Full Judgment Text
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CASE NO.:
Appeal (civil) 5111 of 2002
PETITIONER:
JUGAL CHANDRA SAIKIA
RESPONDENT:
STATE OF ASSAM AND ANR.
DATE OF JUDGMENT: 04/03/2003
BENCH:
SHIVARAJ V. PATIL & ARIJIT PASAYAT
JUDGMENT:
JUDGMENT
2003(2) SCR 615
The following Order of the Court was delivered : The appellant was
compulsorily retired from service by the order dated 11.4.1994. He assailed
the said order of his compulsory retirement by filing a writ petition. The
learned Single Judge rejecting the contentions urged on behalf of the
appellant upheld the same. The appellant pursued the matter further by
filing a writ appeal before a Division Bench of the same High Court. The
Division Bench of the High Court after considering the rival contentions
urged on behalf of the parties and keeping in view the principles stated in
the case of Baikunth Nath Das and Anr. v. Chief District Medical Officer.
Baripada and Anr. [1992] 2 SCC 299, dismissed the writ appeal affirming the
order passed by the learned Single Judge. Hence the appellant is before us
in this appeal questioning the validity and correctness of the impugned
order passed by the Division Bench of the High Court.
Learned counsel for the appelllant submitted that although the two
contentions, namely the order of compulsory retirement was punitive and
stigmatic and that the said order was arbitrary and unreasonable, were
urged before the Division Bench of the High Court, he does not press the
first contention but he emphatically argued that the order of compulsory
retirement is unsustainable, because the said order was based only on the
one man Commitee report of K.S. Rao, of which the appellant was not at all
made aware; if the authorities had considered the entire material touching
the service record of the appellant, reasonable view would have been
different. In support of his submissions he cited few decisions.
In opposition, the learned counsel for the respondents made submissions
supporting the impugned judgment. In particular, the learned counsel drew
our attention to para 9 of the impugned judgment to contend that the entire
service record of the appellant was perused by the competent authority as
well as by the High Court. According to the learned counsel, no fault can
be found with the imougned judgment.
The order of compulsory retirmement was passed on the basis of the
recommendation of the Screening Committee. The Screening Committee
consisted of the Chief Secretary of the State Secretary, (Judicial
Department) and Secretary of the Animal Husbandry and Veterinary
Department. The said Committee in its report has stated thus:
"The Committee perused the records made available by the department in
respect of Dr. Jugal Chandra Saikia and has reasons to viewed that Dr.
Jugal Chandra Saikia has indulged in serious malpractices in undertaking
fraudulent transactions constituting the LoC scandal of the Animal
Husbandry and Veterinary Department and was indicated in the report of the
K..S. Rao Committee constituted to enquire into the said LoC scandal. The
Committee is also convinced that Dr. Jugal Chandra Saikia has substantially
contributed in bringing disrepute to the Government with his fraudulent
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activities and doubtful intergity.
The Committee, therefore, is of the opinion that Dr. Jugal Chandra Saikia
has both outlived his utility and is of doubtful integrity and his
continuance in Government service any further would be deterimental to
public interest."
It is evident from the report extracted above that the Committee on perusal
of the records made available to it by the Department in respect of the
appellant and on their subjective satisfaciton found that the appellant
indulged in serious malpractices in undertaking fraudulent transactions
constituting the LoC scandal of the Animal Husbandry department as was
indicated in the report of K.S. Rao Committee constituted to enquire into
the said LoC scandal. It is further stated in the report that the Committee
was also convinced that the appellant had substantially contributed in
bringing disrepute to the Government with his fraudulent activities and
doubtful integrity. The Committee concluded that the appellant had both
outlived his utility and was of doubtful intergrity and his continuance in
Government service any further would be detrimental to public interest.
Looking to this report it becomes difficult for us to agree with the
learned counsel for the appellant that the Screening Committee acted only
on the basis of the report of Rao Committee. An opinion was formed looking
to the entire records. The High Court found that on the basis of the
records an opinion was formed to retire the appellant compulsorily from
service. Paragraph 9 of the impugned judgment reads thus:
"The second submission of Mr. Misra, learned counsel for the appellant has
to be understood in the context of the second principle laid down by the
Apex Court in the case of Baikunth Nath Das (supra) that the power of
compulsorily retire a Government servant is based on the subjective
satisfaction of the Government. While such satisfacion has to be based on
an overall consideration of the service record as held by the Apex Court,
in our considered view, the service record of the Government servant alone
is not the only material for arriving at the required satisfaction. The
service record of the concerned Government servant may provide reasonable
material for arriving at the required satisfaction. But in a given case,
there may be other materials on which such satisfaciton can be founded. In
the instant case, such satisfaciton appears to have founded on the basis of
the report of the Rao Committee which indicated the appellant and on the
basis of the indictment of the Screening Committee came to the conclusion
that the appellant his outlived has utility and is of doubtful intergaity
and his further retention in public service would not be in the public
interest. The said materials on which the satisfaction has been reached
cannot be said to be irrelevant, extraneous or unreasonable. In that view
of the matter, we are unable to accept Mr. Misra’s arguments that the
record of service is the only material on which the satisfaction of the
authority can be reached. The said conclusion does not follow from the
decisions of the Apex Court referred to by Mr. Misra as mentioned in the
earlier part of the judgment. The second contention of Mr. Misra,
therefore, fails."
It appears from the impugned judgment that several persons who were said to
have been involved in the LoC scandal were compulsorily retired from
service. A mention is made to a Division Bench judgment of the same High
Court in the case of Dwipen Konwar v. State of Assam, (1998) 1 G.L.T. 478
wherein the compulsory retirement of petitioner therein was upheld. It
cannot be disputed that the passing of an order of compulsory retirement
depends on subjective satisfaction of the competent authority, of course on
objective consideration. Unless it is shown that the order of compulsory
retirement was passed arbitrarily and without application of mind or that
such formation of opinion to retire compulsorily was based on no evidence
or that the order of compulsory retirement was totally perverse, the Court
cannot interefere. The Divison Bench of the High Court, in our opinion, was
right in upholding the order of compulsory retirement in view of the law
laid down by this Court in the case of Baikunth Nath Das (supra),
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particularly the principles indicated in paragraph 34 of the said judgment
which reads :
"34. Following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no
stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion
that it is in the public interest to retire a government servent
compulsorily. The order is passed on the subjective satisfaction of the
government.
(iii) Principles of natural justice have 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 sense that no reasonable
person would form the requisite opinion on the given matertial; in short,
if it is found to be a perverse order.
(iv)The government (or the Review Committee, as the case may be) shall have
to consider the entire record of service before 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 is promoted to a higher post notwithstatnding 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 consideraion. That circumstance by itself
cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above.
This aspect has been discussed in paras 30 to 32 above."
Learned counsel for the appellant relied on the judgment of this Court in
the State of Gujarat and Anr. v. Suryakant Chunni Lal Shah, [1999] 1 SCC
529. That was a case where there was no material before the Reviewing
Committee inasmuch as there were no adverse remarks in the character roll
entry ; the integrity was not doubtful at any time, the character roll
entries subsequent to the respondent’s promotion to the post of Assistant
Food Controller (Class II) was not available. In those circumstances, the
Court took the view that the order of compulsory retirement was bad.
Further, in that case the Reviewing Committee had not recommended for
compulsory retirement of the officer.
The case of MS. Bindra v. Union of India and Ors., [1998] 7 SCC 310 also
does not help the apppellant again, if we look to what is stated in
paragaraphs 19 and 20 of the same judgment. That was a case where on facts
it was found that there was utter dearth of evidence for the Screening
Committee to conclude that the appellant had doubtful integrity and that
such a conclusion did not stand judicial scrutiny even within the limited
permissible scope. Further, that was a case where the officer had
established unblemished reputation and earned encomiums from all concerned
till then and his integrity was proclaimed doubtful merely on the strength
of statements of persons prosecuted by such officers.
The Last case relied on by the learned counsel for the appellant is S.
Ramachandra Raju v. State of Orissa, [1994] Suppl. 3 SCC 424. That again is
a case where the officer was compulsorily retired relying on the adverse
entry for one year, i.e. for 1987-88, made by the Principal against whom
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mala fide was alleged but not denied; all other relevant records were
ignored. So the formation of opinon in those circumstances based on adverse
entry for one year 1987-1988, was held not proper.
In the present case no mala fides are attributed. The Screening Committee
consisting of high offficials had perused the records including the report
of the Rao Committee and recommended for compulsory retirement. Thereafter,
on that recommendation the order of compulsory retirement was passed. The
learned Single Judge as well as the Division Bench of the High Court did
not find any good ground to interfere with the order of compulsory
retirement. This being the position we do not find any merit in this
appeal. Consequently it stands dismissed but with no order as to costs.