An employer can compulsorily retire an employee if an overall assessment of their performance indicates that their continuance in service is not in public interest, even if a departmental enquiry is pending.

C.K. Prasad, J.

1. This writ application was filed by the petitioner Vimal Kumar Shri vastava for quashing the order dated 7.12.1985 passed by the District & Sessions Judge, Durg whereby in exercise of the powers conferred under Rule 42 (b) of the M.P. Civil Services (Pension) Rules, 1976 the petitioner was directed to be compulsorily retired on completion of 25 years of service. During the pendency of the writ petition, the petitioner died and this writ petition is being pursued by his legal heirs.

2. Short facts giving rise to the petition are that during the relevant time the petitioner was working as an officiating Uppar Division Clerk in the office of the District & Sessions Judge, Durg. A Departmental Enquiry was initiated against the petitioner vide order dated 17.8.1964, charge sheet was served on the employee and he submitted his reply to the charges on 29.1.1984. In the reply the petitioner denied the charges levelled against him. After submission of the reply an Enquiry Officer was appointed and while the aforesaid enquiry was pending, by the impugned order dated 17.8.1984, the petitioner was directed to be compulsorily retired. According to the petitioner he was communicated of the adverse remark in the confidential report for the year 1982-83 to 1983-84 against which he had filed representation and it is his stand that his representation was pending, still the order of compulsory retirement was passed. It is the stand of the petitioner that in the confidential report of the years 1979-80 to 1983-84 his performance was held to be poor except for the year 1981-82 for which his performance was recorded as catagory 'C' i.e. average. According to the petitioner the entry of poor remarks in his confidential reports are the subject matter of enquiry which was initiated against him.

3. According to the petitioner the order of compulsory retirement during the pendency of a departmental enquiry, is not permissible. His further stand is that although the order impugned indicates that he is being compulsorily retired in public interest, but the details thereof have not been given in the order, which in the submission of the learned counsel for the petitioner, vitiates the impugned order. The petitioner further contends that before passing the order of compulsory retirement, notice was not given which is mandatory requirement and in that view of the matter the order of compulsory retirement is first to be quashed. His further submission is that the impugned order was neither proceeded by payment of three months salary or notice and this renders the order illegal.

4. The stand of the respondents in the return is that the confidential report of the petitioner for the years 1979-80 to 1983-84 were adverse and the adverse remarks given by the District & Sessions Judge in the confidential report of the petitioner dated 31.3.1981 read as follows :

He is another useless man and so his grade is category 'D'.

The entry in the annual confidential report of the petitioner dated 31.3.1983 reads as follows :-

He talks much but does little. He never takes interest in work. He does a poor knowledge of the work and seems to be passing time.

It is the stand of the respondents that the District and Sessions Judge who is is appointing authority of the petitioner assessed the entire service record and over all performance and found him useless for being retained in service, in public interest. The petitioner had completed qualifying service of 25 years and attained the age of 50 years and accordingly the District & Sessions Judge referred the matter, recommending compulsory retirement of the petitioner under Rule 42 of the M.P. Civil Services (Pension) Rules, 1976 to the Registrar of the High Court and ultimately the State Government accorded sanction for compulsory retirement of the petitioner by memo dated 1.11.1985. The Registrar of this Court thereafter vide letter dated 3.12.1985 permitted the District and Sessions Judge to lake action for comp