TMI Blog1994 (8) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... y 25. 1993 dismissed the petition. Thus this appeal. 3. It was contended and stated in the grounds of appeal that despite his request, the tribunal did not call for his service record nor considered the totality of his service. It relied upon the only report of the Review Committee which in turn was founded upon the adverse remarks based on the report of the Principal. We directed the State to produce the entire record of the appellant and his confidential reports in his service record of his character roll. Accordingly they have been placed before us. We have perused the entire record. The record disclosed that from the year 1973-74 onwards, the year in which the College was taken over, his work was commended as good, sincere and satisfactory. He is a sincere teacher, helpful in maintaining discipline, a strong-minded person and willing worker. For the year 1980, the government communicated that his work was unsatisfactory for the years 1976-77, while the Principal recorded for the same year that his integrity was goods, his zeal was fair, his work was fair but relations with the students was average. Same was the report for the year 1979-80. For the year 1980-81, the Principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teacher . In the year 1989-90 it was reported that his knowledge on the subject is good, his work as a teacher is good, his work in the department is good as a Vice President of the humanitarian society and as a Judge of several debate competitions he exhibited good work, his relationship with the students is good, his work as a proctor fair, official conduct good, zeal fair, integrity is good and in the general remarks he is a polite and reliable officer which received on June 20, 1990 and the same was the remarks for the year 1990-91. 4. The question, therefore is whether the government, while exercising its powers of compulsorily retiring the appellant under Rule 71(a) of Orissa Service Code and G.A. Department circular No. 30495/GA, dated November 24 1987, had exercised its power in the public interest and the order is legal. It is contended in the counter affidavit filed in this Court as well as in the tribunal that the sole foundation for the exercise of the power of retiring the appellant compulsorily from service is the gross adverse remarks for the period 1.4.1987 to 29.2.1988 and the recommendation of the Review Committee. It is well settled law from a leading jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in exercising the power under Rule 56(j) of the Fundamental Rules and that no prior opportunity should be given to the concerned government retirement. That was found favour with the High Court and was confirmed by this Court. 5. In B.R. Chadha v. Union of India and Ors. (1980)IILLJ459SC , this Court while considering the scope of judicial review of the exercise of the power to compulsorily retiring a government servant held at p.325 that the Administration, to be competent, must have servants who are not plagued by uncertainty about tomorrow. At the age of 50 when you have family responsibility and the somber problems of one's own life's evening, your experience, accomplishments and fullness of fitness become an asset to the Administration, if and only if you are not harried or worried by 'what will happen to me and my family?' 'Where will I go if cashiered?' 'How will I survive when I am too old to be newly employed and too young to be superannuated?' These considerations become all the more important in departments where functional independence, fearless scrutiny, and freedom to expose evil or error in high places is the task. And the Ombud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when a man's career is at stake is a confidence trick contrary to public interest. Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision-making. The appropriate authority, not the court, makes the decision, but even so, a caveat is necessary to avoid misuse 7. This Court considered the whole service record. In that case some anterior record in which the Review Committee found that the performance of the appellant was below average and that, therefore, he was compulsorily retired. But the service of latter years disclosed that there was considerable improvement in the efficiency of the appellant. While considering the exercise of the power in that background this Court held that one wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be wrong cut. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the government or the Review Committee 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 so considered would naturally include the entries in the confidential records Character rolls, both favourable and adverse. The order of compulsory retirement is not liable to be quashed on mere showing that while passing it uncommunicated adverse remarks were taken into consideration. Further this does not mean that judicial scrutiny is excluded altogether. Though the court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is mala fide or passed on no evidence or that is arbitrary, in the sense that no reasonable person would form the requisite opinion or the given material, in short, if it is found to be a perverse order, the remedy under Article 226 is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions. 9. It is thus settled law that though the order of compulsory retirement is not a punishment and the government employee is entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by extraneous consideration or arbitrary in retiring the government officer compulsorily from service. 10. Keeping these principles in mind and on considering the facts extracted hereinbefore we find that the exercise of power by the government falls in the category of arbitrary exercise of power or failure to take the total record of service into consideration objectively but has taken only the solitary adverse report for the year 1987-88 as a foundation to compulsorily retire the appellant from service. The Review Committee as well considered only that report, neither earlier reports nor subsequent reports were considered. It is seen that admittedly the appellant was promoted as a Reader after the adverse report and the adverse comments were communicated to him and in a mechanical way they rejected the report to expunge the adverse remarks, even without going into the contention of the appellant that the then Principal was actuated with mala fides by submitting wrongly or falsely in confidential reports which appear to have some foundation or suspicion for such a contention consistent record earlier and latter periods would establish that the appellant has meritorious reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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