Meghalaya High Court
Shri Tikendar Singh vs The Union Of India And Ors on 22 July, 2015
Bench: Uma Nath Singh, T. Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WA No.12/2014
In WP(C) No.284/2012
EX-JC 133418 nb/Sub (GD),
Shri. Tikendra Singh,
S/o Shri. Uttam Singh,
R/o Sabora village ,
Thana: Khatima,
District: Udham Singh Nagar,
Uttarakhand. :::: Appellant
-Vs-
1. The Union of India represented by the Secretary,
Ministry of Home Affairs, Govt. of India, New Delhi.
2. The Director General Assam Rifles,
Laitkor, Shillong-793010.
3. The Brigadier (Pers),
H.Q. Directorate General Assam Rifles,
Laitkor, Shillong-793010, Meghalaya
4. The Record Officer,
H.Q. Directorate General Assam Rifles,
Laitkor, Shillong-793010, Meghalaya
5. The Commandant,
13th Assam Rifles,
C/O 99 APO :::: Respondents
BEFORE HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE T. NANDAKUMAR SINGH For the Appellant : Mr. R Jha, Adv For the Respondents : Mr. K. Paul, CGC Date of hearing : 09.07.2015 Date of Judgment & Order : 22.07.2015 Page 1 of 14 JUDGMENT AND ORDER (Justice T. Nandakumar Singh) This writ appeal is directed against the judgment and order of the learned Single Judge dated 02.12.2013 dismissing WP(C)No.284/2012 filed by the appellant/writ petitioner challenging the impugned order dated 27.03.2009 for compulsory retirement of the appellant/writ petitioner from service w.e.f. forenoon 01.07.2009.
2. Heard Mr. R Jha, learned counsel for the appellant/writ petitioner and Mr. K Paul, learned CGC appearing for the respondents.
3. The fact of the case sufficient for deciding the present writ appeal is briefly noted. The appellant/writ petitioner was enrolled as a recruit General Duty in Assam Rifles on 22.06.1979 and after completion of training at Assam Rifles Training Centre, he was posted to 13th Assam Rifles as his parent unit. On 26.01.1985, the appellant/writ petitioner was promoted to the post of Laince Naik/GD on the basis of good performance and thereafter on 10.11.1986, the appellant/writ petitioner was promoted to the rank of Naik/GD. On 01.12.1987, the appellant/writ petitioner was promoted to the post of Havildar/GD. The appellant/writ petitioner was further promoted to the post of Naib Subedar/GD on 13.07.2006. It is the further case of the appellant/writ petitioner that he successfully performed the duty of the Company Commander, ROP Duty, Insurgency Duty (I.S. Duty), Patrolling Duty, Platoon Commander Duty as well as any other duty which had been assigned to him being General Duty personnel by the respondent-authorities. It is also the further case of the appellant/writ petitioner that during the entire period of service, the appellant/writ petitioner successfully and diligently performed all type of tasks and duties conferred by the respondents and there was no adverse report against the appellant/writ petitioner in his service tenure. Moreover, in the year 2005, the appellant/writ petitioner was Page 2 of 14 awarded with DIGAR Awards. All of a sudden, the respondent No.4 issued an order dated 27.03.2009 giving notice upon the appellant/writ petitioner to retire from service on the afternoon of 01.07.2009. The impugned order dated 27.03.2009 for compulsory retirement of the appellant/writ petitioner from service was assailed by the appellant/writ petitioner by filing WP(C)No.284/2012. The main grounds for assailing the impugned compulsory retirement order dated 27.03.2009 were that:
(a) No show cause notice of discharge/compulsory retirement was served upon the appellant/writ petitioner in any point of time and the appellant/writ petitioner was compulsorily retired from service by the respondents at the very early age and as per the Central Service Rules any incumbent of the Assam Rifles is to continue to be in service till 60 years of age which the appellant/writ petitioner would have attended in the year 2021;
(b) The impugned order dated 27.03.2009 for compulsory retirement of the appellant/writ petitioner from service is highly illegal, arbitrary and bad in law;
(c) The power of the authority for compulsory retirement of the appellant/writ petitioner from service ought to have been exercised by the respondents not arbitrarily but only upon forming an opinion based on material, that too in public interest. There was nothing in the service record of the appellant/writ petitioner to show that any adverse entry was ever recorded therein;
(d) Any adverse entry in the service career of the appellant/writ petitioner regarding performance of his duties and general behaviour was not based on material upon which the respondent authorities could form an opinion that the service of the appellant/writ petitioner was liable to be dispensed with in public interest;
(e) The purpose of compulsorily retirement is to weed out deadwood, by compulsorily retiring the employee who is inefficient, corrupt and doubtful integrity. However, before compulsorily retiring Page 3 of 14 a Govt. employee from service, the appropriate authority must form a bonafide opinion that compulsory retirement of a Govt. employee is in public interest, otherwise it would amount to arbitrary or colorable exercise of power by the respondent authorities;
(f) The performance of a Govt. servant is reflected in the annual character roll entries and thereof, one of the methods of discerning the efficiency, honesty or integrity of a Govt. servant is to look at his character roll entries for the whole tenure from the inception to the date on which the decision of compulsory retirement is taken;
(g) The Govt. employees who were found to be ineffective will also be retired. The basic consideration in identifying such employees should be the fitness/competence of the employee to continue in the post which he is holding;
(h) When considering the entire service record of an employee at the time of review, no employee should ordinarily be retired on the ground of ineffectiveness if his service during the preceding that 5 years or where he has been promoted to a higher post during that 5 years period, his service in the higher post has been found satisfactory;
(i) In the impugned order dated 27.03.2009, no reason or ground taken by the Review Committee upon whose recommendations, the appellant/writ petitioner was directed to retire compulsory was mentioned;
(j) There is nothing on record to show that the appellant/writ petitioner while serving any warning letter or memo was issued to the appellant/writ petitioner to improve his conduct;
(k) The appellant/writ petitioner has the substantive right to continue in service till he attains the age of 60 years and such right of the appellant/writ petitioner cannot be curtailed or defeated by the respondents by issuing the impugned order dated 27.03.2009 for compulsory retirement from service.Page 4 of 14
4. The respondents had filed affidavit-in-opposition wherein, it is stated that as per Rule 48 and Appendix-5 of CCS (Pension) Rules, 1972, the service of the personnel of Assam Rifles is required to be reviewed for further retention on attaining 55 years of age or on completion of 30 years of service. Accordingly, the Service Review Board in respect of all affected JCOs of Assam Rifles including the appellant/writ petitioner carried out service reviews duly and finding of the Board was finally approved by the DGAR vide letter No.I.31019/Rev/AR/2009/Adm-III/254 dated 24.03.2009. It is also stated that the case of the appellant/writ petitioner was examined in detail as per his service report vis-à-vis the opinion of the Commandant 13th Assam Rifles/Higher Formation Commanders in chain in the light of provisions contained at Appendix- 5 to the CCS (Pension) Rules, 1972 and the Fundamental Rules and it was revealed that the appellant/writ petitioner was a habitual offender of intoxication and was awarded punishment of severe reprimand thrice on 15.12.1997, 19.01.1998 and 30.06.2000 due to intoxication. The appellant/writ petitioner was verbally as well as in writing several times asked to improve his discipline. However, the appellant/writ petitioner had failed to improve his conduct in spite of repeated counseling from the authority. The officers under whom the appellant/writ petitioner was physically serving had brought out that he continued to be drunkard and had not improved his conduct in spite of repeated counseling. Thus, he does not have the efficiency and capacity to perform his duties as a combatant. As such, he was not recommended for further retention beyond 30 years by the Board of Officers. It is also stated in the affidavit-in-opposition that the appellant/writ petitioner being a General Duty cadre was expected to be disciplined and physically robust and ready to move on operational duties round the clock as and when situation arises. But an intoxicated person like the appellant/writ petitioner cannot be expected to be fit for operational tasks all the times and hence, he was nothing but a liability to the force and not an asset. The appellant/writ petitioner was a habitual drunkard for which he had been awarded Page 5 of 14 punishment of "Severe Reprimand" three times due to consumption of liquor during service period. In the affidavit-in-opposition copies of the reports of the officers against the appellant/writ petitioner regarding imposition of punishment of "Severe Reprimand" are annexed and marked as Annexure R/I, R/II and R/III respectively.
5. The Affidavit-in-opposition further revealed that in spite of warning letters dated 31.10.2007 and 09.02.2008, the appellant/writ petitioner failed to improve his discipline and also the annual confidential reports (ACR) for the year 2007 and 2008 of the appellant/writ petitioner show that the appellant/writ petitioner is a habitual drinker, who had failed to improve his character. The copies of the ACRs of the appellant/writ petitioner are also annexed and marked as Annexure-R/VII and R/VIII respectively. It is also stated in the affidavit-in- opposition that after overall consideration of the entire service record of the appellant/writ petitioner, the appellant/writ petitioner was found to be ineffective and ineligible for further retention in service. Para 24 of the affidavit-in-opposition read as follows:-
"24. That the statements made in Para 8, the answering respondents have no comments to offer being the prayer of the petitioner and the same have adequately been commented upon in the preceding paragraphs. However, it is submitted that the case of the petitioner was examined by the competent authority in detail as per his service record viz a viz the opinion of Commandant 13th AR/Higher Formation Commanders in chain and in the light of provision contained at Appx-5 to CCS (Pension) Rule 1972 and Fundamental Rules wherein it was revealed that the petitioner was a habitual offender of intoxication and was awarded punishment of Severe Reprimand thrice under Army Act Sec 48 on 15 Dec 1997, 19 Jan 1998 and 30 Jun 2000 due to intoxication. The petitioner was verbally asked as well as in writing several times to improve his discipline. However, the petitioner failed to improve his conduct in spite of repeated counseling from the authority. Resulting Commandant 13 AR and Higher Formation Commanders in chain opined that his further retention in service was not in organizational and public interest. Hence, considering entire circumstances of the case, the service review committee did not recommend his further retention in service beyond 30 years of service. As a result the petitioner was compulsorily retired from service with effect from 01 Page 6 of 14 Jul 2009 vide DGAR Order No.Rec/(Adm-III)Review/09/256 dt. 27 Mar 2009. As such instant writ petition does not merit any consideration and same is liable to be dismissed."
6. The Apex Court (Three Judges) in Baikuntha Nath Das & Anr v. Chief District Medical Officer, Baripada & Anr: (1992) 2 SCC 299 held that an order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. Principles of natural justice have no place in the context of an order of compulsory retirement. Since 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 audi alteram partem rule of the natural justice in such a case. Paras 34 and 35 of the SCC in Baikuntha Nath Das's case (Supra) read as follows:-
"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.
(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 Page 7 of 14 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.
35. 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 adumbrated in Maneka Gandhi v. Union of India: (1978) 1 SCC 248 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."
7. The ratio laid down in Baikuntha Nath Das's case (Supra) was followed by the Apex Court (Three Judges) in Posts and Telegraphs Board & Ors v. C.S.N. Murthy: (1992) 2 SCC 317. Para 3 of the SCC in case Posts and Telegraphs Board case (Supra) reads as follows:-
"3.The modalities for the invocation of F.R. 56(j) have been examined by a number of decisions of this Court. All these judgments have been reviewed and the legal principles applicable thereto have been summarised by B.P. Jeevan Reddy J., speaking for the Supreme Court, in Baikuntha Nath Das v. Chief District Medical Officer, Baripada: (1992) 2 SCC 299: JT (1992) 2 SC 1. These principles have been set out in paragraph 32 of the judgment, which can be extracted here for purposes of convenient reference: (SCC p.315, para 34)
34. The following principles emerge from the above discussion:Page 8 of 14
(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 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 interfereence.
Interference is permissible only on the grounds mentioned in
(iii) above. This aspect has been discussed in paras 30 to 32 above."
8. The Apex Court (Three Judges) in Union of India v. V.P. Seth & Anr: AIR 1994 SC 1261 held that uncommunicated adverse remarks in the record can be considered while passing order of compulsory retirement. The rule of audi altram partem is not applicable since order of compulsory retirement is not penal in nature. The ratio laid down in Baikuntha Nath Das's case (Supra) was also followed by the Apex Court in V.P. Seth's case (Supra). Page 9 of 14
9. The Apex Court (Three Judges) in State of Orissa & Ors v. Ram Chandra Das: (1996) 5 SCC 331 held that:
"7. ...... As stated earlier, it is settled law that the Government is required to consider the entire record of service. 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 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. It is also made clear that in this case adverse entries were made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits."
10. The Apex Court (Three Judges) in State of Punjab v. Gurdas Singh: (1998) 4 SCC 92 held that adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well. Para 11 of the SCC in Gurdas Singh's case (Supra) reads as follows:-
"11. The facts in the present case are quite similar to that in Union of India vs. V.P. Seth: 1994 SCC (L&S) 1052: (1994) 27 ATC 851: AIR 1994 SC 1261. Here also the only ground on which the order prematurely retiring Gurdas Singh was set aside was that two adverse entries after his promotion from the rank of Assistant Sub- Inspector to sub-Inspector were not communicated to him and earlier adverse entries could not be taken into account because even when those existed Gurdas Singh had earned his promotion. It is not necessary for us to again reiterate the principles where the Court will interfere in the order of premature retirement of an employee as these have been accurately set down by various pronouncements of this Court and particularly in Baikuntha Nath Das case: (1992) 2 SCC 299: 1993 SCC (L&S) 521: (1992) 21 ATC 649. Before the decision to retire a Government servant Page 10 of 14 prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.
11. The Apex Court in Rajasthan State Road Transport Corporation & Ors v. Babu Lal Jangir: (2013) 10 SCC 551 further reiterated that for the purpose of considering compulsory retirement it is permissible for the employer to take into consideration the adverse entries which were either not communicated to the employee concerned or if communicated, representations made against those entries were still pending. Paras 20, 21, 22 & 23 of the SCC in Babu Lal Jangir's case (Supra) read as follows:-
20. This interpretation given in Badrinath case: Badrinath v. State of T.N.: (2000) 8 SCC 395: 2001 SCC (L&S) 13, which was the judgment rendered by two member Bench, has not been accepted by three member bench of this Court, subsequently, in Pyare Mohan Lal v. State of Jharkhand: (2010) 10 SCC 693: (2011) 1 SCC (L&S) 550. After discussing various judgments, including the judgments referred to by us hitherto, the Court clarified and spelled out the circumstances in which the earlier adverse entries/ record would be wiped off and the circumstances in which the said record, even of remote past would not lose its significance. It is lucidly conceptualized under the head "Washed Off Theory" as follows: (Pyare Mohan Lal v. State of Jharkhand: (2010) 10 SCC 693: (2011) 1 SCC (L&S) 550, SCC pp. 702-04, paras 19-22) "Washed-off theory "19. In State of Punjab v. Dewan Chuni Lal: (1970) 1 SCC 479: AIR 1970 SC 2086 a two-Judge Bench of this Court held that adverse entries regarding the dishonesty and inefficiency of 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 v. State of Orissa: (1989) 4 SCC 664: 1990 SCC (L&S) 38: (1989) 11 ATC 886: AIR 1989 SC 2218, had taken a similar view on the issue observing that adverse Page 11 of 14 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: Baikuntha Nath Das v. District Medical Officer:
(1992) 2 SCC 299: 1993 SCC (L&S) 521: (1992) 21 ATC 649
21. However, a three-Judge Bench of this Court in State of Orissa v. Ram Chandra Das: (1996) 5 SCC 331: 1996 SCC (L&S) 1169: AIR 1996 SC 2436, 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 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.' This judgment has been approved and followed by this Court in State of Gujarat v. Umedbhai M. Patel: (2001) 3 SCC 314: 2001 SCC (L&S) 576: AIR 2001 SC 1109, emphasising that the 'entire record' of the government servant is to be examined.
22. In Vijay Kumar Jain: State of U.P. v. Vijay Kumar Jain:
(2002) 3 SCC 641: 2002 SCC (L&S) 455, 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.Page 12 of 14
There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the government servant."
(emphasis in original)
21. Stating that the judgment of the larger Bench would be binding, the washed off theory is summed up by the Court in the following manner: (Pyare Mohan Lal v. State of Jharkhand: (2010) 10 SCC 693: (2011) 1 SCC (L&S) 550, SCC pp. 704-05, para 24) "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'.
22. It clearly follows from the above that the clarification given by two Judge Bench judgment in Badrinath: Badrinath v. State of T.N.: (2000) 8 SCC 395: 2001 SCC (L&S) 13 is not correct and the observations of this Court in Gurdas Singh: (1998) 4 SCC 92:
1998 SCC (L&S) 1004 to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement.
23. The principle of law which is clarified and stands crystallized after the judgment in: Pyare Mohan Lal v. State of Jharkhand:
2010 (10) SCC 693: (2011) 1 SCC (L&S) 550 is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this 'washed off theory' will have no application when the case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration the earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant."Page 13 of 14
12. For the foregoing discussions, it is clear that for the purpose of considering compulsory retirement of an employee it is permissible for the employer to take into consideration the adverse entries which were not communicated to the employee and that the rule of audi alteram partem is not applicable in passing the order for compulsory retirement since the order of compulsory retirement is not penal in nature and implied no stigma and that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of an employee during his tenure of his service whether it is in public interest to retain in service. We have given our anxious consideration to the case of the appellant/writ petitioner in the writ petition vis-à-vis the affidavit-in-
opposition filed by the respondents keeping in view of the ratio laid down by the Apex Court in the cases discussed above; and we are of the considered view that no material had been made out for interfering the judgment and order of the learned Single Judge dated 02.12.2013.
13. In the result, the appeal is devoid of merit and hence the appeal is dismissed.
JUDGE CHIEF JUSTICE
Lam
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