TMI Blog1992 (2) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... re a government servant compulsorily. 2. The appellants in both the appeals have been compulsorily retired by the government of Orissa in exercise of the power conferred upon it by the first proviso to Rule 71 (a) of the Orissa Service Code. Since the relevant facts in both the appeals are similar, it would be sufficient if we set out the facts in Civil Appeal No. 869 of 1987. 3. The appellant, Sri Baikuntha Nath Das was appointed as a Pharmacist (then designated as Compounder) by the Civil Surgeon, Mayurbhanj on 15.3.1951. By an order dated 13.2.1976 the government of Orissa retired him compulsorily under the first proviso to sub-rule of Rule 71 of the Orissa Service Code. The order reads as follows: ``In exercise of the powers conferred under the first proviso to sub-rule (a) of rule 71 of Orissa Service Code, the Government of Orissa is pleased to order the retirement of Sri Baikunthanath Das, Pharmacist now working under the Chief District Medical Officer, Mayurbhanj on the expiry of three months from the date of service of this order on him. By order of the Governor.'' 4. The petitioner challenged the same in the High Court of Orissa by way of a writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision, it opined. 6. The adverse remarks made against the petitioner - in the words of the High Court - are to the following effect: ......most insincere, irregular in habits and negligent and besides being a person of doubtful integrity, he had been quarrelsome with his colleagues and superior officers and had been creating problems for the administration. 7. Rule 71 (a) alongwith the first proviso appended thereto - which alone is relevant for our purpose - reads thus: 71. (a) Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, except a ministerial servant who was in Government service on the 31st March, 1939 and Class IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55th year of age in order to determine whether he/she should be allowed to remain in service upto the date of the completion of the age of 58 years or retired on completing the age of 55 years in the public interest: Provided that a Government servant may retire from service any time after complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last sentence of Note 1 to Article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity. 11. In Shivacharana v. State of Mysore, A.I.R. 1965 S.C. 280, another Constitution Bench reaffirmed the said principle and held that Whether or not the petitioner's retirement was in the public interest, is a matter for the State Government to consider and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of malafides. 12. As far back as 1970, a Division Bench of this court comprising J.C. Shah and K.S. Hegde, JJ. held in Union of India v. J.N Sinha, [1971] 1 S.C.R. 791, that an order of compulsory retirement made under F.R. 56 (j) does not involve any civil consequences, that the employee retired thereunder does not lose any of the rights acquired by him before retirement and that the said rule is not intended for taking any penal action against the government servant. It was pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant was overlooked both in the year 1964 as well as in 1965 by the Departmental Promotion Committee and the U.P.S.C. On August 15, 1967, on his completing 55 years of age, he was compulsorily retired under F.R. 56(j). Thereupon he filed three writ petitions in the High Court challenging the said adverse entries as also the order of compulsory retirement. The writ petitions were dismissed whereupon the matters were brought to this court on the basis of a certificate. The Constitution Bench enunciated the following propositions: 1. The rules framed by the Central Water and Power Commission on the subject of maintenance of confidential reports show that a confidential report is intended to be a general assessment of work performed by the government servant and that the said reports are maintained to serve as a data of operative merit when question of promotion, confirmation etc. arose. Ordinarily, they are not to contain specific instances except where a specific instance has led to a censure or a warning. In such situation alone, a reasonable opportunity has to be afforded to the government servant to present his case. No opportunity need be given before the entries are ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sty or integrity that a particular officer enjoys. It will indeed be difficult if not impossible to prove by positive evidence that a particular officer is dishonest but those who have had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character not only of his performance but also of the reputation that he enjoys . 16. The Learned Judges referred to the decisions in R.L.Butail,J.N.Sinha and several other decisions of this court and held that the confidential reports, even though not communicated to the officer concerned, can certainly be considered by the appointing authority while passing the order of compulsory retirement. in this connection, they relied upon the principle in J.N. Sinha that principles of natural justices are not attracted in the case of compulsory retirement since it is neither a punishment nor does it involve any civil consequences. 17. the principle of the above decision was followed in Dr. N.V.Puttabhatta v.State of Mysore, A.I.R. 1972 S.C. 2185, a decision rendered by A.N.Grover and G.K.Mitter , J.J. Indeed, the contention of the appellant in this case was that since an order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as terminated on the basis of adverse remarks made in his assessment roll. A Bench comprising three learned Judges (Fazal Ali, A.C. Gupta and Kailasam, JJ.) held that the order of termination in that case was an order of termination simpliciter without involving any stigma or any civil consequences. Since the respondent was a probationer, he had no right to the post. The remarks in his assessment roll disclosed that the respondent was not found suitable for being retained in service and even though some sort of enquiry was commenced, it was not proceeded with. The appointing authority considered it expedient to terminate the service of the respondent in the circumstances and such an order was beyond challenge on the ground of violation of Article 311. 21. This court has taken the view in certain cases that while taking a decision to retire a government servant under Rule 56(j), more importance should be attached to the confidential records of the later years and that much importance should not be attached to the record relating to earlier years or to the early years of service. In Brij Bihari Lal Agarwal v. High Court of Madhya Pradesh, [1981] 2 S.C.R 29, upon which strong relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there were two adverse entries. In neither of them, however, was his integrity doubted. These adverse remarks were not communicated to him. The Bench consisting of E.S. Venkataramiah and K.N. Singh JJ. quashed it on two grounds viz., 1. It would not be reasonable and just to consider adverse entries of remote past and to ignore good entries of recent past. If entries for a period of more than 10 years past are taken into account it would be an act of digging out past to get some material to make an order against the employee. 2. In Gurdyal Singh Fiji v. State of Punjab, [1979] 3 S.C.R. 518 and Amarkant Chaudhary v. State of Bihar, [1984] 2 S.C.R. 299, it was held that unless an adverse report is communicated and representation, if any, made by the employee is considered, it may not be acted upon to deny the promotion. The same consideration applies where the adverse entries are taken into account in retiring an employee pre-maturely from service. K.N. Singh, J. speaking for the Bench observed: it would be unjust and unfair and contrary to principles of natural justice to retire pre- maturely a government employee on the basis of adverse entries which are either not communic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said remarks and if any representation was made it should have been considered and disposed of before they could be taken into consideration for forming the requisite opinion. In other words, it was held that it was not open to the Review Committee and the government to rely upon the said adverse entries relating to the years 1981-82 and 1982-83, in the circumstances. Unfortunately, the decision in J.N. Sinha was not brought to the notice of the learned Judges when deciding the above two cases. 25. The basis of the decisions in Brij Mohan Singh Chopra and Baidyanath Mahapatra, it appears, is that while passing an order of compulsory retirement, the authority must act consistent with the principles of natural justice. It is said to expressly in Brij Mohan Singh Chopra. This premise, if carried to its logical end, would also mean affording an opportunity to the concerned government servant to show cause against the action proposed and all that it involves. It is true that these decisions do not go to that extent but limit their holding to only one facet of the rule viz., `acting upon undisclosed material to the prejudice of a man is a violation of the principle of natural just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sub-clauses. The power is executive and the opinion requisite before an order can be made is of the Central Government or the Board as the case may be and not of a Court. Therefore, the Court cannot substitute its own opinion for the opinion of the authority. But the question is, whether the entire action under the section is subjective? 27. The learned Judges then referred to certain other decisions including the decision in Vallukunnel v. Reserve Bank of India, AIR 1962 S.C. 1371 and concluded as follows: Therefore, the words, reason to believe or in the opinion of do not always lead to the construction that the process of entertaining reason to believe or the opinion is an altogether subjective process not lending itself even to a limited scrutiny by the court that such reason to believe or opinion was not formed on relevant facts or within the limits or as Lord Radcliffe and Lord Reid called the restraints of the statute as an alternative safeguard to rule of natural justice where the function is administrative. 28. The blurring of the dividing line between a quasi- judicial order and an administrative order, pointed out in Kraipak has no effect upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y one or two remarks, favourable or adverse. They would form an opinion on a totality of consideration of the entire record - including representations, if any, made by the government servant against the above remarks - of course attaching more importance to later period of his service. Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a government servant. 31. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the Rules/orders in that behalf. Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under F.R.56(j) (or the Rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order. (iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interfere. Interference is permissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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