Calcutta High Court
The Board Of Trustees For The Port Of ... vs Tarun Kumar Chowdhury And Ors. on 30 April, 1992
Equivalent citations: (1992)2CALLT383(HC), 96CWN872
JUDGMENT Anandamoy Bhattacharjee, J.
1. For all that I have said while speaking for a Division Bench in Ajay Sur (1981-1 Calcutta High Court Notes 254, paragraphs 5-7), I would have dismissed the appeal, if I could and affirmed the order of the learned trial Judge quashing the order of compulsory retirement of the Respondent No. 1 on the sole ground that the impugned order ought to have been passed, but has not been passed, after giving the Respondent No. 1 a reasonable opportunity of being heard. But binding authorities of the Supreme Court are standing in the way. I accordingly have had to agree, even though reluctantly, with the order proposed by brother Ray, J., notwithstanding my own views to the contrary.
A.N. Ray, J.
2. The writ petitioner is the respondent in appeal. He has succeeded in the Court below. An order of compulsory retirement passed against him on 9th December 1987 has been set aside. If the Judgment stands the respondent will retire only sometime in 1994. I am of the opinion however that the order for compulsory retirement is good in law and the judgment and order under appeal, with respect, should be set aside.
3. The law relating to service matters in India has developed considerably. There are many technical aspects of it now. The law as to compulsory retirement, which is one such, is also well settled. The points which are now beyond dispute are as follows :
(1) An order for compulsory retirement, or a rule permitting action to that effect, is not by itself, unconstitutional, or violative of either Article 14 or 19.
(2) An order for compulsory retirement does not entail a civil consequence even though it might cause an adverse effect. J. N. Sinha's case is an authority for this proposition (3) The rule of natural justice need not be observed before passing an order for compulsory retirement. This follows from such an order not entailing a civil consequence at all.
(4) An Order for compulsory retirement cannot be passed as a punishment in disguise. However, even if some disciplinary proceeding forms the background of the order for compulsory retirement, then the order will not necessarily be bad if it has been passed with the said proceeding being kept in the background only, but not basing the decision on such proceedings. The case of Dalip Singh v. The State of Punjab is an authority for this proposition.
(5) An order for compulsory retirement can be challenged if it is arbitrary, mulafide, or based on collaterial considerations.
(6) An order for compulsory retirement can also be challenged if it is passed vindictively or mechanically or by taking into account obsolete service records which are so obsolete as to be of the category of irrelevant material.
(7) An order for compulsory retirement can be passed on the apprehension either of inefficiency or of lack of integrity. It may be passed if a more efficient person is needed or a person is needed with even less possibility of allegations against his good name.
(8) An order for compulsory retirement can be challenged if the retiring authority has acted at the dictate of some other person or authority abandoning its own discretion.
4. In this case the writ petitioner was employed in service of the Port Authority from 1960. In 1975, he obtained a promotion to the post of a Senior Executive Engineer and was compulsorily retired in 1987 from the same post. In July 1986, there was an investigation into the service of the writ petitioner. A report of July 1986 was prepared in the vigilance department. After more than one year the said report was forwarded in November 1987 by the Chief Vigilance Officer to the Chairman of the Port Authorities. There is nothing to show that prior to November 1987 any information about the vigilance enquiry relating to the writ petitioner percolated to any other department from the Vigilance department, which is also not to be expected or desired. The Chief Vigilance Officer later recommended compulsory retirement. A review committee of the port authorities consisting of four members including the Chairman met and decided upon an identical course of action. In this background the Chairman himself passed the order of compulsory retirement for such retirement in the public interest.
5. The clause permitting an order for such compulsory retirement is contained in Rule 56 (j) of the fundamental rules, adopted by the appellant authorities. The relevant part of the rule is as follows :
56.(j) Notwithstanding anything contained in this rule, he appropriate authority shall, if it is of the opinion that it is in the public interest so to do have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice :
(i) If he is in Group 'A' or Group 'B' service or post in a substantive, wow-permanent or temporary capacity, or in a Group 'C post or in a substantive capacity, but officiating in a Group 'A' or Group 'B' post or service and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years.
(ii) In any other case after he has attained the age of fifty-five years.
6. The vigilance report was looked into by the learned Judge in the Court below as well as the entire records relating to the service of the writ petitioners. The vigilance enquiry was about actions by the writ petitioner which allegedly resulted in profit to contractors like Messrs. T. K. Chowdhury & Bros, and Messrs. Build India. It has been agreed before us that this T. K, Chowdhury & Bros, is in no way connected with the writ petitioner T. K. Chowdhury and the names appear to be only coincidentally identical.
7. The vigilance report also deals with the alleged improper release of security deposit by the writ petitioner to the contractors, as well as withholding of information by the writ petitioner from his senior officers. Whatever is stated in the vigilance report is unconfirmed since no allegation of dishonesty or impropriety against the writ petitioner can stand as proved without him being given an opportunity to clear himself of the charges. It is of the fundamental importance to observe that I am not pronouncing upon the truth, justification or otherwise of the allegations contained in the vigilance report.
8. On the other hand, the law does not permit a court to sit in appeal upon the materials leading up to an order for compulsory retirement. If such an order is not passed by way of a punishment then the order is good even if there has been the possibility of the beginning of a disciplinary enquiry. Indeed, in the case of even an enquiry actually held, the order of compulsory retirement might nonetheless be good if it was passed in a manner completely dissociated from the enquiry proceedings. The order, if so passed in a manner dissociated, would not, in law, contain any aspersion or stigma, and would be good even if it were passed without hearing the officer retired.
9. It would be a legal error, into which with respect, the learned Judge in the Court below has fallen, to try to assess the materials and allegations in the vigilance report, and to see whether the same can fairly be construed or utilised against the writ petitioner for forming the opinion that the writ petitioner was guilty. Nobody says that the writ petitioner was guilty. The order for compulsory retirement does not show that the writ petitioner was guilty. If it said so, a prior hearing would have to be given.
10. There was no obligation in law to forward a copy of the vigilance report to the writ petitioner-before taking the action of compulsory retirement, which, as we have seen, does not, of itself, entail in Indian Service law, any civil consequence. The rules of natural justice did not apply in the circumstances. The learned Judge in the court below appears also to have thought that the order for compulsory retirement could not be passed behind the back of the writ petitioner and that no action could be taken even in the background of the vigilance report without the same being forwarded to the writ petitioner. With respect, these are errors of law.
11. The order for compulsory retirement is no punishment. The ordinary retiral benefits accrue to a person who is compulsorily retired. If it were a punishment such retiral benefits would not so accrue. The only difference is that the retirement takes place in advance of the final possible date in the case of the person compulsory retired.
12. The above in my opinion is sufficient to dispose of the case, but considering today's trend in demanding fairness in every governmental action, it is perhaps as well to set down a few words justifying the fairness of the scheme of compulsory retirement.
13. When a person approaches the age of retirement two things happen. First, he gets older. Secondly, the time of retirement draws nearer. By reason of the first, his efficiency might be impaired. By reason of the second, he might be having certain thoughts which he would not have had if the retirement date were still far away. Under these circumstances it is possible for the senior person to fall below the requisite scale of manifest efficiency or manifest integrity. It may well be that such lapse or such imputation of lapse does not pragmatically call for a full fledged departmental enquiry. Though the law of hire and fire in governmental service is cast out by our Constitution, yet the principle of hire and fire indisputably tends to raise efficiency and working standards. This principle can be invoked under our present law for service holders who have crossed the age beyond which compulsory retirement is possible. One is retired without being given a bad name, and the service machine goes on, hopefully, functioning better, and the person sent out is so sent, even if with may be a grim face, yet surely not with any tears in his eyes.
14. The appeal therefore succeeds as the order for compulsory retirement appears to have been passed in the background of allegations of lack of integrity made against the writ petitioner which have not been attempted to be proved by he port authorities against the writ petitioner in any manner but which have been acted upon by keeping the same in the background The order for compulsory retirement is not arbitrary or mechanical or the product of any personal friction of which there is no allegation in the writ petition. The integrity columns in the annual confidential reports of the writ petitioner do not show that the vigilance report fell to be considered by the preparers of these reports. For 1986, the report signed on 17.1.87 read that there was nothing adverse against the petitioner. There was also apparently a list drawn up in February 1987 of possible promotees and the writ petitioner's name was included there. In November 1987 the vigilance report was forwarded and sent out by the vigilance department. The action taken in that background does not in any manner fix any guilt upon the writ petitioner, but on the other hand, the writ petitioner cannot challenge the same as being passed without any material or on materials upon which no reasonable man could conceivably pass an order for compulsory retirement.
15. The appeal therefore succeeds and the order under appeal is set aside. The writ petitioner shall be treated as being properly under compulsory retirement by virtue of the order dated 9th December 1987. The retiral benefits, if any payable on that basis, shall be released to the writ petitioner, within eight weeks hereof, after taking into account whatever has been realised by him either departmentally or on the basis of any interim orders of Court. No order as to costs either in the Court below or before us.