Full Judgment Text
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PETITIONER:
BAIKUNTHA NATH DAS AND ANR.
Vs.
RESPONDENT:
CHIEF DISTT. MEDICAL OFFICER, BARIPADA AND ANR.
DATE OF JUDGMENT19/02/1992
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
SHARMA, L.M. (J)
RAMASWAMI, V. (J) II
CITATION:
1992 AIR 1020 1992 SCR (1) 836
1992 SCC (2) 299 JT 1992 (2) 1
1992 SCALE (1)428
CITATOR INFO :
R 1992 SC1368 (3)
ACT:
Civil Services-C.C.R.-Adverse remarks-Communication and
noncommunication-Effect of-Action under Rule 56 (J) of the
Fundamental Rules (Rule 71 of Orissa Service Code) whether
to be delayed till the disposal of representation on adverse
remarks.
Civil Services-Orissa Service Code, Rule
71(Corresponding to rule 56. (J) of the Fundamental Rules)-
Compulsory retirement-Whether to be delayed till the
disposal of representation on adverse remarks.
Civil Services-Orissa Service Code-Rule 71-Compulsory
retirement-Principles of natural justice whether applicable-
Whether permissible on uncommunicated adverse remarks-
Courts’ interference-Scope of.
Constitution of India, 1950-Article 226-Court’s
jurisdiction to interfere with order of compulsory
retirement-Scope of-Principles of natural justice-
Applicability of-Compulsory retirement whether permissible
on uncommunicated adverse remarks.
HEADNOTE:
C.A.No.869 of 1987
On 15.3.1951, the appellant was appointed as a
Pharmacist, which was then designated as compounder. On
13.2.1976 he was retired compulsorily by the Government
under the first proviso to Sub-rule of Rule 71 of the Orissa
Service Code.
The appellant challenged the order by way of a writ
petition in the High Court contending that the order was the
result of ill-will and malice the Chief District Medical
Officer bore towards him; that his entire service was spot-
less and that at no time were any adverse entries in his
confidential character rolls communicated to him.
The respondent- Government submitted that the decision
to retire
837
the petitioner compulsorily was taken by the Review
Committee and not by the Chief Medical Officer; that besides
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the remarks made in the confidential character rolls, other
material was also taken into consideration by the Review
Committee that it arrived at its decision bonafide and in
public interest which decision was accepted and approved by
the Government. The allegation of malafides was denied.
The High Court looked into the proceedings of the Review
Committee and the confidential character rolls of the
appellant and dismissed the writ petition on the reasoning,
that an order of compulsory retirement after putting in the
prescribed qualifying period of service did not amount to
punishment; that the order was passed by the state
Government and not by the Chief Medical Officer and that the
petitioner has failed to establish that remarks in the
confidential character rolls were not duly and properly
recorded. It held that the adverse remarks though not
communicated, can yet be relied upon. Accordingly it held
that the decision to retire was taken by the Review
Committee on proper material and there were no grounds to
interfere with its decision.
The present appeal by special leave was filed by the
government servant against the decision of the High Court on
the question, whether acting upon undisclosed material was a
ground for quashing the order of compulsory retirement C.A.
No. 870 of 1987 was also filed on similar facts.
It was contended by the appellant that since an order of
compulsory retirement had adverse effects upon the career
and prospects of the government servant, the order should be
passed in accordance with principles of natural justice;
that before passing the order, a notice to show cause
against the order proposed should be given to the government
servant; that the order of compulsory retirement was based
upon uncommunicated adverse remarks and that the appellant
was also not afforded an opportunity to make a
representation against the same; and that as per the new
concept of Article 14 adumbrated Maneka Gandhi case, AIR
1978 SC 579, any and every arbitrary action was open to
judicial scrutiny.
Dismissing the appeals, this Court,
HELD: 1.01. What is normally required to be
communicated is adverse remarks - not every remark, comment
or observation made in the confidential rolls. There may be
any number of remarks, observations and
838
comments, which do not constitute adverse remarks, but are
yet relevant for the purpose of F.R. 56(j) or a Rule
corresponding to it. [855B-C]
1.02. The adverse remarks ought to be communicated in
the normal course, as required by the Rules/ orders in that
behalf. Any representations made against them would and
should also be dealt with in the normal course, with
reasonable promptitude. [854D-E]
1.03. The action under F.R.56(j) (or the Rule
corresponding to it) need not await the disposal or final
disposal of such representation or representations, as the
case may be. In some cases, it may happen that some adverse
remarks of the recent years are not communicated or if
communicated, the representation received in that behalf are
pending consideration. On this account alone, the action
under F.R.56(j) need not be held back. [854E-F]
1.04. There is no reason to presume that the Review
Committee or the government, if it chooses to take into
consideration such uncommunicated remarks, would not be
conscious or cognizant of the fact that they are not
communicated to the government servant and that he was not
given an opportunity to explain or rebut the same.
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Similarly, if any representation made by the government
servant is there, it shall also be taken into consideration.
[854F-G]
1.05. Not only the Review Committee is generally
composed of high and responsible officers, the power is
vested in government alone and not in a minor official. It
is unlikely that adverse remarks over a number of years
remain uncommunicated and yet they are made the primary
basis of action. Such an unlikely situation, if indeed
present, may be indicative of malice in law. [854G-H]
2.01. An order of compulsory retirement is not a
punishment. It implies no stigma nor any suggestion of
misbehaviour. [855D]
2.02. The order has to be passed by the government 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 government.
[855D-E]
2.03. Principles of natural justice have no place in the
context of an order of compulsory retirement. This does not
mean that judicial scrutiny
839
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 material;
in short, if it is found to be a perverse order. [855E-F]
2.04. The remedy provided by Article 226 of the
Constitution is no less an important safeguard. Even with
its well-known constraints, the remedy is an effective check
against mala fide, perverse or arbitrary action. [855A]
2.05. 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. [856B]
2.06. The government (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 the 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 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. [855G-856A]
2.07. The nature of the function is not quasi-judicial
in nature and because the action has to be taken on the
subjective satisfaction of the Government, there is no room
for importing any facet of natural justice particularly
because an order of compulsory retirement is not a
punishment nor does it involve any stigma. [856E]
Union Of India v. M.E.Reddy, [1980] 1 SCR 736; Union of
India v. J.N.Sinha, [1971] 1 SCR 791, Applied.
Shyam Lal v. State of Uttar Pradesh, [1955] 1 SCR 26;
Shivacharana v. State of Mysore, AIR (1965) SC 280; State
of Orissa v. Dr. Binapani Devi, [1967] 2 SCR 625; A.K.
kraipak v. Union of India, AIR 1970 SC 150; R.L. Butail v.
Union of India, [1971] 2 SCR 791; Dr. N.V. Puttabhatta v.
State of Mysore, AIR 1972 SC 2185; Gian Singh Mann v. Punjab
and Haryana
840
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High Court, AIR 1980 SC 1894; O.N.G.C. v. Iskandar Ali, Brij
Bihari Lal Agarwal v. High Court Of Madhya Pradesh, [1981] 2
SCR 29; Baldev Raj Chaddha v. Union Of India, [1981] 1 SCR
430; J.D. Srivastava v. State of Madhya Pradesh, [1984] 2
SCR 466; Brij Mohan Singh Chopra v. State of Punjab, [1987]
2 SCC 1988; Gurdyal Singh Fiji v. State of Punjab, [1979] 3
SCR 518;m Amarkant Chaudhary v. State of Bihar, [1984] 2 SCR
299; Baidyanath Mahapatra v. State of Orissa, [1989] 4 SCC
664; Barium Chemicals v. Company Law Board, AIR (1967) SC
295; Vallukunnel v. Reserve Bank of India, AIR 1962 SC 1371;
Maneka Gandhi’s case, AIR 1978 SC 579, Referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 869 of 1987.
From the Judgment and Order dated 22.12.1981 of the
Orissa High Court in Original Judicature Case No. 412 of
1976.
WITH
CA No. 870 of 1987
R.K. Garg and A.K. Panda for the Appellants.
C.S. Srinivasa Rao for the Respondent.
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY,J. 1. These appeals raise the
question-whether it is permissible to the government to
order compulsory retirement of a government servant on the
basis of material which includes uncommunicated adverse
remarks. While the appellants (government servants,
compulsory retired) rely upon the decisions of this court in
Brij Mohan Singh Chopra, [1987] 2 S.C.C. 1988 and Baidyanath
Mahapatra, [1989] 4 S.C.C. 664, in support of their
contention that it is not permissible, the respondent-
government relies upon the decision in M.E. Reddy. [1980] 1
S.C.R. 736 to contend that it is permissible to the
government to take into consideration uncommunicated
adverse remarks also while taking a decision to retire a
government servant compulsorily.
2. The appellants in both the appeals have been
compulsorily retired by the government of Orissa in exercise
of the power conferred upon it by the first proviso to Rule
71 (a) of the Orissa Service Code. Since the relevant facts
in both the appeals are similar, it would be sufficient if
we set out the facts in Civil Appeal No. 869 of 1987.
841
3. The appellant, Sri Baikuntha Nath Das was appointed
as a Pharmacist (then designated as Compounder) by the Civil
Surgeon, Mayurbhanj on 15.3.1951. By an order dated
13.2.1976 the government of Orissa retired him compulsorily
under the first proviso to sub-rule of Rule 71 of the Orissa
Service Code. The order reads as follows:
‘‘In exercise of the powers conferred under the
first proviso to sub-rule (a) of rule 71 of Orissa
Service Code, the Government of Orissa is pleased
to order the retirement of Sri Baikunthanath Das,
Pharmacist now working under the Chief District
Medical Officer, Mayurbhanj on the expiry of three
months from the date of service of this order on
him.
By order of the Governor.’’
4. The petitioner challenged the same in the High Court
of Orissa by way of a writ petition, being O.J.C.No. 412
of 1976. His case was that the order was based on no
material and that it was the result of ill-will and malice
the Chief District Medical Officer bore towards him. The
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petitioner was transferred by the said officer from place to
place and was also placed under suspension at one stage. He
submitted that his entire service has been spot-less and
that at no time were any adverse entries in his
confidential character rolls communicated to him. In the
counter-affidavit filed on behalf of the government, it was
submitted that the decision to retire the petitioner
compulsorily was taken by the Review Committee and not by
the Chief Medical Officer. It was submitted that besides the
remarks made in the confidential character rolls, other
material was also taken into consideration by the Review
Committee and that it arrived at its decision bonafide and
in public interest which decision was accepted and approved
by the government. The allegation of malafides was denied.
5. The High Court looked into the proceedings of the
Review Committee and the confidential character rolls of the
petitioner and dismissed the writ petition on the following
reasoning: An order of compulsory retirement after putting
in the prescribed qualifying period of service does not
amount to punishment as has been repeatedly held by this
court. The order in question was passed by the State
Government and not by the Chief Medical Officer. It is true
that the confidential character roll of the petitioner
contained several remarks adverse to him which were, no
doubt, not communicated to him, but the decision of this
court in Union of India
842
v. M.E.Reddy, [1980] 1 S.C.R. 736, holds that uncommunicated
adverse remarks can also be relied upon while passing an
order of compulsory retirement. The said adverse remarks
have been made by successive Civil Surgeons and not by the
particular Chief District Medical Officer against whom the
petitioner has alleged malafides. It is unlikely that all
the Chief District Medical Officers were prejudiced against
the petitioner. In particular, the court observed, "the
materials placed before us do not justify a conclusion that
the remarks in the confidential character rolls had not duly
and properly been recorded." The decision to retire has been
taken by the Review Committee on proper material and there
are no grounds to interfere with its decision, it opined.
6. The adverse remarks made against the petitioner - in
the words of the High Court - are to the following effect:
"......most insincere, irregular in habits and
negligent and besides being a person of doubtful
integrity, he had been quarrelsome with his
colleagues and superior officers and had been
creating problems for the administration."
7. Rule 71 (a) alongwith the first proviso appended
thereto - which alone is relevant for our purpose - reads
thus:
"71. (a) Except as otherwise provided in the other
clauses of this rule the date of compulsory
retirement of a Government servant, except a
ministerial servant who was in Government
service on the 31st March, 1939 and Class IV
Government servant, is the date on which he or she
attains the age of 58 years subject to the
condition that a review shall be conducted in
respect of the Government servant in the 55th year
of age in order to determine whether he/she should
be allowed to remain in service upto the date of
the completion of the age of 58 years or retired on
completing the age of 55 years in the public
interest:
Provided that a Government servant may retire from
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service any time after completing thirty years
qualifying service or on attaining the age of fifty
years, by giving a notice in writing to the
appropriate authority at least three months before
the date on which he wishes to retire or by giving
the said notice to the
843
said authority before such shorter period as
Government may allow in any case. It shall be open
to the appropriate authority to withhold permission
to a Government servant who seeks to retire under
this rule, if he is under suspension or if
inquires against him are in progress. The
appropriate authority may also require any officer
to retire in public interest any time after he has
completed thirty years qualifying service or
attained the age of fifty years, by giving a notice
in writing to the Government servant at least three
months before the date on which he is required to
retire or by giving three months pay and allowances
in lieu of such notice. xx xx xx"
8. It is evident that the latter half of the proviso
which empowers the government to retire a government servant
in public interest after he completes 30 years of qualifying
service or after attaining the age of 50 years is in pari
materia with the Fundamental Rule 56(j).
9. The Government of Orissa had issued certain
instructions in this behalf. According to these
instructions, the Review Committee, if it is of the opinion
that a particular government servant should be retired
compulsorily, must make a proposal recording its full
reasons therefor. The administrative department controlling
the services to which the particular government servant
belongs, will then process the proposal and put it up to the
government for final orders.
10. In Shyam Lal v. State of Uttar Pradesh, [1955] 1
S.C.R. 26, a Constitution Bench of this court held that an
order of compulsory retirement is not a punishment nor is
there any stigma attached to it. It said:
"There is no such element of charge or imputation
in the case of compulsory retirement. The two
requirements for compulsory retirement are that the
officer has completed twenty five years’ service
and that it is in the public interest to dispense
with his further services. It is true that this
power of compulsory retirement may be used when the
authority exercising this power cannot substantiate
the misconduct which may be the real cause for
taking the action but what is important to note is
that the directions in the last sentence of Note 1
to Article 465-A make it abundantly clear that an
imputation or charge is not in terms made a
condition for the exercise of the power.
844
In other words, a compulsory retirement has no
stigma or implication of misbehaviour or
incapacity."
11. In Shivacharana v. State of Mysore, A.I.R. 1965 S.C.
280, another Constitution Bench reaffirmed the said
principle and held that "Whether or not the petitioner’s
retirement was in the public interest, is a matter for the
State Government to consider and as to the plea that the
order is arbitrary and illegal, it is impossible to hold on
the material placed by the petitioner before us that the
said order suffers from the vice of malafides."
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12. As far back as 1970, a Division Bench of this court
comprising J.C. Shah and K.S. Hegde, JJ. held in Union of
India v. J.N Sinha, [1971] 1 S.C.R. 791, that an order of
compulsory retirement made under F.R. 56 (j) does not
involve any civil consequences, that the employee retired
thereunder does not lose any of the rights acquired by him
before retirement and that the said rule is not intended for
taking any penal action against the government servant. It
was pointed out that the said rule embodies one of the
facets of the pleasure doctrine embodied in Article 310 of
the Constitution and that the rule holds the balance between
the rights of the individual Government servant and the
interest of the public. The rule is intended it was
explained, to enable the Government to energise its
machinery and to make it efficient by compulsory retiring
those who in its opinion should not be there in public
interest. It was also held that rules of natural justice are
not attracted in such a case. If the appropriate authority
forms the requisite opinion bonafide, it was held, its
opinion cannot be challenged before the courts though it is
open to an aggrieved party to contend that the requisite
opinion has not been formed or that it is based on
collateral grounds or that it is an arbitrary decision. It
is significant to notice that this decision was rendered
after the decisions of this court in State of Orissa v.
Dr.Binapani Devi, [1967] 2 S.C.R. 625 and A.K.Kraipak v.
Union of India, A.I.R. 1970 S.C. 150.Indeed, the said
decisions were relied upon to contend that even in such a
case the principles of natural justice required an
opportunity to be given to the government servant to show
cause against the proposed action. The contention, was not
accepted as stated above. The principles enunciated in the
decision have been accepted and followed in many a later
decision. There has never been a dissent - not until 1987.
13. In R.L. Butial v. Union of India, relied upon by
the appellant’s
845
counsel, the Constitution Bench considered a case where the
government servant was denied the promotion and later
retired compulsorily under F.R. 56(j) on the basis of
adverse entries in his confidential records. The appellant,
an electrical engineer, entered the service of Simla
Electricity Board in 1934. In 1940, he was transferred to
Central Electricity Commission - later designated as Central
Water and Power Commission (Power Wing). In 1955 he was
promoted to the post of Director wherein he was confirmed in
the year 1960. In his confidential reports relating to the
years 1964 and 1965, certain adverse remarks were made.
They were communicated to him. He made a representation
asking for specific instances on the basis of which the said
adverse remarks were made. These representations were
rejected. Meanwhile, a vacancy arose in the higher post. The
appellant was overlooked both in the year 1964 as well as in
1965 by the Departmental Promotion Committee and the
U.P.S.C. On August 15, 1967, on his completing 55 years of
age, he was compulsorily retired under F.R. 56(j). Thereupon
he filed three writ petitions in the High Court challenging
the said adverse entries as also the order of compulsory
retirement. The writ petitions were dismissed whereupon
the matters were brought to this court on the basis of a
certificate. The Constitution Bench enunciated the following
propositions:
1. The rules framed by the Central Water and Power
Commission on the subject of maintenance of confidential
reports show that a confidential report is intended to be a
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general assessment of work performed by the government
servant and that the said reports are maintained to serve as
a data of operative merit when question of promotion,
confirmation etc. arose. Ordinarily, they are not to contain
specific instances except where a specific instance has
led to a censure or a warning. In such situation alone, a
reasonable opportunity has to be afforded to the government
servant to present his case. No opportunity need be given
before the entries are made. Making of an adverse entry does
not amount to inflicting a penalty.
2. When the petitioner was overlooked for promotion his
representations against the adverse remarks were still
pending. But inasmuch as the said representations were
rejected later there was no occasion for reviewing the
decision not to promote the appellant. Withholding a
promotion is not a penalty under the Central Service Rules.
Hence, no enquiry was required to be held before deciding
not to promote the
846
appellant-more so, when the promotion was on the basis of
selection and not on the basis of seniority alone.
3. So far as the order of compulsory retirement was
concerned, it was based upon a consideration of his entire
service record including his confidential reports. The
adverse remarks in such reports, were communicated from time
to time and the representations made by the appellant were
rejected. It is only thereafter that the decision to retire
him compulsorily was taken and, therefore, there was no
ground to interfere with the said order.
14. It is evident that in this case, the question
arising for our consideration viz, whether uncommunicated
adverse remarks can be taken into consideration alongwith
other material for compulsorily retiring a government
servant did not arise for consideration. That question arose
directly in Union of India v. M.E.Reddy.
15. The respondent, M.E. Reddy belonged to Indian Police
Services. He was retired compulsorily under Rule 16 (3) of
All India Service (Death-cum-Retirement Rules) 1958 -
corresponding to F.R. 56 (j). The contention of the
respondent was that the order was passed on non-existing
material inasmuch as at no time were any adverse remarks
communicated to him. His contention was that had there been
any adverse entries they ought to have been communicated to
him under the rules. The said contention was dealt with in
the following words:-
"......This argument, in our opinion, appears to
be based on a serious misconception. In the first
place, under the various rules on the subject it is
not every adverse entry or remarks that has to be
communicated to the officer concerned. The
superior officer may make certain remarks
while assessing the work and conduct of subordinate
officer based on his personal supervision or
contract. Some of these remarks may be purely
innocuous, or may be connected with general
reputation of honesty or integrity that a
particular officer enjoys. It will indeed 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 close quarters
are in a position to know the nature and character
not only of his performance but also of the
847
reputation that he enjoys".
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16. The Learned Judges referred to the decisions in
R.L.Butail,J.N.Sinha and several other decisions of this
court and held that the confidential reports, even though
not communicated to the officer concerned, can certainly be
considered by the appointing authority while passing the
order of compulsory retirement. in this connection, they
relied upon the principle in J.N. Sinha that principles of
natural justices are not attracted in the case of compulsory
retirement since it is neither a punishment nor does it
involve any civil consequences.
17. the principle of the above decision was followed in Dr.
N.V.Puttabhatta v.State of Mysore, A.I.R. 1972 S.C. 2185, a
decision rendered by A.N.Grover and G.K.Mitter , J.J.
Indeed, the contention of the appellant in this case was
that since an order of compulsory retirement has adverse
effects upon the career and prospects of the government
servant, the order must be passed in accordance with
principles of natural justice. It was contended that before
passing the order, a notice to show cause against the order
proposed must be given to the government servant . Reliance
was placed upon the decisions in Binapani Devi and Kraipak.
This contention was negatived following the decision in
J.N.Sinha. It was also pointed out, applying the principles
of Shivacharana that an order of compulsory retirement is
not a punishment nor does it involve any stigma or
implication or misbehaviour. Another contention urged in
this case was that the order of compulsory retirement was
based upon uncommunicated adverse remarks and that the
appellant was also not afforded an opportunity to make a
representation against the same. At the relevant time, no
appeal lay against the orders passed upon the
representation. Dealing with the said contention, the court
observed:
"as the confidential reports rules stood at the
relevant time, the appellant could not have
appealed against the adverse remarks and if the
opinion of the government to retire him
compulsorily was based primarily on the said
report, he could only challange the order if he was
in a position to show that the remarks were
arbitrary and malafide."
18. Yet another contention which is relevant to the present
case is this : the retirement of the appellant therein was
ordered under Rule 235 of Mysore Civil Services Rules. The
language of the said rule corresponded to
848
F.R.56(j) but it did not contain the word "absolute" as is
found in F.R.56(j). An argument was sought to be built up
on the said difference in language but the same was rejected
holding that even in the absence of the word "absolute" the
position remains the same. We are refering to the said
aspect in as much as the proviso to Rule 71 (a) of the
Orissa Service Code, concerned in the appeals before us,
also does not contain the word "absolute".
19. In (A.I.R.1980 S.C.1894) Gian Singh Mann v. Punjab and
Haryana High Court, a Bench consisting of Krishna Iyer and
Pathak, JJ. reiterated the principle that an order of
compulsory retirement does not amount to punishment and that
no stigma or implication of misbehaviour is intended or
attached to such an order.
20. In O.N.G.C v. Iskandar Ali, a probationer was terminated
on the basis of adverse remarks made in his assessment roll.
A Bench comprising three learned Judges (Fazal Ali, A.C.
Gupta and Kailasam, JJ.) held that the order of termination
in that case was an order of termination simpliciter without
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involving any stigma or any civil consequences. Since the
respondent was a probationer, he had no right to the post.
The remarks in his assessment roll disclosed that the
respondent was not found suitable for being retained in
service and even though some sort of enquiry was commenced,
it was not proceeded with. The appointing authority
considered it expedient to terminate the service of the
respondent in the circumstances and such an order was beyond
challenge on the ground of violation of Article 311.
21. This court has taken the view in certain cases that
while taking a decision to retire a government servant under
Rule 56(j), more importance should be attached to the
confidential records of the later years and that much
importance should not be attached to the record relating to
earlier years or to the early years of service. In Brij
Bihari Lal Agarwal v. High Court of Madhya Pradesh, [1981] 2
S.C.R 29, upon which strong reliance is placed by the
appellant’s counsel - a Bench comprising Pathak and Chinappa
Reddy,JJ. observed thus:
".......What we would like to add is that when
considering the question of compulsory retirement,
while it is not doubt desirable to make an overall
assessment of the Government servant’s record,
more than ordinary value should be attached to the
confidential reports pertaining to the years
immediately
849
preceding such consideration. It is possible that a
Government servant may possess a somewhat erratic
record in the early years of service, but with the
passage of time he may have so greatly improved
that it would be of advantage to continue him in
service up to the statutory age of superannuation.
Whatever value the confidential reports of earlier
years may possess, those pertaining to the later
years are not only of direct relevance but also of
utmost importance."
22. We may mention that the order of compulsory
retirement in the above case is dated 28th September, 1979.
The High Court took into account the confidential reports
relating to the period prior to 1966 which were also not
communicated to the concerned officer. However, the decision
is based not upon the non-communication of adverse remarks
but on the ground that they were too far in the past. It was
observed that reliance on such record has the effect of
denying an opportunity of improvement to the officer
concerned. The decision in Baldev Raj Chaddha v. Union of
India, [1981] 1 S.C.R. 430, is to the same effect. In J.D.
Srivastava v. State of Madhya Pradesh, [1984] 2 S.C.R. 466,
it was held by a Bench of three learned Judges that adverse
reports prior to the promotion of the officer cannot
reasonably form a basis for forming an opinion to retire
him. The reports relied upon for retiring the appellant were
more than 20 years old and there was no other material upon
which the said decision could be based. It was held that
reliance on such stale entries cannot be placed for retiring
a person compulsorily, particularly when the officer
concerned was promoted subsequent to such entries.
23. We now come to the decision in Brij Mohan Singh
Chopra v. State of Punjab, relied upon by the learned
counsel for the petitioner. In this case, there were no
adverse entries in the confidential records of the appellant
for a period of five years prior to the impugned order.
Within five years, there were two adverse entries. In
neither of them, however, was his integrity doubted. These
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adverse remarks were not communicated to him. The Bench
consisting of E.S. Venkataramiah and K.N. Singh JJ. quashed
it on two grounds viz.,
1. It would not be reasonable and just to consider
adverse entries of remote past and to ignore good entries of
recent past. If entries for a period of more than 10 years
past are taken into account it would be an act of
850
digging out past to get some material to make an order
against the employee.
2. In Gurdyal Singh Fiji v. State of Punjab, [1979] 3
S.C.R. 518 and Amarkant Chaudhary v. State of Bihar, [1984]
2 S.C.R. 299, it was held that unless an adverse report is
communicated and representation, if any, made by the
employee is considered, it may not be acted upon to deny the
promotion. The same consideration applies where the
adverse entries are taken into account in retiring an
employee pre-maturely from service. K.N. Singh, J. speaking
for the Bench observed: "it would be unjust and unfair and
contrary to principles of natural justice to retire pre-
maturely a government employee on the basis of adverse
entries which are either not communicated to him or if
communicated, representations made against those entries are
not considered and disposed of".
This is the first case in which the principles of
natural justice were imported in the case of compulsory
retirement even though it was held expressly in J.N. Sinha
that the said principles are not attracted. This view was
reiterated by K.N. Singh, J. again in [1989] 4 S.C.C. 664
Baidyanath Mahapatra v. State of Orissa, (Bench comprising
of K.N. Singh and M.H. Kania, JJ.). In this case, the Review
Committee took into account the entire service record of the
employee including the adverse remarks relating to the year
1969 to 1982 (barring certain intervening years for which no
adverse remarks were made). The employee had joined the
Orissa Government service as an Assistant Engineer in 1955.
In 1961 he was promoted to the post of Executive Engineer
and in 1976 to the post of Superintending Engineer. In 1979
he was allowed to cross the efficiency bar with effect from
1.1.1979. He was compulsorily retired by an order dated
10.11.1983. The Bench held in the first instance that the
adverse entries for the period prior to his promotion as
Superintending Engineer cannot be taken into account. It was
held that if the officer was promoted to a higher post, and
that too a selection post, notwithstanding such adverse
entries, it must be presumed that the said entries lost
their significance and cannot be revived to retire the
officer compulsorily. Regarding the adverse entries for the
subsequent years and in particular relating to the years
1981-82 and 1982-83 it was found that though the said
adverse remarks were communicated, the period prescribed for
making a representation had not expired. The Bench observed:
".......These facts make it amply clear that the
appellant’s
851
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 of impugned order was
issued. 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. See Brij Mohan Singh Chopra v.
State of Punjab."
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24. On the above basis, it was held that the Review
Committee ought to have waited till the expiry of the period
prescribed for making representation against the said
remarks and if any representation was made it should have
been considered and disposed of before they could be taken
into consideration for forming the requisite opinion. In
other words, it was held that it was not open to the Review
Committee and the government to rely upon the said adverse
entries relating to the years 1981-82 and 1982-83, in the
circumstances. Unfortunately, the decision in J.N. Sinha was
not brought to the notice of the learned Judges when
deciding the above two cases.
25. The basis of the decisions in Brij Mohan Singh
Chopra and Baidyanath Mahapatra, it appears, is that while
passing an order of compulsory retirement, the authority
must act consistent with the principles of natural justice.
It is said to expressly in Brij Mohan Singh Chopra. This
premise, if carried to its logical end, would also mean
affording an opportunity to the concerned government servant
to show cause against the action proposed and all that it
involves. It is true that these decisions do not go to that
extent but limit their holding to only one facet of the rule
viz., ‘acting upon undisclosed material to the prejudice of
a man is a violation of the principle of natural justice.’
This holding is in direct conflict with the decision in
J.N.Sinha which excludes application of principles of
natural justice. As pointed out above, J.N. Sinha was
decided after, and expressly refers to the decisions in,
Binapani Devi and Kraipak and yet holds that principles of
natural justice are not attracted in a case of compulsory
retirement. The question is which of the two views is the
correct one. While answering this question, it is necessary
to keep the following factors in mind: (a) Compulsory
retirement provided by F.R. 56 (j) or other corresponding
rules, is not a punishment. It does not involve any stigma
nor any implication of misbehaviour or incapacity. Three
Constitution Benches have said so vide Shyam Lal
Shivacharana and R.L.
852
Butail. (b) F.R. 56 (j) as also the first proviso to Rule
71(a) of the Orissa Service Code, empower the government to
order compulsory retirement of a government servant if in
their "opinion", it is in the public interest so to do. This
means that the action has to be taken on the subjective
satisfaction of the government. In R.L. Butail, the
Constitution Bench observed:
"......In Union of India v. Col J.N. Sinha this
Court stated that F.R. 56(j) in express terms
confers on the appropriate authority an absolute
right to retire a Government servant on his
attaining the age of 55 years if such authority is
of the opinion that it is in public interest so to
do. The decision further states:
"If that authority, bona fide forms that opinion,
the correctness of that opinion cannot be
challenged before courts. It is open to an
aggrieved party to contend that the requisite
opinion has not been formed or the decision is
based on collateral grounds or that it is an
arbitrary decision."
26. The law on the subjective satisfaction has been
dealt with elaborately in Barium Chemicals v. Company Law
Board, AIR 1967 S.C. 295. At page 323, Shelat, J., after
referring to several decisions dealing with action taken on
subjective satisfaction, observed thus:
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"Bearing in mind these principles the provisions of
S. 237 (b) may now be examined. The clause empowers
the Central Government and by reason of delegation
of its powers the Board to appoint inspectors to
investigate the affairs of the company, if "in the
opinion of the Central Government" (now the Board)
there are circumstances "suggesting" what is stated
in the three sub-clauses. The power is executive
and the opinion requisite before an order can be
made is of the Central Government or the Board as
the case may be and not of a Court. Therefore, the
Court cannot substitute its own opinion for the
opinion of the authority. But the question is,
whether the entire action under the section is
subjective?"
27. The learned Judges then referred to certain other
decisions including the decision in Vallukunnel v. Reserve
Bank of India, AIR 1962 S.C. 1371 and concluded as follows:
853
"Therefore, the words, "reason to believe" or "in
the opinion of"do not always lead to the
construction that the process of entertaining
"reason to believe" or "the opinion" is an
altogether subjective process not lending itself
even to a limited scrutiny by the court that such
"reason to believe" or "opinion" was not formed on
relevant facts or within the limits or as Lord
Radcliffe and Lord Reid called the restraints of
the statute as an alternative safeguard to rule of
natural justice where the function is
administrative."
28. The blurring of the dividing line between a quasi-
judicial order and an administrative order, pointed out in
Kraipak has no effect upon the above position, more so when
compulsory retirement is not a punishment nor does it imply
any stigma. Kraipak- or for that matter, Maneka Gandhi -
cannot be understood as doing away with the concept of
subjective satisfaction.
29. On the above premises, it follows, in our respectful
opinion that the view taken in J.N. Sinha is the correct one
viz., principles of natural justice are not attracted in a
case of compulsory retirement under F.R. 56(j) or a rule
corresponding to it. In this context, we may point out a
practical difficulty arising from the simultaneous operation
of two rules enunciated in Brij Mohan Singh Chopra. On one
hand, it is stated that only the entries of last ten years
should be seen and 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 if the appeal is dismissed, the government
servant may file a revision or make a representation to a
still higher authority. He may also approach a court or
Tribunal for expunging those remarks. Should the government
wait until all these stages are over. All that would
naturally take a long time by which time, these reports
would also have become stale. A government 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 should be preferred over Brij Mohan
Singh Chopra and Baidyanath Mahapatra, on the question of
taking into consideration uncommunicated adverse remarks.
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854
30. Another factor to be borne in mind is this: most
often, the authority which made the adverse remarks and the
authority competent to retire him compulsorily are not the
same. There is no reason to presume that the authority
competent to retire him will not act bonafide or will not
consider the entire record dispassionately. As the decided
cases show, very often, a Review Committee consisting of
more than one responsible official is constituted to examine
the cases and make their recommendation to the government.
The Review Committee, or the government, would not naturally
be swayed by one or two remarks, favourable or adverse. They
would form an opinion on a totality of consideration of the
entire record - including representations, if any, made by
the government servant against the above remarks - of course
attaching more importance to later period of his service.
Another circumstance to be borne in mind is the unlikelihood
of succession of officers making unfounded remarks against a
government servant.
31. We may not be understood as saying either that
adverse remarks need not be communicated or that the
representations, if any, submitted by the government servant
(against such remarks) need not be considered or disposed
of. The adverse remarks ought to be communicated in the
normal course, as required by the Rules/orders in that
behalf. Any representations made against them would and
should also be dealt with in the normal course, with
reasonable promptitude. All that we are saying is that the
action under F.R.56(j) (or the Rule corresponding to it)
need not await the disposal or final disposal of such
representation or representations, as the case may be. In
some cases, it may happen that some adverse remarks of the
recent years are not communicated or if communicated, the
representation received in that behalf are pending
consideration. On this account alone, the action under
F.R.56(j) need not be held back. There is reason to presume
that the Review Committee or the government, if it chooses
to take into consideration such uncommunicated remarks,
would not be conscious or cognizant of the fact that they
are not communicated to the government servant and that he
was not given an opportunity to explain or rebut the same.
Similarly, if any representation made by the government
servant is there, it shall also be taken into consideration.
We may reiterate that not only the Review Committee is
generally composed of high and responsible officers, the
power is vested in government alone and not in a minor
official. It is unlikely that adverse remarks over a number
of years remain uncommunicated and yet they are made the
primary basis of action. Such an unlikely situation if
indeed present, may be indicative of malice in law. We may
855
mention in this connection that the remedy provided by
Article 226 of the Constitution is no less an important
safeguard. Even with its well-known constraints, the remedy
is an effective check against mala fide, perverse or
arbitrary action.
At this stage, we think it appropriate to append a note
of clarification. What is normally required to be
communicated is adverse remarks - not every remark, comment
or observation made in the confidential rolls. There may be
any number of remarks, observations and comments, which do
not constitute adverse remarks, but are yet relevant for the
purpose of F.R. 56(j) or a Rule corresponding to it. The
object and purposes for which this power is to be exercised
are well-stated in J.N. Sinha and other decisions referred
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supra.
32. The 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 servant 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 material; in short, if it is found to
be perverse order.
(iv) The government (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
government servant is promoted to a higher post
notwithstanding the adverse remarks, such remarks lose their
856
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 interfere. Interference is permissible only on the
grounds mentioned in (iii) above. This aspect has been
discussed in paras 29 to 31 above.
33. Before parting with the case, we must refer to an
argument urged by Sri R.K. Garg. He stressed what is called,
the new concept of Article 14 as adumberated in Maneka
Gandhi (A.I.R. 1978 S.C. 579) and submitted on that basis
that any and every arbitrary action is open to judicial
scrutiny. The general principle evolved in the said decision
is not in issue here. We are concerned mainly with the
question whether a facet of principle of natural justice -
audi alteram partem - is attracted in the case of compulsory
retirement. In other words, the question is whether acting
upon undisclosed material is a ground for quashing the order
of compulsory retirement. Since we have held that the nature
of the function is not quasi-judicial in nature and because
the action has to be taken on the subjective satisfaction of
the Government, there is no room for importing the said
facet of natural justice in such a case, more particularly
when an order of compulsory retirement is not a punishment
nor does it involve any stigma.
34. So far as the appeals before us are concerned, the
High Court which has looked into the relevant record and
confidential records has opined that the order of compulsory
retirement was based not merely upon the said adverse
remarks but other material as well. Secondly, it has also
found that the material placed before them does not justify
the conclusion that the said remarks were not recorded duly
or properly. In the circumstances, it cannot be said that
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the order of compulsory retirement suffers from mala fides
or that it is based on no evidence or that it is arbitrary.
35. For the above reason, both the appeals are dismissed
but in circumstances of the case, we make no order as to
costs.
V.P.R. Appeals
dismissed.
857