the adverse remarks in the APRS of the year 1993-94. Mere issuance of charge sheet that was issued in 1999 obviously could not justify invocation of the extraordinary power of compulsorily retiring an employee when in the normal course, the petitioners were required to take a the disciplinary enquiry to its logical conclusion and pass appropriate order of penalty. The exercise of power of compulsory retirement in the facts of the case was rendered arbitrary on facts. It appears that the petitioners decided to take a short cut method to get rid of the respondent who was already facing the disciplinary enquiry pursuant to the charge sheet dated 18.8.99. In the facts of the case, the petitioner was not justified to take a view that the respondent had become a liability to service or a dead wood so as to be chopped off. However, it is made clear that quashment of order of compulsory retirement should not be an impediment for the petitioner to revive the disciplinary enquiry that was pending against the 6 petitioner. The writ petition is accordingly dismissed with the aforesaid liberty to the petitioner. (MOHAMMAD RAFIQ), J. RS/