Orissa High Court
Sanatan Sahu vs The State Of Orissa Represented Through ... on 6 December, 2017
Author: B.K. Nayak
Bench: B.K. Nayak
THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 28312 OF 2011
In the matter of application under Articles 226 and 227 of the
Constitution of India.
-----------------
Sanatan Sahu ........ Petitioner
-Versus-
The State of Orissa, represented
through the Special Secretary to
Government, General Administration
Department, Secretariate Building
Bhubaneswar and others
......... Opp. parties
For Petitioner M/s. Sachidananda Sahoo & P.R. Bhuyan
For Opposite Parties : Mr. Bibhu Prasad Tripathy
Additional Government Advocate
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P R E S E N T :-
THE HONOURABLE MR. JUSTICE B.K. NAYAK
AND
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
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Date of Judgment-06.12.2017
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DR. D.P. CHOUDHURY, J. The petitioner assails the order vide Annexure-6
issued by the opposite parties by retiring him compulsorily from
Government service.
FACTS:
2. The factual matrix leading to filing of the writ petition is that
the petitioner was appointed as LDC/Junior Clerk in the Judgeship of
2
Kandhamal-Boudh, Phulbani on 25.11.1981. On 10.10.1997, he was
promoted to the post of Senior Clerk and on 02.12.2003, he was
promoted to the post of Sheristadar in the Court of Civil Judge (Junior
Division)-cum-J.M.F.C., Kantamal. The petitioner has rendered service
purportedly from 25.11.1981 to 10.05.2010 with all sincerity and
integrity. But on 07.08.2010 the Registrar Civil Courts, Phulbani made a
communication to the effect that the District Review Committee held on
31.07.2010 observed that the petitioner is warned with an instruction to
avoid shirking responsibility in attending the office work and be active in
his duty. The petitioner was directed to be kept under observation till the
next Review Meeting vide Annexure-1. On that day the petitioner was
also issued with another notice about the above observation vide
Annexure-2.
3. Be it is stated that on 25.02.2011, the Review Committee
Meeting was held again for review of the service of Class-III Government
employees who have completed the age of 50 years and above 54 years.
In that meeting the petitioner was compulsorily retired from the
Government service. Subsequently, the petitioner received the copy of
the Character Roll (C.C.R.) for the period from 09.02.2007 to
19.01.2011. The petitioner came to know from the C.C.R. that he was on
duty. On the other hand, on 16.07.2009 the then District Judge reported
that the performance is satisfactory. The petitioner purportedly remained
absent from 06.11.2010 to 12.12.2010 on health ground.
3
4. Be it is stated that there is no adverse remark against the
petitioner or any strong ground to pass the order of premature
retirement against the petitioner. On the other hand, the Circular of the
G.A. Department on 24.11.1987 containing the provisions of Rule 71(a)
of the Orissa Service Code (hereinafter called "the Code") have been
grossly violated by holding the Review Meeting twice in a year. So, the
writ petition is filed challenging the order of compulsory retirement
passed on 26.02.2011 vide Annexure-6 and to quash the observation of
the Review Committee with the consequential relief to reinstate him.
SUBMISSIONS
5. Mr. S. Sahoo, learned counsel for the petitioner submits that
there is gross violation of the provisions of the law by the opposite
parties by retiring the petitioner compulsorily from the Government
service. The petitioner has not been communicated about the adverse
remark except the communication of observation of the District Review
Committee. There is no impediment at any time for his promotion to
different cadres till 10.05.2010. There is no department enquiry or any
proceeding initiated against the petitioner. The communication of the
remark of the Review Committee is in utter disregard to the provisions of
law because the Review Committee which should be held once in a year
as per Rule 71(a) of the Code read with G.A. Department Circular letter
dated 24.11.1987, the Review Committee was held on 31.07.2010
leaving the petitioner with warning, and again held on 25.02.2011 when
4
action was taken against the petitioner in retiring him compulsorily from
the service at the age of 50 years. So, such proceeding of the meeting is
illegal and improper and as such the order of compulsory retirement
communicated to the petitioner vide Annexure-6 is unsustainable in law.
So, he prayed to quash the orders vide Annexures-6 and 7 with
consequential relief to reinstate the petitioner w.e.f. 1.03.2011.
6. Mr. B.P. Tripathy, learned Additional Government Advocate
submits that opposite party no.2 has rightly made observation by
directing the petitioner to avoid shirking responsibility in attending the
official work and to be active in his duty. He rightly kept the petitioner
under observation till the next meeting of the Review Committee and
subsequently retired him prematurely from service as the petitioner was
saddled with incompetency.
7. Learned Additional Government Advocate further submits
that the observation of the Review Committee is based on records and
that under law un-communicated adverse remark can be taken into
consideration while reviewing the service of an employee of his whole
career.
8. Learned Additional Government Advocate submits that while
the petitioner was discharging his duty as Sheristadar in the Court of
J.M.F.C., Daringbadi, for reasons best known to him, he remained
unauthorizedly absent for a quite good length of period, committed
5
negligence in not preparing the bills in time for which the staff and the
officers could not receive the salary for the month of October, 2010 till
30.11.2010. Similarly, while the petitioner was in-charge of the Nizarat in
the District Court, Phulbani he has suppressed the records and files for
which the Registrar Civil Courts, Phulbani has warned the petitioner to
avoid shirking responsibility in attending the office work and advised to
be active in the office work.
9. Learned Additional Government Advocate further submits
that being in-charge of the Sheristadar in the Court of Civil Judge(Junior
Division)-cum-J.M.F.C., Daringbadi, he has failed to put up the plaint in
C.S. No.2/2010 on the date of filing of the suit and the lawyers have
made complaint against him for which he was asked to explain for such
negligence in duty. Thus, he submitted that due to such incompetency
and negligence in duty, the opposite parties are justified in their action in
retiring him compulsorily because it is the settled law that dead wood
should be removed after review of their whole service career.
10. Learned Additional Government Advocate countering the
submission of the learned counsel for the petitioner further submitted
that there were two departmental proceedings against the petitioner. In
D.P. No.3/1993 the petitioner was awarded punishment of stoppage of
two increments without cumulative effect for his gross negligence and
dereliction in duty. In D.P. No.1/1997 the petitioner was censured for his
6
gross misconduct and insubordination while working as Junior Clerk in
the Court of S.D.J.M., Boudh. Similarly, the petitioner was placed under
suspension in contemplation of D.P. No.9/2005 and in that proceeding
also petitioner was awarded with punishment of stopping of two annual
consecutive increments with cumulative effect for his misconduct,
unauthorized absence, carelessness, disobedience of order and
negligence in duty. So, he submits that it cannot be said that there was
no proceeding or adverse remark against him.
11. Learned Additional Government Advocate further submitted
that under Rule 71(a) of the Code and the G.A. Department Circular
letter dated 24.11.1987, the Review Committee is to sit once in a year
but there is no bar in sitting for more than once in a year. When the
Review Committee, in the instant case was convened once and made
their observation communicated to the petitioner and action was taken in
the next meeting, there is no violation of any procedural law as alleged
by the learned counsel for the petitioner. On the other hand, the opposite
parties have taken lawful action against the petitioner by passing the
order of compulsory retirement.
12. POINT FOR DETERMINATION
(i) The main point for consideration in this case is whether the action of
the opposite parties in retiring the petitioner compulsorily from the
Government service is legal and proper?
7
DISCUSSION
13. It is admitted fact that the petitioner was appointed as Junior
Clerk and he was promoted from time to time to the higher post and to
the post of Sheristadar in the Court of Civil Judge(Junior Division)-cum-
J.M.F.C., Daringbadi. It is not in dispute that the learned Civil Judge
(Junior Division)-cum-J.M.F.C., Daringbadi has informed the opposite
party no.2 about unauthorized absence of the petitioner resulting non-
disbursement of salary of the staff and officers in the office of Civil Judge
(Junior Division)-cum-J.M.F.C., Daringbadi. It is also not in dispute that
the petitioner was served with the notice about the observation of the
District Review Committee held on 31.07.2010.
14. Before going to the fact of the case, it is necessary to discuss
about the law relating to the compulsory retirement as on date. No
doubt, the law on the compulsory retirement of the employees of the
State Government is applicable to the employees of judiciary. So, the
rules of compulsory retirement as per the Orissa Service Code and the
notification issued by the G.A. Department from time to time are relevant
to be gone through. Rule 71(a) of the Orissa Service Code is produced
below for reference:-
"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
8
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 up to the date of the completion of the age of
58 years or retired on completing the age of 55 years
in public interest :
Provided that a Government servant may retire
from 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 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 enquiries 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".
15. Apart from this, Clause-7 of the Circular issued under Rule
71(a) of the Orissa Service Code speaks in the following manner:-
"7. It will not be in public interest to retain an
employee in service if -
(a) he is clearly lacking in integrity, or
(b) although his integrity is not in doubt, his
physical or mental condition is such as to make
him inefficient for further service, or
(c) even though his work in a lower grade was
satisfactory, he clearly lacks in the standard of
efficiency required to discharge the duties of
the post he presently holds".
9
Beside the above rules, the decisions rendered by the
Hon'ble Apex Court are to be kept in view.
16. In the decision reported in Baldev Raj Chadha v. Union of
India and others; AIR 1981 SC 70 where Their Lordships while
considering the case of compulsory retirement have observed at Para-8
in the following manner:
"8. This takes us to the meat of the matter, viz., whether the
appellant was retired because and only because it was
necessary in the public interest so to do. It is an affirmative
action, not a negative disposition, a positive conclusion, not
a neutral attitude. It is a terminal step to justify which the
onus is on the Administration, not a matter where the
victim must make out the contrary. Security of tenure is the
condition of efficiency of service. The Administration, to be
competent, must have servants who are not plagued by
uncertainty about tomorrow. At the age of 50 when you
have family responsibility and the sombre problems of one's
own life's evening!, your experience, accomplishments and
fullness of fitness become an asset to the Administration, if
and only if you are not harried or worried by 'what will
happen to me and my family?' 'Where will I go if
cashiered?' How will I survive when I am too old to be
newly employed and too young to be superannuated?'
These considerations become all the more important in
departments where functional independence, fearless
scrutiny, and freedom to expose evil or error in high places
is the task. And the Ombudsmanic tasks of the office or
audit vested in the C. & AG. and the entire army of
monitors and minions under him are too strategic for the
nation's financial health and discipline that immunity from
subtle threats and oblique overawing is very much in public
interest. So it is that we must emphatically state that under
the guise of 'public interest' if unlimited discretion is
regarded acceptable for making an order of premature
retirement, it will be the surest menace to public interest
10
and must fail for unreasonableness, arbitrariness and
disguised dismissal. To constitutionalise the rule, we must
so read it as to free it from the potential for the mischiefs
we have just projected. The exercise of power must be
bona fide and promote public interest. There is no
demonstrable ground to infer mala fides here and the only
infirmity alleged which deserves serious notice is as to
whether the order has been made in public interest. When
an order is challenged and its validity depends on its being
supported by public interest the State must disclose the
material so that the court may be satisfied that the order is
not bad for want of any material whatever which, to a
reasonable man reasonably instructed in the law, is
sufficient to sustain the grounds of 'public interest'
justifying forced retirement of the public servant. 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. The limitations on judicial power
in this area are well-known and we are confined to an
examination of the material merely to see whether a
rational mind may conceivably be satisfied that the
compulsory retirement of the officer concerned is necessary
in public interest.
17. In Baikuntha Nath Das v. Chief District Medical Officer;
(1992) 2 SCC 299, where Their Lordships in para-8 observed as
follows:
"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).
xxx xxx xxx
34. 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.
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(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 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
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 sting, more so, if the promotion is based upon merit
(selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed
by a Court merely on the showing that while passing it
uncommunicated adverse remarks were also taken into
consideration. That circumstance by itself cannot be a basis for
interference.
Interference is permissible only on the grounds mentioned in (iii)
above. This aspect has been discussed in paras 30 to 32 above."
18. In S. Ramachandra Raju v. State of Orissa; 1994 Supp.
(3) SCC 424 Their Lordships at para-9 observed as follows:
"9. ............ The entire service record or character
rolls or confidential reports maintained would furnish
the back drop material for consideration by the
Government or the Review Committee or the
appropriate authority. On consideration of the totality of
the facts and circumstances alone, the government
should form the opinion that the government officer
needs to be compulsorily retired from service.
12
Therefore, the entire service record more particular the
latest, would form the foundation for the opinion and
furnish the base to exercise the power under the
relevant rule to compulsorily retire a government officer.
When an officer reaching the age of compulsory
retirement, as was pointed out by this Court, he could
neither seek alternative appointment nor meet the
family burdens with the pension or other benefits he
gets and thereby he would be subjected to great
hardship and family would be greatly affected.
Therefore before exercising the power, the competent
appropriate authority must weigh pros and cons and
balance the public interest as against the individual
interest. On total evaluation of the entire record of
service if the government or the governmental authority
forms the opinion that in the public interest the officer
needs to be retired compulsorily, the court may not
interfere with the exercise of such bona fide exercise of
power but the court has power and duty to exercise the
power of judicial review not as a court of appeal but in
its exercise of judicial review to consider whether the
power has been properly exercised or is arbitrary or
vitiated either by mala fide or actuated by extraneous
consideration or arbitrary in retiring the government
officer compulsorily from service".
19. In Pyare Mohan Lal v. State of Jharkhand; (2010) 10
SCC 693 Their Lordships expounded the theory of compulsory
retirement in a very lucid manner. Their Lordships have taken note of
most of the decisions including the decision of Baikuntha Nath Das
(supra) and observed about the washed-off theory. In paragraphs 19, 20,
21, 22 and 24 of the above judgment Their Lordships observed as
follows:-
"19. In State of Punjab Vs. Dewan Chuni Lal, AIR
1970 SC 2086, a two-Judge Bench of this Court held that
adverse entries regarding the dishonesty and inefficiency of
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the government employee in his ACRs have to be ignored if,
subsequent to recording of the same, he had been allowed to
cross the efficiency bar, as it would mean that while
permitting him to cross the efficiency bar such entries had
been considered and were not found of serious nature for the
purpose of crossing the efficiency bar.
20. Similarly, a two-Judge Bench of this Court in
Baidyanath Mahapatra Vs. State of Orissa, AIR
1989 SC 2218, had taken a similar view on the issue
observing that adverse entries awarded to the employee
in the remote past lost significance in view of the fact
that he had subsequently been promoted to the higher
post, for the reason that while considering the case for
promotion he had been found to possess eligibility and
suitability and if such entry did not reflect deficiency in
his work and conduct for the purpose of promotion, it
would be difficult to comprehend how such an adverse
entry could be pressed into service for retiring him
compulsorily. When a government servant is promoted
to higher post on the basis of merit and selection,
adverse entries if any contained in his service record
lose their significance and remain on record as part of
past history. This view has been adopted by this Court
in Baikuntha Nath Das, (1992) 2 SCC 299.
21. However, a three-Judge Bench of this Court in
State of Orissa V. Ram Chandra Das;(1996) 5 SCC
331 had taken a different view as it had been held
therein that such entries still remain part of the record
for overall consideration to retire a government servant
compulsorily. The object always is public interest.
Therefore, such entries do not lose significance, even if
the employee has subsequently been promoted. The
Court held as under:(SCC pp.333-34, para-7)
"7. ........Merely because a promotion has been
given even after adverse entries were made, cannot be
a ground to note that compulsory retirement of the
government servant could not be ordered. The evidence
does not become inadmissible or irrelevant as opined by
the Tribunal. What would be relevant is whether upon
that state of record as a reasonable prudent man would
the Government or competent officer reach that
decision. We find that selfsame material after promotion
may not be taken into consideration only to deny him
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further promotion, if any. But that material undoubtedly
would be available to the Government to consider the
overall expediency or necessity to continue the
government servant in service after he attained the
required length of service or qualified period of service
for pension." (emphasis added)
This judgment has been approved and followed by this
court in State of Gujarat V. Umedbhai M. Patel, AIR
2001 SC 1109, emphasising that the "entire record" of
the government servant is to be examined."
"22. In Vijay Kumar Jain, (2002) 3 SCC 641, this
Court held that the vigour or sting of an entry does not
get wiped out, particularly, while considering the case of
employee for giving him compulsory retirement, as it
requires the examination of the entire service records,
including character rolls and confidential reports.
`Vigour or sting of an adverse entry is not wiped out'
merely it relates to the remote past. There may be a
single adverse entry of integrity which may be sufficient
to compulsorily retire the government servant.
24. In view of the above, the law can be summarised
to state that in case there is a conflict between two or
more judgments of this court, the judgment of the
larger Bench is to be followed. More so, the washed off
theory does not have universal application. It may have
relevance while considering the case of government
servant for further promotion but not in a case where
the employee is being assessed by the Reviewing
Authority to determine whether he is fit to be retained
in service or requires to be given compulsory
retirement, as the Committee is to assess his suitability
taking into consideration his "entire service record".
20. The aforesaid decision is well followed in Rajasthan State
Road Transport Corporation and others v. Babu Lal Jangir; (2013)
10 SCC 551, where Their Lordships observed at para-24 in the following
manner:
"24. ........ As per the law laid down in the aforesaid
judgments, it is clear that entire service record is
15
relevant for deciding as to whether the government
servant needs to be eased out prematurely. Of
course, at the same time, subsequent record is also
relevant, and immediate past record, preceding the
date on which decision is to be taken would be of
more value, qualitatively. What is to be examined is
the "overall performance" on the basis of "entire
service record" to come to the conclusion as to
whether the employee concerned has become a
deadwood and it is in public interest to retire him
compulsorily. The Authority must consider and
examine the overall effect of the entries of the officer
concerned and not an isolated entry, as it may well
be in some cases that in spite of satisfactory
performance, the Authority may desire to
compulsorily retire an employee in public interest, as
in the opinion of the said authority, the post has to
be manned by a more efficient and dynamic person
and if there is sufficient material on record to show
that the employee "rendered himself a liability to the
institution", there is no occasion for the Court to
interfere in the exercise of its limited power of
judicial review."
21. Relying upon the aforesaid decisions, this Court has also
taken similar view by observing that washed-off theory will have no
universal application when a person is considered his continuance in
service or not in the public interest. In that case the entire service
record has to be taken into consideration. Even if the old adverse entry
has been ignored while giving promotion, the same can be considered
or assessed while the service of a Government servant is reviewed
under Rule 71 (a) but due regard must have to be given to all aspects,
particularly with respect to integrity, without which allowing a public
servant to continue in service is dangerous or menace to the society as
well as hurdle for reposing confidence on the organization. It is
16
needless to say that judiciary being the third column of the Constitution
is the bedrock of development of the country and it should command
tremendous faith of people at large at any cost. Integrity and
competency are both sides of a coin that every judicial employee has to
possess in order to continuance in service. At no stretch of imagination
integrity or competency of a judicial employee can be compromised at
any event. So, whole career of the employee has to be considered by
the Review Committee.
22. In the instant case, the service record of the petitioner
and ACR entries reveal as follows:-
Year Post held Remarks by Remarks by Date of
immediate superior officer communicati
superior on of adverse
(gazette) officer remarks, if
any.
From Nazir Hard working,
25.11.81 sincere knowledge
upto 5.10.83 in GRCO Civil and
Criminal needs
improvement.
October 1983 Nazir and then Manageable but I do not agree
to June 1985 Asst. Nazir- he should improve with the remark.
cum-Clerk in sincerity. "He is most
charge of inefficient. He has
general files no mind to work.
(criminal) He is inhabit of
avoiding the
work. He should
try to improve."
Communicate the
adverse remark to
person concerned.
1986-87 Assisting He is improving
Accountant
1988 Assisting the He is a sincere Yes.
Accountant and good worker. I agree
1989 Assisting the Same as above. Yes.
Accountant I agree
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1989-90 Accountant o/o A good worker
J.M.F.C., G. and always well
Udaygiri behaved.
1990-1991 Accountant and Good Accountant. I agree
1991-1992 dealing with So far other
G.R. files of aspects are
the general concerned, he is
side. average
1992-93 Junior Clerk in Satisfactory I agree
charge of
records in
2(a) C.C. and
2(b) C.C. and
3(a) C.C. cases
of the general
side and acting
as Accountant
1993-94 Accountant and Satisfactory I agree
dealing with
2(a)C.C., 2(b)
C.C. cases
10.10.97 Sr. Clerk Satisfactory
to 11.6.99 working as
Bench Clerk to
the S.D.J.M.,
Balliguda
From 8th Sr. Clerk acting
Sincere, honest
December as Head Clerk and hard working,
2000 till 15th capable in
May, 2003 managing
different seats.
17.4.04 Sr. Clerk-cum- His behavior is
to 30.6.04 Bench Clerk good. His overall
(CJ) Sr. performance is
Division, good.
Balligulda
02.12.2003 Sr. Clerk Slowly works in
to 13.6.2005 every seat. Not
punctual keeps
work pending.
24.9.06- Nazir at He is obedient,
29.1.07 District Office, and faithful. He
Phbulbani should be sincere
in his duty. His
service is
satisfactory.
09.02.02 Nazir, District He is good but to I agree.
till 21.1.2008 Court take better
responsibility.
nothing is heard
against his
integrity.
22.5.2008 Nazir He is a good man Performance is
to 12.06.09 but slow in action. satisfactory but
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Nothing is heard slow hand.
against his
integrity.
22.06.09 Nazir He is good. But
to 10.5.10 reluctant to take
any responsibility.
Nothing is heard
against his
integrity.
2010-11 Sheristadar Habitual Accepted. Put up
from unauthorized with all necessary
16.08.2010 to absentee. Fails to references in the
19.01.2010 submit review meeting
explanation when scheduled to be
cal for. Very slow, held on
callous and 25.02.2011 for
lethargic in work. consideration as
Avoids already ordered in
responsibility. the file today.
Performance is
not satisfactory.
From the aforesaid A.C.R., it appears that from 2003
onwards the petitioner has become insincere and lacked zeal to take up
more responsibility and the same continued till 2010.
23. The service book of the petitioner shows that two increments
without cumulative effect were stopped during the year 1994-1995 as
ordered in D.P. No.3/1995. It is revealed from the service book that in
D.P. No.9/2005 two annual consecutive increments were stopped with
cumulative effect and his period of unauthorized absence for the period
from 09.04.2005 to 22.05.2005 was treated as leave without pay and
also the period of suspension was treated as such. The aforesaid records
with C.C.R. do not give a rosy picture of his service career. On the other
hand, the petitioner is found to have suppressed material facts with
regard to the departmental proceeding disposed of against him with
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award of punishment. He, who seeks equity must come with clean hand.
So, the conduct of the petitioner in this case also is not clean enough to
take a positive view. The observation of the Review Committee in the
first meeting held on 31.07.2010 as reflected in Annexure-2 shows that
the petitioner was warned with an instruction to avoid shirking
responsibility in attending the office work and to be active in his duty. On
that day, the committee has kept the petitioner under observation with
above warning till the next Review Meeting. It reveals from the
Annexure-2 that while such notice was served on him, he being in-charge
of the Nizarat suppressed such letter for which he was also served with a
notice. However, Annexure-3 shows that the Court of Civil Judge (Junior
Division)-cum-J.M.F.C., Daringbadi has informed the opposite party no.2
that the petitioner has remained unauthorized absent from duty since
6.11.2010 and did not receive the recall notice for which the petitioner
was issued with notice for his misconduct, disobedience of order, willful
unauthorized absence and negligence in duty.
24. Annexure-7 shows that in the Review Committee Meeting
dated 25.02.2011 the then District Judge, Phulbani has noted the
reasons for taking decision in the following manner:-
"COPY OF PROCEEDING OF THE REVIEW COMMITTEE MEETING
HELD ON 25.02.2011 FOR THE JUDGESHIP OF KANDHAMAL-
BOUDH, IN RESPECT OF CLASS-III GOVT. EMPLOYEES WHO
HAVE COMPLETED THE AGE ABOVE 50 YEARS & ABOVE 54
YEARS"
_________
20
As per the provision of Rule-71(a) of the Orissa Service Code
and in terms of instructions contained in Hon'ble Court's letter
No.6913 dated 14.10.1976 read with General Administration
Department Letter No.30495 dtd.24.11.1987, the Review Committee
Meeting is held to-day i.e. on 25th February, 2011 in the Chamber of
the District Judge, Kandhamal-Boudh, Phulbani with the following
Members.
1. Shri Prakash Chandra Mishra,
District Judge,
Kandhamal-Boudh, Phulbani.
2. Shri Dukhishyam Chaulia,
District Judge, Puri.
The cases of the following employees who have attained the
age of 50 years and 54 years above are put up before the Committee
for consideration.
I. FIRST REVIEW AT THE AGE ABOVE 50 YEARS:-
Xx xx xx xx
2. Sri Sanatan Sahu, Sheristadar, J.M.F.C. Court, Daringbadi.
Xx xx xx xx
Sri Sanatan Sahu, Sheristadar,
J.M.F.C. Court, Daringhbadi
Sri Sanatan Sahu is working as Sheristadar in the J.M.F.C.
Court, Daringbadi since 16.08.2010. He was warned by the previous
Review Committee held on 31.07.2010 to avoid shirking
responsibility in attending the office work and be active in duty and
was kept under observation till the next Review Meeting. It was
communicated to him vide District Office Letter No.4901
dtd.7.8.2010. But no improvement is found with him in shouldering
responsibility and attending the office work. He continued his practice
of remaining frequent unauthorized absent from duty. His
performance during the period of last 6 months is found not
satisfactory. For his latches, the Presiding Officer and Staffs are not
able to get their salary in time. Also he failed to put up the Plaint in
C.S.2/2010 before the Civil Judge (JD), Daringbadi on the date of
filing i.e.27.10.2010 and supplied the date of posting to the Lawyers
as 11.11.2010 for checking and remained on leave without placing
the same before the Civil Judge (JD), Daringbadi, for which the
administration received allegation from the concerned lawyer and on
being asked to explain, Sri Sahu did not submit his explanation which
shows his insubordination and negligence in duty.
Further, Sri Sahu after receiving the letter of observation of
21
previous Review Committee as mentioned in the above para
suppressed the said letter and caused disappearance of the same
from the official records knowing fully well about the contents of the
same that it goes against him.
From the above, it is clear that Sri Sahu does not want to
accept the grace awarded by the previous Review Committee and as
such he became an undeserving Government Servant and his
continuance in this Department will be detrimental to the public
interest. If he will be allowed to continue it may encourage others to
follow his foot prints. So, this being the most disciplined department,
people having indiscipline career should not be allowed to continue
for the larger interest of the public. So, in the interest of
administration the services of Sri Sahu should be dispensed with.
Hence, the Committee arrives at the conclusion that Sri Sanatan
Sahu be retired compulsorily.
Xx xx xx xx
Sd/-D. Chaulia, Sd/- P.C. Mishra,
25.2.2011 25.2.2011
District Judge, Puri District Judge,
Kandhamal-Boudh, Phulbani"
From the aforesaid material, it appears that not only there is
departmental proceedings where the petitioner has been awarded with
punishments but also he has been kept under observation in the first
Review Meeting where no action was taken but due to the complaint
again about his insincerity, reluctance to work or shouldering the
responsibility which speaks on his incompetency during interregnum a
final view was taken in Review Committee Meeting held on 25.02.2011.
25. It is reiterated that under the Rule 71(a) of Code read with
clause 7 of the G.A. Department Circular, the Review Committee Meeting
should be held once in a year where service of employees attaining the
age of 50 years, 55 years and 58 years to be reviewed but there is no
bar to hold the Review Committee Meeting for the second occasion to
consider the continuance of the petitioner in job beyond 50 years. In the
22
instant case, the first Review Committee Meeting has not allowed the
petitioner to cross the age of 50 years but specifically directed for
keeping him under observation for which it cannot be said that the
petitioner had to face second review meeting. It cannot be said that first
review meeting was final one for the petitioner but actually the second
review meeting decided the fate of the petitioner. In this regard, the
contention of the learned counsel for the petitioner falls flat.
26. In view of the decision of the Hon'ble Apex Court cited above
in the case of Baikuntha Nath Das and another-v-Chief District
Medical Officer, Baripada (supra), the Review Committee has
reviewed the entire service career of the petitioner as per the
observation made above and has taken a view to retire him while he was
at the age of 50 years because the Review Committee Meeting of the
petitioner was not over on 07.08.2010 but was only deferred till
25.02.2011. So the submission of the learned counsel for the petitioner
that the decision taken by the Review Committee on 25.02.2011 is a
smack of justice is untenable.
27. Learned counsel for the petitioner cited the decision reported
in AIR 2001 Supreme Court 1109; State of Gujurat-v-Umedbhai M.
Patel where Their Lordships observed that the order of compulsory
retirement shall not be passed as a short cut to avoid departmental
enquiry when such course is more desirable. In the instant case, the
observation of the Review Committee that there was no improvement of
23
the petitioner after last Review Committee Meeting because of the
allegation received from the Court of J.M.F.C., Daringbadi which could
have been enquired through a departmental enquiry, cannot be a ground
to take a positive view. It appears that the Review Committee has not
only taken the allegation of the Court of J.M.F.C., Daringbadi into
consideration but also has considered the observation of the previous
Review Committee and the entire service records. However, on perusal of
the entire service record along with present allegations of his
insubordination, negligence in duty and unauthorized absence and the
observation of the Review Committee, in the fact and circumstances of
the present case the view taken by the Hon'ble Apex Court in the case of
State of Gujurat-v-Umedbhai M. Patel (supra) is not applicable. So,
the contention of the learned counsel for the petitioner does not hold
good in defence of the petitioner. He has cited also decisions reported in
AIR 1967 SC 1910; Sant Ram Sharma-v-State of Rajasthan and
others, AIR 2004 SC 3291; DDA and others-v-Jogindar S. Monga
and others, (2009) 15 SCC 221; Madhya Pradesh State
Cooperative Diary Federation Limited and another-v-Rajnesh
Kumar Jamindar and others, and 2014(II) OLR-381;Epari
Vasudeva Rao-v-State of Odisha and another but they are not
required to be discussed in detail as the ratio of those cases have been
rendered in the facts and circumstances of those cases and the present
case is different from the facts of those decisions.
24
28. In view of the aforesaid analysis, we are of the view that the
decision of the Review Committee basing on the allegation and other
adverse remarks in the C.C.R. and other materials on record is
justifiable. Issue No.I is answered accordingly.
CONCLUSION
29. In the writ petition, it has been prayed to quash Annexures-6
and 7 with consequential prayer to reinstate the petitioner with
immediate effect. It has been already observed that the action of the
opposite party no.2 in retiring the petitioner compulsorily by passing
Annexure-6 is legal and proper. Annexure-7 is only compliance of the
Rule 71(a) of the Odisha Service Code since three months salary have
been awarded by Annexure-7 in compliance to Rule 71(a) of the Odisha
Service Code. On the other hand, Annexures-6 and 7 cannot be said to
be illegal and improper. Therefore, there is no other way than to hold the
orders passed vide Annexures-6 and 7 to be correct, valid and proper.
The Court, therefore do not want to interfere with the same.
In the result, the writ petition being devoid of merit, stands
dismissed.
..................................
Dr. D.P. Choudhury, J
B.K. Nayak, J.I agree.
.................................. B.K. Nayak, J Orissa High Court, Cuttack Dated the 6th December, 2017/ JM 25