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PETITIONER: U.P. JAL NIGAM & ANOTHER

       Vs.

RESPONDENT: SYED KHADIM WARIS

DATE OF JUDGMENT13/11/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1995 SCC  Supl.  (4) 638 1995 SCALE  (6)548

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The respondent-Executive Engineer, on attaining the age of fifty  was compulsorily  retired by the Uttar Pradesh Jal Nigam in exercise of powers under Rule 56-C of the Financial Hand  Book   Part  II,   Volumes  2  to  4.  The  respondent successfully challenged  that order before the Lucknow Bench of the Allahabad High Court by means of a writ petition. The prime  consideration  which  weighed  with  the  High  Court deciding in his favour was that an adverse entry of the year 1983-84, though  communicated to the respondent on 9-4-1985, had  been   put  to  use  to  arrive  at  the  result,  when representation of  the respondent  against the adverse entry was pending  before the  Nigam. As viewed by the High Court, that particular  entry could  not be  put to  use unless the representation was  decided. The  High Court  has emphasised this aspect in its judgment at more than one place. The High Court has  also blamed the Nigam for not producing before it the text  of the  entry pertaining to the year 1983-84 so as to apprise itself of the nature and seriousness thereof.      The Nigam  asserts to  the contrary.  It says  that not only was  the entry  adverted to  in the  counter  affidavit filed by  it before  the High Court, but it was specifically averred therein  that the  representation of  the respondent received had  by itself  been placed  before  the  Screening Committee dealing  with the  matter  whereafter  action  for compulsory  retirement   was  taken.   It  seems   that  the supportive records of the same, were not produced before the High Court.  It is suggested that had the High Court thought of making  use of  the material on official record, it could certainly have  asked the counsel for the Jal Nigam to place the record before it. Seemingly, the pleadings alone engaged attention of  the High Court and it went on to hold that the sole adverse  entry for  the  year  1983-84,  against  which representation of  the respondent  was pending, could not be taken into  account. It  is on  that basis that the order of compulsory retirement was quashed.

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    Now, we  have been apprised of the total service record of the respondent, wherefrom we know now about the nature of the said  entry and  the representation  and their placement before the  Screening Committee.  Another factor  which  has been discovered,  and has  rather frankly been put before us by learned  counsel for  the Nigam  is that  the  subsequent years’entry i.e.  for the  year 1984-85,  is also adverse to the respondent,  but the  same has  not been communicated to him and  yet it  was  employed  in  passing  the  orders  of compulsory retirement.  It  might  well  be  that  the  said adverse  entry   of  the   year  1984-85  by  itself  or  in conjunction with  the entry  of the  year 1983-84 might have influenced the authorities much more than the singular entry of  the  year  1983-84  to  take  action.  Mention  of  this particular is  not meant  to  reinforce  the  basis  of  the reasoning of  the  High  Court  or  employed  as  additional reasoning in  support, because  that entry  has not yet been ripened to  be taken  into account  since it  has  not  been communicated to  the  respondent  soliciting  representation from him.      Taking an overall view of the matter and in order to do complete  justice   between  the   parties,  we   think   it appropriate that  the impugned  order  of  the  High  Court, deficient as  it is,  be upset and the matter be put back to the stage prior to compulsory retirement. Sequally, it would mean that  the respondent  would deemingly be in the service of the  Nigam regarding  whom step  of ctspulsory retirement was being  thought of,  but subject to it being backed up by the entire  service record  on completion, after the adverse entry of  the  year  1984-85  stands  communicated  to  him, against which he would have the opportunity to represent and consideration, and  after a  final view is taken. We make it clear that by virtue of this order the deemed continuance of the respondent  in service  would not be a bar to the taking of the  step of compulsory retirement as if at the age of 50 years subject to the final back up of the record.      Thus, in  order to  achieve the  above result, we grant leave and in the same breath allow the appeal, setting aside the impugned  order of  the High  Court and streamlining the cause between  the parties in the manner stated above. It is necessary for the Nigam to communicate to the respondent the entry of  the year  1984-85 and  attract representation from him  time  bound.  It  may,  then  pass  a  fresh  order  of compulsory retirement  on the  basis of  the entire  record, should the  facts and  circumstances  justify,  which  order would then  govern the fate of the case relating back to the date of the original order. It is further clarified that the respondent, on  the present day, can in no way be taken back in service  because of his attaining in the meantime the age of 58  years. Whatever eventually is the outcome, that would govern the  fate of the respondent. He need not thus for the present be  paid anything  more than his pensionary benefits till variation is warranted. Expeditious disposal by the Jal Nigam is ordered. No costs.