B.L Hansaria, J.:— An honest and efficient civil service is a must to run any government. The civil servants discharge a very vital Junction in the administration of any country. They have, therefore, to keep themselves fit and trim. Any slackness, inefficiency or corruption is bound to have far-reaching effect. Howsoever high and useful any idea might be, the same would get boggled down if there is no efficient machinery to implement the same. A power has, therefore, to vest in the Government to keep a check on the functioning of the civil servants. It must be allowed to ask a civil servant to leave the service in good grace if the Government be of the opinion that he has outlived his utility. It is with the scope and ambit of this right with which we are concerned in this petition under Article 226 of the Constitution of India.
2. The aforesaid question has arisen on these facts.
3. The petitioner entered the service of the Government of Assam as Assistant Forester on 7.5.1946 In 1956, he was promoted as Deputy Ranger and thereafter as Forester in 1967. While serving as forest Ranger, he faced a departmental proceeding in 1970 on five charges, the sum and substance of which are:
(i) misappropriation of a sum of Rs. 850.00;
(ii) unauthorised expenditure of Rs. 4446.39,
(iii) operation of 229 logs without sanction of the competent authority;
(iv) unauthorised operation of a huge number of trees at a cost of Rs. 4,446.39; and
(v) unauthorised expenditure of Rs. 4,446.39.
4. It may be stated that all the charges related to the period when the petitioner was serving as a Beat Officer. In the enquiry which followed the petitioner was found not guilty in respect of the first four charges. The fifth charge was, however, held to have been proved. Basing on the report of the Inquiry Officer, a penalty of stoppage of increment for three years was passed. On an appeal being preferred, the punishment was set aside on the ground of some procedural irregularities. It was, however, observed in the appellate order that a fresh proceeding might be started against the petitioner. No fresh proceeding was however initiated.
5. Then came the Emergency and cases of all the officers who had completed 25 years of service or 50 years of age came to be reviewed. The Central Screening Committee in their fourth sitting held on 10.10.75 examined the cases of all the Forest Hangers and stated as below with respect to the petitioner:—
“Sri S.K Bhattacharjee, Forest Ranger: His records has been fairly good. But in 1969-70 a proceeding has been drawn up against him and he was found guilty of serious charges. But the proceedings was quashed by the Govt on the ground of procedural defects and a fresh proceedings is to be drawn up was ordered at the same time which was not done because the Disciplinary officer could not understand the procedural defects in his previous proceedings. Whatever may be the result of the proceedings, it is obvious that the findings of both the Enquirying Officer and the Disciplinary Authority was against him and their findings indicated serious offences inclusive of defalcation of Govt. money was committed by the incumbent. We, therefore, find there is no necessity to draw up a fresh proceedings against him and be may therefore, be asked to retire compulsorily.”
6. Following the recommendation of the Screening Committee, a notice was served on the petitioner on 21.10.75 under Rule 56(b) of the Fundamantal Rules and Subsidiary Rules stating that the service of the petitioner was no longer required in public interest and as such he would be deemed to have retired with effect from the date of expiry of a period of three months from the date of issue of the notice. This order was challenged by the petitioner before this Court in an application under Article 226 of the Constitution of India. This was in Civil Rule No. 54/76. The petition, however, came to be dismissed in limine on 3.2.76 This happened, according to the petitioner because the Emergency being in force he had no right to invoke Part III of the Constitution and had no material to convince the Court that the power was exercised mala fide.
7. After the Emergency was lifted, the cases of all the persons who had been compulsorily retired came to be reviewed by the Government. The case of the petitioner was considered by a Review Committee which held that the compulsory retirement of the petitioner was neither arbitrary nor mala fide. The Committee took this view, inter alia, because though the service record of the petitioner was fairly good there were charges of defalcation against him. The Committee further pointed out that the grave charges including defalcation of Government fund were in the mind of the Screening Committee as well as the appointing authority when it was decided to retire him compulsorily. The Committee observed that these charges and the enquiry which has been held to prove the charges formed the background for decision to compulsorily retire him. Getting no relief at the hands of the Government, the petitioner has knocked the doors of this Court.
8. The law relating to compulsory retirement has become well-settled by now. There are a number of decisions of the Apex-Court—not to speak of innumerable pronouncements by the different High Courts of the country. The Supreme Court had occasion to lay down parameteres of this power right from 1954 when the case of Shyam Lal v. 1. State Of U.P, AIR 1954 SC 369 came to be decided. A Constitution Bench of 5(Five) Hon'ble Judges delivered the judgment in Shyamlal. Another Constitution Bench examined the matter in Shivcharan v. State of Mysore, AIR 1965 SC 280. Still another Constitution Bench's decision is in State Of Utter Pradesh v. Madan Mohan Nagar, AIR 1967 SC 1260. This apart, Division Benches of ⅔ Hon'ble Judges have explained and laid down law in a catena of decisions— the latest of which is Brij Mohan Singh Chopra v. State Of Punjab., (1987) 2 SCC 188 : (1987) 2 SCC 188 : AIR 1987 SC 848.
9. On the basis of the various pronouncements of the highest Court of the land, the following legal propositions emerge:
(1) The power to compulsorily retire is a facet of doctrine of pleasure. Shyam Lal v. 1. State Of U.P, AIR 1954 SC 359; Union of India v. Colonel J.N Sinha, (1970) 2 SCC 458 : (1970) 2 SCC 458 : AIR 1971 SC 40; and Union of India v. M.E Reddy, AIR 1960 SC 563.
(2) The object of compulsory retirement is to chop-off dead wood or to weed out inefficient, corrupt and dishonest Government employee. To put it differently, the object is to instill a spirit of dedication and dynamism in the working of the State service, Union of India v. Colonel J.N Sinha, (1970) 2 SCC 458 : (1970) 2 SCC 458 : AIR 1971 SC 40; Union of India v. M.E Reddy, (1980) 2 SCC 15 : (1980) 2 SCC 15 : AIR 1980 SC 563; and Brij Mohan v. State of Punjab, (1987) 2 SCC 188 : (1987) 2 SCC 188 : AIR 1987 SC 848.
(3) The guiding star in exercise of this public interest which is the safety valve to see that no arbitrariness or bad faith creeps in. Of course, if in the guise of public interest unlimited discretion is accepted the same would be the surest menace of public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. Public interest in this regard envisages retention of honest and efficient employees in service and dispensing the services of those who are inefficient, dead wood and corrupt. The interest of public demands retirement of those who with the passage of time prematurely cease to possess the standard of efficiency called for by the Government servants. Sivcharan v. State of Mysore, AIR 1965 SC 280; Union of India v. Colonel J.N Sinha, (1970) 2 SCC 458 : (1970) 2 SCC 458 : AIR 1971 SC 40; Tara Singh v. State of Rajasthan, (1975) 4 SCC 86 : (1975) 4 SCC 86 : AIR 1974 SC 1487; Baldev Raj Chadha v. Union of India, (1980) 4 SCC 321 : (1980) 4 SCC 321 : AIR 1981 SC 70; H.C Gargi v. State of Harayana, (1986) 4 SCC 158 : (1986) 4 SCC 158 : AIR 1981 SC 65 and Brij Mohan v. State of Punjab, (1987) 2 SCC 188 : (1987) 2 SCC 188 : AIR 1987 SC 948.
(4) Absence of recital that the power has been exercised in public interest would not be sufficient to set aside the same. M.R Singh v. Chief Commissioner, (1976) 4 SCC 709 : (1976) 4 SCC 709 : AIR 1976 SC 2581 and Union of India v. M.E Reddy, (1980) 2 SCC 15 : (1980) 2 SCC 15 : AIR 1980 SC 563.
5. (a) The right to compulsorily retire a Government servant holds the balance between the rights of individual Government servant and the interest of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest, Union of India v. Colonel J.N Sinha, (1970) 2 SCC 458 : (1970) 2 SCC 458 : AIR 1971 SC 40.
(b) An order of compulsory retirement on one hand causes-no prejudice to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other band gives a new animation and equanimity to the services. If the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to his country, for every good cause claims it martyr. Union of India v. M.E Reddy, (1980) 2 SCC 15 : (1980) 2 SCC 15 : AIR 1980 SC 563.
(6)(a) Compulsory retirement is not to be regarded as penal or punishment if the order on the face of it casts no stigma. The argument that in every case of compulsory retirement it is implied that the concerned person has outlived his utility and as such it stigmatises the person concerned has not been accepted in this regard. The mere fact that the power to compulsorily retire a Government servant can be exercised to weed out unsuitable employees would not mean that the order is in the nature of punishment. The order would not be regarged as punishment however unsavoury it may be. I.N Saxena v. State of M.P, AIR 1967 SC 1264 and State of U.P v. Chandra Mohan, (1977) 4 SCC 345 : (1977) 4 SCC 345 : AIR 1977 SC 2411
(b) If, however, the order on the face of it casts a stigma like saying that the person oohcerned has ‘outlived his utility’ the order of compulsory retirement would be regarded as punishment. State Of Utter Pradesh v. Madan Mohan Nagar, AIR 1967 SC 1260.
(c) But then if in internal communication some adverse remarks like “a bad lot incorrigible and no longer useful” are made the same would not render the order as bad in the eye of law. Resort cannot be had to Government files to discover any remark amounting to stigma. State of UP v. Shyamlal, (1971) 2 SCC 514 : (1971) 2 SCC 514 : AIR 1971 SC 2151.
(7) Compulsory retirement is not a punishment as it does not cause any loss of benefit already earned. The loss of prospect of earning something more or of enhancement in pension is not relevant in this regard, because that is uncertain inasmuch as the officer may die or may become otherwise incapacitated. Shyamlal v. State of UP, AIR 1954 SC 363 and State of UP v. Shyamlal, (1971) 2 SCC 514 : (1971) 2 SCC 514 : AIR 1971 SC 2151.
(8) Compulsory retirement involves no civil consequences in asmuch as the accrued rights regarding pension etc. are not affected. This apart, it cannot be said that if the retiring age of all or a section of Government servants is fixed at, say, 50 years, the same would involve civil consequence inasmuch as under the existing system there is no uniform retirement age for all Government servants. The retirement age is fixed not merely on the basis of the interest of the Gavernment servant, but also depending upon the requirement of the society. Shyam Lal v. 1. State Of U.P, AIR 1956 SC 369 and Union of India v. Colonel J.N Sinha, (1970) 2 SCC 458 : (1970) 2 SCC 458 : AIR 1971 SC 40.
(9) Compulsory retirement is different from removal or dismissal inasmuch as (1) removal or dismissal is founded on misconduct whereas in compulsory retirement imputation or charge is not in terms made a condition for the exercise of powers and (2) dismissal or removal involves loss of benefit already earned whereas it is not so in compulsory retirement. Shyamlal v. State of UP, AIR 1956 SC 369; State Of Utter Pradesh v. Madan Mohan Nagar Nagar, AIR 1967 SC 1264; and State of UP v. Chandra Mohan Nigam, (1977) 4 SCC 345 : (1977) 4 SCC 345 : AIR 1977 SC 2411.
(10) A preliminary enquiry may be held before ordering compulsory retirement. Even if the compulsory retirement is ordered after persuing the findings arrived at in the preliminary enquiry the order would not ipso facto be penal in nature. Shyamlal v. State of UP, AIR 1954 SC 369.
(11) Principles of natural justice have no application in the case of compulsory retirement. Union of India v. Colonel J.N Sinha, (1970) 2 SCC 458 : (1970) 2 SCC 458 : AIR 1971 SC 40 and Union of India v. R.M Reddy, (1980) 2 SCC 15 : (1980) 2 SCC 15 : AIR 1980 SC 663.
(12) Power of compulsory retirement may be used when the authority exercising the power cannot substantiate the misconduct which may be real cause for taking the action. This is so because an imputation or charge is not in terms made a condition for the exercise of the power. Shyam Lal v. 1. State Of U.P, AIR 1954 SC 369, and Union of India v. M.E Reddy, (1980) 2 SCC 15 : (1980) 2 SCC 15 : AIR 1980 SC 563.
(13) This power may be exercised in a case where the general r???putation of an officer may be bad though it may 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 very close quarters would be in a position to know the nature and character not only of his performance but also the reputation that he enjoys. This apart a single entry in the character roll relating to integrity being doubtful would be sufficient to compulsorily retire the concerned person. State of UP v. Chandra Mohan Nigam, (1977) 4 SCC 345 : (1977) 4 SCC 345 : AIR 1977 SC 2411; Union of India v. M.E Reddy, (1980) 2 SCC 15 : (1980) 2 SCC 15 : AIR 1980 SC 563; and Brijmahan Singh v. State of Punjab, (1987) 2 SCC 188 : (1987) 2 SCC 188 : AIR 1987 SC 948.
(14) For the purpose at hand recent entries, say, of five years immediately preceding the compulsory retirement have to be looked into. Old and stale entries particularly relating to the period before the person concerned had been allowed to cross-efficiency bar have to be ignored. Further, if recent entries were to show that the officer was categorised as ‘good’ or ‘very good’ order of compulsory retirement cannot be passed. Baldev Raj Chadha v. Union af India, (1980) 4 SCC 321 : (1980) 4 SCC 321 : AIR 1981 SC 70 and Brij Mohan Singh Chopra v. State Of Punjab., (1987) 2 SCC 188 : (1987) 2 SCC 188 : AIR 1987 SC 948.
(15) An order of compulsory retirement cannot be issued even if the officer is classified as ‘avarage’ and ‘below average’ S.M Gargi v. State of Haryana, (1986) 4 SCC 505 : (1986) 4 SCC 505 : AIR 1987 SC 66.
(16) When challenge is made to the order of compulsory retirement and its validity depends on its being supported by public interest, the State must disclose the materials by relying on which the order was passed. Baldev Raj Chadha v. Union of India, (1980) 4 SCC 321 : (1980) 4 SCC 321 : AIR 1980 SC 70
(17) When the order of compulsory retirement is challenged, the Court has to see whether the order could be sustained on the ground of public interest by a reasonable man reasonably instructed in law. Though the Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations. Baldev Raj Chadha v. Union of India, (1980) 4 SCC 321 : (1980) 4 SCC 321 : AIR 1981 SC 70.
(18) In determining whether the impugned order is in public interest, the Court cannot invoke the principles which are applied in a case of preventive detention and because of this an order of compulsory retirement cannot be set aside if one of the grounds relied upon is found to be non-existent. State of U.P v. Chandra Mohan Nigam, (1977) 4 SCC 345 : (1977) 4 SCC 345 : AIR 1977 SC 2411. But if the sole ground basing on which the order is passed be non-existent, the order cannot be sustained. S.R Venkataraman v. Union of India, (1979) 2 SCC 491 : (1979) 2 SCC 491 : AIR 1979 SC 47.
(19) The service record by relying on which an order of compulsory retirement is passed cannot be regarded as a privileged document. State of U.P v. Chandra Mahan Nigam, (1977) 1 SCC 34 : (1977) 1 SCC 34 : AIR 1977 SC 24.
(20) An order of compulsory retirement can be challen ged on the ground that it is (a) arbitrary, (b) actuated by mala fides, or (c) based on collateral grounds. Union of India v. Colonel J.N Sinha, (1970) 2 SCC 458 : (1970) 2 SCC 458 : AIR 1971 SC 40; State of U.P v. Chandra Mohan Nigam, (1977) 4 SCC 345 : (1977) 4 SCC 345 : AIR 1977 SC 2411; and Baldev Raj Chadha v. Union of India, (1980) 4 SCC 321 : (1980) 4 SCC 321 : AIR 1981 SC 70.
10. Applying the above legal principles to the facts of the present case it may be stated without hesitation that the petitioner cannot be regarded to be a dead wood nor can it be said that he was inefficient or dishonest. Had it been that in the enquiry he was found guilty of the charge of misappropriation, the position might have been different, but then in the enquiry the petitioner was exonerated of the first four charges framed against him. The only charge which was found established against the petitioner was keeping the higher authority in d???rk with ulteri???r m???ti???e ab???ut unauthorised expenditure of Rs. 4,446.39. From this single lapse it cannot be held that the petitioner had outlived his utility as a Government servant. On the basis of the sole charge established it would foe difficult for any reasonable person reasonably instructed in law to come to the conclusion that public interest justified forced retirement. We are conscious of the fact that we cannot substitute our views in the matter but then the position being according to us, that no rational man could have come to the conclusion, solely relying on the fact of keeping the highe??? authorities in dark about the expenditure of Rs. 4,446.39, that the petitioner should be compulsorily retired, we are constrained to upset the order. This apart, the proceedings of the Screening Committee as well as the Review Committee show that it had relied on an important non-existent fact of defalcation of Government money. This has also introduced infirmity in the order of compulsory retirement. Further it deserves to be noted that the petitioner was initially punished with stoppage of three increments for the single lapse found to be established against him and afterwards he came to be compulsorily retired which has definitely affected the petitioner more.
11. Because of all the above, we are not in a position to sustain the impugned order, the same is, therefore set aside. The petition stands allowed.
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