Full Judgment Text
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PETITIONER:
BAIDYANATH MAHAPATRA
Vs.
RESPONDENT:
STATE OF ORISSA & ANR.
DATE OF JUDGMENT10/08/1989
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
KANIA, M.H.
CITATION:
1989 AIR 2218 1989 SCR (3) 803
1989 SCC (4) 664 JT 1989 (3) 360
1989 SCALE (2)271
CITATOR INFO :
* 1992 SC1020 (1,23,25,29)
ACT:
Orissa Service Code: Rule 71(a)--Compulsory retirement-
Adverse entries in service record--Of no significance when
government servant is promoted: belated communication of
adverse entries defeat their object: it is not permissible
to consider adverse entries representation against which is
pending.
Natural Justice--Members of a Tribunal not to sit in
judgment on their own decisions taken administratively.
HEADNOTE:
The appellant had joined service in the Orissa Govern-
ment as an Assistant Engineer in 1955, and in 1983 he was
working on the post of Superintending Engineer. Since he had
completed 50 years of age, a Review Committee considered his
service record for determining his suitability for retention
in service in accordance with the first proviso to Rule
71(a) of the Orissa Service Code. On the recommendation of
the Review Committee the State Government by its order dated
10.11.1983 pre-maturely retired the appellant from service.
The appellant filed a civil suit challenging the validity of
his pre-mature retirement. The suit was transferred to the
Administrative Tribunal. The Tribunal held that the recom-
mendation of the Review Committee was bona fide and did not
suffer from any legal infirmity.
Before this Court, it was contended that the recommenda-
tion of the Review Committee was vitiated as it was founded
on irrelevant and inadmissible material. It was urged that
the Review Committee had considered a number of adverse
remarks contained in the appellant’s service record for the
remote past years, and had also considered adverse entries
relating to recent years although those adverse entries had
not become final.
Allowing the appeal and setting aside the order of
premature retirement of the appellant, this Court,
HELD: (1) The purpose of the Rule conferring power on
the Government to retire Government servants prematurely is
to energise
804
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its machinery by ’chopping of the dead-wood’. [807C]
Union of India v. J.N. Sinha, [1971] 1 SCR 791.
(2) When a Government servant is promoted to a higher
post on the basis of merit and selection prior adverse
entries if any contained in his service record lose their
significance and those remain on record as part of past
history. It would, therefore, be unjust to curtail the
service career of Government servant on the basis of those
entries in the absence of any significant fail in his per-
formance after his promotion. [807F]
(3) If the adverse remarks awarded to a Government
servant are communicated to him after several years, the
object of communicating entries is defeated. It is, there-
fore, imperative that the adverse entries awarded to a
Government servant must he communicated to him within a
reasonable period to afford him opportunity to improve his
work and conduct and also to make representation in the
event of the entry being unjustified. In the instant case,
belated communication of the entries resulted into denial of
reasonable opportunity to the appellant to improve his
performance. [808A-B]
(4) The appellant’s representation against the adverse
entries relating to a number of years was rejected on the
ground that the representation was barred by time. Since the
communication of the adverse entries was itself highly
belated, the representation against those adverse remarks
should have been considered on merits and the same could not
be rejected on the alleged ground of delay as the Government
itself was guilty of inordinate delay in communicating the
adverse remarks to the appellant. [808D]
(5) The appellant had a right to make representation
against the adverse entries within six months period. There-
fore, the adverse entries awarded to the appellant in the
years 1981-82 and 1982-83 could not be taken into account
either by the Review Committee or by the State Government in
forming the requisite opinion contemplated by Rule 71(1)(a)
of the Orissa Service Code, before the expiry of the period
of six months. It is settled view that it is not permissible
to prematurely retire a Government servant on the basis of
adverse entries, representations against which are not
considered and disposed of. [809C-D, 808H-809A]
Brij Mohan Chopra v. State of Punjab, [1987] 2 SCR 583.
(6) The Members of the Tribunal must follow rules of natural
805
justice in administering justice like judges. They should
not sit in judgment on their own decisions. In the instant
case Shri Gian Chand, who had administratively taken a
decision as Chief Secretary against the Appellant, consid-
ered the matter judiciary as the Chairman of the Administra-
tive Tribunal, thereby he acted as a Judge of his own cause.
While it is true that there is no allegation of personal
bias against Shri Gian Chand, he may have acted bona fide,
nevertheless, the principles of natural justice, fair play,
and judicial discipline required that he should have ab-
stained from hearing the appellant’s case. [810B, 809F-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3050 of
1989.
From the Judgment and Order dated 21.12.87 of the Orissa
Administrative Tribunal in T.A. No. 161 of 1987..
P.P. Rao and C.S.S. Rao for the Appellant.
P.N. Misra and A.K. Panda for the Respondents.
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The Judgment of the Court was delivered by
SINGH, J. Leave granted.
This appeal is directed against the judgment of the
Orissa Administrative Tribunal, Bhubaneswar dated 21.12.
1987 dismissing the appellant’s suit challenging his pre-
mature retirement from service.
The appellant, a qualified Electrical Engineer with
training in West Germany, joined service of Orissa Govern-
ment as an Assistant Engineer (Electrical) in 1955. In 1961
he was promoted to the rank of Executive Engineer (Electri-
cal) and deputed to the Orissa State Electricity Board. In
March, 1976 he was promoted to the post of Superintending
Engineer (Electrical) on the basis of merit. In 1979 while
working on the post of Superintending Engineer (Electrical)
he was allowed to cross the Efficiency Bar with effect from
1.1.1979. He also officiated on the post of Chief Engineer
(Electrical) in Orissa State Electricity Board. Since he had
completed 50 years of age a Review Committee constituted by
the Government of Orissa considered his service record in
October, 1983 for determining his suitability for retention
in service in accordance with the first proviso to Rule
71(a) of the Orissa Service Code. On the recommendation of
the
806
Review Committee the State Government by its order dated
10.11.1983 pre-maturely retired the appellant from service.
He filed a civil suit before the Subordinate Judge, Bhuba-
neswar challenging the validity of his pre-mature retirement
on a number of grounds. On the Constitution of the Orissa
Administrative Tribunal the suit was transferred to the
Administrative Tribunal, Bhubaneswar, under Section 29 of
the Administrative Tribunals Act. The Tribunal by its order
dated 21.12.1987 dismissed the suit and upheld the validity
of appellant’s pre-mature retirement. Hence this appeal.
The Tribunal held that the Review Committee on an as-
sessment of the overall performance of the appellant’s
conduct had bona fide made recommendations to the State
Government that the appellant’s retention in service was not
in public interest, and in pursuance thereof the State
Government retired the appellant pre-maturely. The Tribunal
further held that the order of pre-mature retirement does
not suffer from any legal infirmity. Learned counsel for the
appellant urged that the Tribunal committed serious error in
upholding the order of pre-mature retirement as the recom-
mendation of the Review Committee was vitiated as it was
rounded on irrelevant and inadmissible material. In this
connection, he urged that the Review Committee had consid-
ered a number of adverse remarks contained in the appel-
lant’s service record for the remote past years which had no
relevance and it had further considered adverse entries
relating to the recent years although those adverse entries
had not become final as the representations against those
adverse entries had not been considered of by the State
Government. He urged that while considering overall perform-
ance of the appellant the Review Committee was influenced by
the entries of remote past, which had lost their signifi-
cance as inspite of those entries the appellant had been
promoted to higher post on merit and he had also been per-
mitted to cross Efficiency Bar. Before we consider these
submissions it would be pertinent to refer of the recommen-
dations of the Review Committee which are as under:
"From the year 1969-70 to 1982-83, Shri Bai-
dyanath Mohapatra has got adverse remarks for
the years 1969-70, 1970-71, 1972-73, 1975-76,
1976-77, 1981-82 and 1982-83. Although he was
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an intelligent officer, he did not apply his
mind and did not bestow adequate zeal in his
work. He did neither assume responsibility nor
did he work hard for which the Chief Engineer
had to deal with his Executive Engineers and
Assistant Engineers directly. He was found to
be too cursory in dealing with the problems
and adept in
807
putting the responsibilities for deficiencies
on others. His performance during most of the
years was found to be of average standard. The
Committee, considering his overall perform-
ance, was of the view that his continuance in
service is not desirable in public interest
and that he be retired prematurely. This
officer would have retired on superannuation
on 30.9.1989."
No exception can be taken to the Government’s opinion in
retiring the appellant pre-maturely on the basis of the
aforesaid recommendation of the Review Committee as it
clearly indicated that the appellant’s retention in service
was not in public interest. The purpose of the Rule confer-
ring power on the Government to retire Government servants
pre-maturely is to energise its machinery by "chopping of
the dead-wood" as held by this Court in Union of India v.
J.N. Sinha, [1971] 1 SCR 791. The question which falls for
consideration is whether the Review Committee was justified
in making its recommendations on the basis of adverse en-
tries awarded to the appellant in remote past especially
when the appellant had been promoted to the post of Superin-
tending Engineer in 1976 and he had further been permitted
to cross Efficiency Bar in 1979. The adverse entries relat-
ing to the years 1969-70, 1970-71, 1972-73 and 1975-76, had
lost all significance, because inspite of those entries the
appellant was considered to be an intelligent and efficient
officer and in that view he was promoted to the post of
Superintending Engineer. If those entries did not reflect
deficiency in appellant’s work and conduct for the purpose
of promotion, it is difficult to comprehend as to how those
adverse entries could be pressed into service for retiring
him pre-maturely. When a Government servant is promoted to a
higher post on the basis of merit and selection, adverse
entries if any contained in his service record lose their
significance and those remain on record as part of past
history. It would be unjust to curtail the service career of
Government servant on the basis of those entries in the
absence of any significant fall in his performance after his
promotion.
The adverse entries for the years 1969-70, 1970-71,
1972-73 and 1975-76 were communicated in a lot to the appel-
lant in 1978, although under the instructions issued by the
State Government the adverse entries must be communicated by
December of each year. The purpose of communicating adverse
entries to the Government servant is to inform him regarding
his deficiency in work and conduct and to afford him an
opportunity to make, amend, and improvement in his work ,and
further if the entries are not justified the communication
808
affords him an opportunity to make representation. If the
adverse remarks-awarded to a Government servant are communi-
cated to him after several years, the object of communicat-
ing entries is defeated. It is therefore imperative that the
adverse entries awarded to a Government servant must be
communicated to him within a reasonable period to afford him
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opportunity to improve his work and conduct and also to make
representation in the event of the entry being unjustired.
In the instant case, adverse entries relating to a number of
years were communicated to the appellant in one 101 under a
letter dated 27.2.1978 contrary to the instructions issued
by the State Government as contained in Circular No. 29
dated 19.2.1953. Belated communication of the entries re-
sulted into denial of reasonable opportunity to the appel-
lant to improve his performance. Further since adverse
remarks for several years were communicated with inordinate
delay it was impossible for the appellant to make an effec-
tive representation against the same. The appellant’s repre-
sentation against the aforesaid entries was rejected on
12.3.1981 on the ground that the representation was barred
by time. Since the communication of the adverse entries was
itself highly belated the representation against those
adverse remarks should have been considered on merits and
the same could not be rejected on the alleged ground of
delay as the Government itself was guilty of inordinate
delay in communicating the adverse remarks to the appellant.
Adverse remarks relating to the years 1981-82 and 1982-
83 were taken into account by the Review Committee in formu-
lating its opinion against the appellant’s ,retention in
service. The appellant’s representation against those en-
tries had not been considered, yet the Review Committee
placed reliance on those entries. In fact, the adverse
remarks for the year 1981-82 were communicated to the appel-
lant under the letter dated 21.6.1983 which was received by
him on 5.7.1983, and as regards the adverse remarks for the
’year 1982-83 these were communicated to the appellant under
the letter dated 29.7.1983 which was received by him on
9.8.1983. He made representation to the Government against
the aforesaid adverse remarks on 1.11.1983 but before the
representation could be considered by the Government the
impugned order of pre-mature retirement was made on
10.11.1983. These facts make it amply clear that the appel-
lant’s representation against the aforesaid adverse remarks
for the years 1981-82 and 1982-83 was pending and the same
had not been considered or disposed of on the date the
impugned order was issued. It is settled view that it is not
permissible to pre-maturely retire a Government servant on
the basis of adverse entries, representations against
809
which are not considered and disposed of. See. Brij Mohan
Chopra v. State of Punjab, [1987] 2 SCR 583. When this
aspect was pressed before the Tribunal, it took a peculiar
view in holding that since the representation had not been
made before the date on which the Review Committee had
considered the appellant’s case, the Committee need not have
waited for the disposal of the appellant’s representation
and it was free to take into account the adverse remarks
awarded to the appellant in the years 1981-82 and 1982-83.
The appellant placed reliance on the decision of this Court
in Brij Mohan Chopra’s case but the Tribunal by some in-
volved logic avoided giving effect to the law laid down by
this Court. It is not disputed that in the State of Orissa a
Government servant has right to make representation within
six months from the date of communication of the adverse
remarks. The appellant had right to make representation
against the adverse entries within six months period, there-
fore, the adverse entries awarded to him in the years 1981-
82 and 1982-83 could not be taken into account either by the
Review Committee or by the State Government in forming the
requisite opinion as contemplated by Rule 71(1)(a) of the
Orissa Service Code, before the expiry of the period of six
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months. Since the period prescribed for making representa-
tion against the adverse remarks for the years 1981-82 and
1982-83 had not expired, the proper course for the Review
Committee should have been not to consider those entries or
in the alternative, the Review Committee should have waited
for the decision of the Government on the appellant’s repre-
sentation. The view taken by the Tribunal is not sustainable
in law.
There is a disturbing feature of this case which viti-
ates Tribunal’s order. Shri Gian Chand, Chairman of the
Tribunal, ex-Chief Secretary of the State of Orissa, was
member of the Review Committee which made recommendation
against the appellant for his pre-mature retirement, and in
pursuance thereof the State Government had issued the im-
pugned order. It appears that Sh. Gian Chand, had later been
appointed as Chairman of the Administrative Tribunal. Shri
Gian Chand, participated in the proceedings of the Tribunal,
and he is party to the decision of the Tribunal. These facts
show that Mr. Gian Chand, who had administratively taken a
decision against the appellant, considered the matter judi-
cially as a Chairman of the Tribunal, thereby he acted as a
Judge of his own cause. While it is true that there is no
allegation of personal bias against Sh. Gian Chand, he may
have acted bona fide, nonetheless, the principles of natural
justice, fair play, and judicial discipline required that he
should have abstained from hearing the appellant’s case.
While considering the appellant’s case the Tri-
810
bunal exercised judicial powers and it was required to act
judicially, as the jurisdiction of the Civil Court and High
Court have been excluded and vested in the Administrative
Tribunal. The Members of the Tribunal must follow rules of
natural justice in administering justice like Judges, they
should not sit in judgment on their own decisions. Sh. Gian
Chand was disqualified to hear the appellant’s case. The
order of the Tribunal is vitiated on this ground but as the
appellant had not raised any objection before the Tribunal
against the participation of Sh. Gian Chand, we do not
consider it necessary to grant relief to the appellant on
this ground.
For the aforesaid reasons we hold that the order of
pre-mature retirement is vitiated and the Tribunal committed
error in upholding the same. We accordingly allow the ap-
peal, set aside the order of the Tribunal dated 21.12.1987
and also the order of the State Government dated 10.11.
1983. The appellant is entitled to reinstatement with all
consequential benefits of service in addition to the costs.
R.S.S. Appeal allowed.
811