Prithviraj Bakshi v. Union Of India And Others

0. P. SHARMA

1. The petitioner has called into question the order of his compulsory retirement dated 21.5.96 passed by respondent-3 which reads as under :-

“Whereas the Divisional Organiser, SSB, J and K Division, Directorate General of Security) Cabinet Secretariat) is of the opinion that it is in the public interest to do so;

Now therefore, m in exercise of the powers conferred by Rule 56 of the Fundamental Rules/Rule 48 of the Central Civil Services (Pension) Rules, 1972, the Division Organiser hereby given notice to Shri Prithvi Raj Bakshi, Stenographer Cd. III in the office of the Area Organiser, SSB, Poonch, J and K Division, that he having completed thirty years of service, shall retire from service on the forenoon of the day following the date of expiry of three months computed from the date following the date of service of this notice to him.”

The petitioner challenges this order on the ground that the material relied by the competent authority to retire him in public interest was never communicated to him and as such the order is vitiated. He also attributes bias to the authorities directing his compulsory retirement besides questioning the same on the ground that neither any enquiry was held nor he was provided an opportunity to defend himself.

In the counter filed on behalf of the respondents,' it is stated that petitioner had earned adverse remarks for number of years in the course of his service which were communicated to him. The competent authority, it is further stated decided to retire him in public interest under Fundamental Rule- 56 and Rule-48 of the CCS (Pension) Rules, 1972 after considering the entire service record. Mr. Bhardwaj appearing for the petitioner argued that the order of pre-mature retirement casts a stigma and therefore, could be passed only after holding the inquiry. Since no inquiry was held it is argued, the order is liable to be quashed. He also pointed out that the order has been founded on the adverse remars against which the petitioner has made representation which is yet to be decided. Such adverse remarks, therefore, could not be relied to decide whether the retirement of the petitioner is in public interest' or not. Mr. Slathia on the other hand submitted that it is not the solitary adverse remarks, but the entire service record of the petitioner which had been considered by the competent authority before deciding to retire him from service. He also argued that order of compulsory retirement could be founded upon even upon the uncommunicated adverse remarks and, therefore, it was not necessary to decide the representation.

4. The question involved is whether the decision taken by the respondents in deciding to compulsorily retire the petitioner is supported by the service record. The apex court in the case of Union of India vs. P. S. Dhillon (1996) 3 SCC 672) held that :-

“In our opinion, the entire service record of the respondents including the record for the period priortol .4.85 had to be taken into consideration by the appropriate authority.”

5. The respondents were thus required to consider the entire service record of the petitioner and they have considered it as has been stated in the counter, the relevant portion of which is extracted below :-

“B. It is here submitted that the petitioner had earned adverse remarks for the 1966-67,1969-70,1970-71, 1991-92, 1992-93 and 1994-95 which were communicated to him as per entries in the ACRs. In 1970-71 the petitioner was placed under suspension pending an inquiry in a theft case. In 1992-93 he was awarded Censure on the basis of a Court of Inquiry constituted to inquire the loss of three Identity Cards (Blank) for his act of carelessness and' gross negligence. In 994-95 he earned adverse remarks for availing leave without adverse remarks for availing leave without permission and for drinking alcohol during office hours. The petitioner, it is fruitful to mention here, was issued Warning Memos under No. AOP/PRB-1792-93/275 dated 3.2.1995 and under No. AOP/PF-1/PRB/92-93/4138 dated 26.10.94 (copies whereof are enclosed herewith as Annexures R/1 and R/2, respectively for perusal.”

None of these facts have been controverted by the petitioner as he did not dare to file rejoinder. On the contrary some of these facts stand admitted by him in the writ petition. He has admitted that a departmental inquiry indicted him, but has thrown a challenge to the finding that stand concluded.

6. The question involved are three fold :-one whether the order of compulsory retirement is a punishment or implies any stigma, two whether the order impugned could, be passed without deciding the representation filed by the petitioner against the adverse remarks for the year 1994-95 which in other words means whether the order of compulsory retirement could be founded upon uncommunicated adverse remarks and three what are the para-metres for exercising jurisdiction under Article 226 of the Constitution of India read with section 103 of the State Constitution. All these questions have been answered by a three member Bench of the apex court in the case of Baikuntha Nath Das and Another vs. Chief District Medical Officer, Baripada (AIR 1992 SC 1020) wherein after referring to a catena of earlier decisions their lordships held as under :-

“32. The following principles emerge from the above discussion :

(i) An order of compulsory retirement is not a punishment. It implies no stigna nor any suggestion of misbehaviour.

(ii) The order has to be passed by the Govt. on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Govt.

(iii) Principles of natural justice havce no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine 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 since that no reasonable person would from the requisite opinion on the given material in short; if it is found to be a perverse order,

(iv) The Govt. (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 govt. 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 interference.”

7. While holding that uncommunicated remarks could also be relied upon while passing the order of compulsory retirement their lordships resolved the cleavage in the judicial opinion as it existed at that time by holding as under :-

29. “In this context, we may point out a practical difficulty arising from the simultaneous operation of two rules enunciated in Brij Mohan Singh Chopra (AIR 1987 SC 948). On one hand, it is stated that only the entries of last ten years should be seen, and (2) on the other hand, it is stated that if there are any adverse remarks therein, they must not only be communicated but the representations made against them should be considered and disposed of before they can be taken into consideration. Where do we draw the line in the matter of disposal of representation. Does it mean, disposal by the appropriate authority alone or does it include appeal as well. Even it the appeal is dismissed, the govt. servant may file a revision or make a representation to a still higher authority. He may also approach a court of Tribunal for expunging those remarks. Should the Govt. wait untill al these stages are over. All that would naturally take a long time by which time these reports would also have become stale. A govt. servant so minded can adopt one or the other proceeding to keep the matter alive, this is an additional reason for holding that the principle of M. E. Reddy (AIR 1980 SC 563) should be preferred over Brij Mohan Singh Chopra (AIR 1987 SC 948) and Baidyanath Mahapatra (AIR 1989 SC 2218) On the question of taking into consideration uncommunicated adverse remarks.”

So the argument that order of compulsory retirement of the petitioner could await till the representation was decided is no longer res Integra.

8. The above prepositions of law have been reiterated from time to time by the apex court. The latest in point of time being Allababad Bank Officers Association and Another vs. Allahabad Bank and others (1996) 4 SCC 504 held that:-

“5. The power to compulsorily retire a govt. servant is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in the service and also to dispense with the service of those whose integrity is doubtful so as to preserve purity in the administration Generally speaking, Service Rules provide for compulsory retirement of a govt. servant on his completing certain number of years of service record is reviewed at that stage and a decision is taken whether he should be compulsorily retired or continued further in service. There is no levelling of a charge or imputation requiring an explanation from the govt. servant. While misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, it held and there is no duty to hold and enquiry is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal they from the very basis on which the order is made, as pointed out by this Court in Shyam Lal vs. State of U. P. I. and State of Bombay vs. Saubhagchand M. Doshi

2. Thus, by its very nature the power to compulsorily retire a govt. servant is distinct and separate from the power to punish him by way of removal, dismissal etc. for misconduct. A govt. servant who is compulsorily retired does not lose any part of the benefit that he has earned during service. Thus, compulsory retirement differs both from dismissal and removal as it involves no penal consequences. Though compulsory retirement deprives a govt. servant of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get pension, that cannot be regarded in the eye of law as punishment as pointed out in the case of Shyam Lal and Union of India vs. M. E. Reddy 3. Thus, compulsory retirement differs from dismissal and removal both in its nature and incidence or effects. Therefore, compulsory retirement is not considered prima-facie and per so a punishment and does not attract the provisions of Article 311. This Court in a series of decisions staring with Shyam Lal case has held that compulsory retirement is neither a punishment nor a stigma; and, that can now well be regarded as settled legal position. But, if any stigma is attached to the order of compulsory retirement then it may be treated as an order of punishment in reality. So also, if a formal enquiry is made on an allegation of misconduct and a finding holding him guilty is recorded and thereafter the order of compulsory retirement is passed then such an order even when it does not contain any allegation or a stigmatic statement may be recorded as an order of punishment, attracting provisions of Article 311. The reason is that the court would infer in such cases that the real intention of the govt. was not to compulsorily retire its employee but to punish him.”

1. ARI 1954369.

9. Similarly their lordships in the State of Orissa vs. Ram Chandra Das (1996) 5 SCC 331) pointed out the extent to which interference by the court in matters of compulsory retirement could be justified by holding that :-

“3. This appeal by special leave arises from the judgment and order passed by the Orissa Administrative Tribunal in OA No. 340 on 1987 on 18.7.92. The respondent while working as Assistant Conservator of Forests was compulsorily retired from service by proceedings dated 1.8.1983 which came to be challenged by the respondent in the above proceedings. The Tribunal allowed the application on three grounds: (i) the respondent was allowed to cross the efficiency bar; (ii) since he was promoted, after the adverse remarks were made, the records were wiped out; and (iii) the entire record and overall consideration thereof was not done and, therefore, the exercise of the power of compulsory retirement under Rule 71 (a) was not valid in law. The question is whether the view taken by the Tribunal is correct in law ? It is needless to reiterate that the settled legal position is that the Govt. is empowered and would be entitled to compulsorily retire a govt. servant in public interest with a view to improve efficiency of the administration or to weed out the people of doubtful integrity or are corrupt but sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service. But the govt., before taking such decision to retire a govt. employee compulsorily from service, has to consider the entire record of the govt. servant including the latest reports.”

It was further held as under :-

“It is true that the govt. servant was allowed to cross the efficiency bar to enable him to avail of the benefits to draw higher scale of pay after crossing the efficiency bar. The adverse remarks made are after promotion. Even otherwise, the remarks from part of service record and character roll. The record of enquiry on conduct also would be material. Though minor penalty may be imposed on given facts and circumstances to act of misconduct, nevertheless it remains part of the record for overall consideration to retire a govt. servant compulsorily. The object always is public interest. The material question is whether the entire record of service was considered or not ? It is not for the court/tribunal to see whether the decision of the govt. to compulsorily retire the govt. servant is justified or not. it is for the govt. to consider the same and take a proper decision in that behalf. As stated earlier, it is settled law that the Govt. is required to consider the entire record of service. Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the govt. servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon the state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the govt. to consider the overall expediency or necessity to continue the govt. servant in service after he attained the required length of service or qualified period of service for pension. It is also made clear that in this case adverse entries were made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits.

Considering the record of the petitioner's adverse remarks earned by him during the service career and indictment/punishment suffered, it could hardly be gainsaid that a reasonable man would be in position to take a different view than the one impugned in the petition.

In view of the above, the order of compulsory retirement of petitioner does not suffer from any legal infirmity or procedural lapse, there is thus no substance in this petition which is dismissed without any order as to costs.