IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1038 of 2002 Reserved on: 16.11.2009. Date of decision: 15.12.2009 S.K.Sood …Petitioner Versus Indian Institute of Advanced Study Society and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 No. For the petitioner : Petitioner in person. For the respondents: Mr. Sandeep Sharma, Assistant Solicitor General of India. Per Deepak Gupta, J. This writ petition is directed against the order of the learned Central Administrative Tribunal dated 19th November, 2001 whereby O.A/T.A. No. T-5/HP/99 filed by the present petitioner has been dismissed. The petitioner after having worked in the Government of India joined service in the Indian Institute of Advance Studies in the year 1976. In October 1985 he was promoted as Estate Supervisor. He continued to work as Estate Supervisor till the year 1995 when the impugned order directing that he be compulsorily retired from service was passed. The petitioner by means of the original application challenged the impugned order before the 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 learned Tribunal. His main grouse was that initially he had filed a writ petition in this Court claiming revision of his pay-scale which was rejected and then he filed SLP before the Apex Court which was pending in the year 1995. According to the petitioner over period of time the work of Estate Section was withdrawn from him and he was left with virtually no work. He submits that this was done only to harass him so that he should not pursue his case before the Apex Court. He has challenged the impugned order whereby he has been compulsorily retired under FR56(j) on the ground that this order has been passed barely one year before his superannuation and is a stigmatic order and relevant factors have not been taken into consideration. The respondents contested the claim of the petitioner on various grounds. The main ground was that the record of the petitioner was abysmally poor and adverse entries have been recorded against him right from the very beginning. A number of adverse entries from the year 1969 to 1993 were relied upon. The respondents allege that for about five years the petitioner had not been doing any work and hence he was retired. Before retiring the petitioner a Review Committee was constituted to look into the personal file and records of the petitioner. This Committee went through the entire record and has relied upon the entries made in the ACR for the year 1969 which are definitely adverse. Similarly, the Committee also relied upon the entries made in the ACR of the petitioner for the year ending August 1993 by the then Director in which it is mentioned that whereas the petitioner maintains that he has not been given any work, his Reporting Officer states that he 3 does not do any assignment with any seriousness. Mr. J.S. Grewal the then Director has in fact stated that it is not possible to assess the work of the petitioner because he is actually not doing any work. The Committee also took into consideration the response given by the petitioner to the two letters dated 28th June, 1995 and 12th July, 1995 sent by the Director to the petitioner inquiring about his duties and responsibilities and came to the conclusion that since the petitioner had not responded to these letters it is clear that he did not perform his duties and responsibilities associated with the Office of Estate Supervisor. The Committee also took into consideration an allegation leveled against the petitioner that he had rented out three servant quarters belonging to the institute to persons who were neither employees of the institute nor in any manner concerned with the institute. The Committee also found that in case the petitioner had performed his duties as Estate Supervisor the illegal construction of multi storeyed houses of the Rashtrapati Nivas could have been prevented and the subsequent unpleasant litigation could have been avoided. The Committee came to the conclusion that the petitioner performed no duties and responsibilities for about five years and therefore his continuation in service is of no use and in fact may adversely affect the morale of the other employees of the institute. It was consequently recommended that he be retired under Rule 56(j). On going through the record, we find that prior to the constitution of this Committee the Chairman of the Committee Prof.Dr. Mrinal Miri had met Shri Durgadas Gupta Director 4 (Universities) Government of India, who on July 26, 1995 had written a letter to Dr. Miri that compulsory retirement is not a punishment and an errant official can be compulsorily retired under Rule 56(j). It is apparent that the Committee was constituted after consultation with Shri Durgadas Gupta. The petitioner has leveled various allegations against Prof. Miri but since he is not a party in personal capacity, we are not going into those allegations. However, we cannot ignore the order passed by a Division Bench of this Court in CWP No. 835 of 1994 titled INTACH vs. Union of India and others decided on 27.9.1994. INTACH approached this Court praying that the CPWD had raised certain construction in the Rashtrapati Nivas i.e. the campus of the Indian Institute of Advance Studies in violation of the law. The petition was filed with a view to stop the raising of such construction. The writ petition was rejected by this Court and it was found that the same has not been filed in the public interest. The Court commented adversely on the role played by Dr. Miri the then Director of the Institute. The Court held as follows:- “For the time being it is clear to this Court that the petitioner is agitating before this Court the personal grievance of the Director of the Indian Institute of Advanced Studies, who has admittedly made available the documents filled alongwith this petition. Apparently, when the Director is not able to do directly he is getting done through the petitioner. If this be so, it is the opinion of this Court that it disqualifies the Director to remain incharge of the said Institute. The first and foremost duty of the Director of such an important Institute is to take immediate action to preserve and protect its interest. If the Director thought that the interest of the institute was in any way prejudiced by the alleged illegal construction, he should have himself approached 5 this Court for necessary relief in accordance with law, supplying information and documents to the petitioner for this purpose amounts to securing the object by back door method and is not appreciated.” From the perusal of the aforesaid portion, it is apparent that in 1994 this Court found that it was Dr. Miri who was behind the so called public interest litigation and his role was adversely commented upon. Now the Committee is purporting to shift the blame on the petitioner. This cannot be permitted. It may, at the outset, be mentioned that the Committee could not have taken into consideration the record relating the year 1969 and 1980. The petitioner was being compulsorily retired in the year 1995 and at best his record for the last 5-7 years could have been looked into. An employee may not be very good in initial years of his service and he may earn adverse remarks. However, if he improves he cannot be compulsorily retired. Furthermore, the petitioner was admittedly promoted in the year 1995. His promotion was made on the recommendation of a Committee headed by a retired High Court Judge. Therefore, obviously, nothing prior to 1985 could have been taken into consideration while passing the order. Therefore, two of the factors, i.e. the letter of Shri Jain dated August, 1980 and the adverse entries made in the year 1969 were totally irrelevant for the purposes of recommending the compulsory retirement of the petitioner in the year 1995. We may also add that neither the letter dated 2nd August, 1980 relied upon by the Committee nor the adverse entries relied 6 upon by the Committee have every been communicated to the petitioner. We had called for the record of the Institute and given a number of opportunities to the learned Assistant solicitor General to show us even one document whereby the petitioner had been communicated his adverse entries or any letter had been issued to the petitioner asking him to improve his working. Except for the two letters dated 28th June, 1995 and 12th July, 1995 no other letter were produced. We may also add that as far as the allegation that the petitioner had rented out some servant quarters to some persons is concerned this allegation is only on the basis of an ex-parte report made by the Police. The petitioner was never associated with this report. A complaint was made to the police on 4.9.1995 with regard to renting out of certain quarters. How the police was concerned with this matter has not been clarified. The Superintendent of Police, Shimla sent a communication on 11.9.1995 in which it was stated that the allegation against the petitioner stands substantiated and he had rented out three out houses. This letter is dated 11.9.1995. It is not clear on which date it was received in the institute but the Committee in its report dated 14.9.1995 had taken note of this. The petitioner was never associated with any such inquiry and never given an opportunity to put forth his side of the case. Therefore, we feel that even this material could have been used against the petitioner. Coming to the letters dated 28th June, 1995 and 12th July, 1995 it would be pertinent to mention that on 28th June, 1995 the director Dr. Miri wrote a letter to the petitioner asking him as to 7 what are his duties and responsibilities as an Estate Supervisor. According to the petitioner, instead of replying to the letter he met Dr. Miri on 11th July to explain his position that duty chart had been framed for the post of Estate Supervisor and the work which was initially assigned to him as an Estate Supervisor was slowly taken away from him. However on 12th July, 1995 Dr. Miri wrote another letter stating that he had not received any response from the petitioner and the petitioner may give his response. Thereafter, the petitioner on 15th July, 1995 sent a reply to the Director in which he clearly stated that in response to the letter dated 28th June, 1995 he had met the Director on 11th July. He thereafter in his written reply again reiterated that he has been left with no work in the said section since work has been taken away from him over a period of time. According to the Institute this stand of the petitioner is not correct. However, it would be pertinent to mention that the petitioner alongwith his rejoinder has placed on record a letter dated 1st January, 1993 addressed to him by the Secretary of the Institute in which the petitioner has been informed that the telephone facility has been withdrawn from his residence and office and that the institute has reshuffled the duties earmarked to the Estate Supervisor. It was clearly mentioned that thereafter the only duty of the petitioner was to liaison with the CPWD for repair and maintenance of the Estate and follow up action and all other items of work previously looked by the Estate Supervisor shall be looked after by some other Section. It is, therefore, apparent that the institute itself had withdrawn the work from the petitioner. 8 It may be that the petitioner was not doing his work properly. However, in that event it was incumbent upon the employer to have sent some letters to the petitioner to improve his working. As pointed out above in his almost 29 years of service the employer has not produced even a single letter wherein there is any complaint regarding the functioning of the petitioner which has been communicated to him. No person can be condemned unheard. The employer must give the employee a chance for improving his functioning and material which has not been communicated to the employee cannot be taken into consideration which ordering his compulsory retirement. It may be true that while assessing the suitability of an employee and deciding whether an employee should be continued in service under Rule 56(j) the old record can be looked into but this record must be such which by itself shows that the petitioner is not functioning in a proper manner. As pointed out by us above, the Committee which considered the case of the petitioner looked into certain matters which were so old that they had become irrelevant. The allegation with regard to renting out the servant quarters were made only a few days before the report and without associating the respondent. We also find that the Committee has taken into consideration certain charges which were never substantiated against the petitioner and for which no inquiry had been held and these charges were such that they would caste a stigma on the petitioner. We may notice that the petitioner had only about one year to retire and at this stage of his career it was not appropriate for 9 the Committee to have recommended his compulsory retirement that too on totally extraneous consideration. Keeping into consideration all these factors, we are of the considered opinion that the order whereby the petitioner has been compulsorily retired is based on totally irrelevant material which could not have been taken into consideration and as such the order is set-aside. The petitioner shall accordingly be deemed to be in service till he attained the age of superannuation in normal course. The respondents are directed to grant all consequential benefits to the petitioner within four months from today. The monetary benefits shall be paid to the petitioner alongwith interest @ 6% per annum from the date when the amount fell due till payment of the amount. The petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ), J. 15th December, 2009 ( V.K.Ahuja), J. ™