Madhya Pradesh High Court
Ajit Narayan vs Union Of India on 27 August, 2010
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 97 of 2007(S)
Ajit Narayan
- V/s -
Union of India and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Petitioner Shri Ajit Narayan in person.
Shri Vikram Singh for respondent No.1.
Shri R.N. Singh, Senior Advocate, with Shri
Arpan Pawar for respondent No.2.
Shri Brian D'Silva, Senior Advocate, with
Ms. Kanak Gaharwar for respondent No.3.
Shri R.G. Mahajan for respondent No.4.
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Whether approved for reporting: Yes / No.
ORDER
/08/2010 Challenging the order-dated 28.9.2007 - Annexure P/31, compulsorily retiring the petitioner, petitioner has filed this writ petition. 2- It is the case of the petitioner that in pursuance to a selection conducted by a duly appointed selection committee, petitioner was appointed as a Registrar in respondent No.2's institute on 22.12.90. He had been performing his duties sincerely, honestly and with dedication, when all of a sudden he has been compulsorily retired by the impugned order. It is the case of the petitioner that he is a Group A officer and the establishment of respondent No.2 was initially registered as a Society under the Societies Registration Act, 1860. It was earlier known as Maulana Azad College of Technology and was a Regional Engineering College functioning under the joint supervision of the 2 Central Government and the State Government. Subsequently, in the year 2002, it was declared as a National Institute of Technology and was renamed as Maulana Azad National Institute of Technology Society, Bhopal. Memorandum of Association and documents evidencing incorporation of the Society are Annexure P/1. It is further stated that the University Grants Commission (hereinafter referred to as 'UGC') exercising powers conferred by Section 3 of the University Grants Commission Act, 1956 has issued a Notification - Annexure P/2, on 26.6.2002, granting the status of deemed university to respondent No.2 and circulars in this regard have been issued vide Annexure P/3 on 29.6.2002. According to the petitioner, the service conditions of the employee after the change made in the set up of respondent's establishment, as indicated hereinabove, continued to remain the same till resultant changes were made by the Central Government. It is the case of the respondent that in the Institute in question the non-teaching staff retire in accordance to the Circular - Annexure P/10 dated 12.11.2003 and as the provisions of Fundamental Rule 56 (j) [hereinafter referred to as 'FR 56 (j)'], applicable to the central government employees are not applicable, it is stated that compulsory retirement of the petitioner under the aforesaid rule is illegal. 3- By bringing on record various documents and circulars in this regard, petitioner has tried to demonstrate before this Court that he has an unblemished career, but ever since there has been change in the set up of the Institute in question, petitioner was being harassed and somehow or the other respondents were trying to device means to remove the petitioner from the post. Initially, petitioner's services were tried to be terminated, but on a petition filed by the petitioner before this Court in the light of the order passed on 20.7.94, in M.P.No.2726/1993, petitioner was reinstated and thereafter, again the respondents were somehow trying to device methods to remove the petitioner from service. It is stated that with a design to remove the petitioner from the post in question, provisions of FR 56 (j) has been applied and the petitioner compulsorily retired. Apart from contending that the 3 provisions of FR 56 (j) are not applicable to the respondent's institute, the petitioner, who has appeared in person, has taken me through the various documents filed by him as Annexure P/1 to P/31 and by referring to the procedure followed for removing the petitioner from service, it is emphasized by him that action is taken on the basis of an enquiry conducted behind the back of the petitioner and on the basis of an enquiry report submitted vide Annexure P/24, with regard to his appointment and entitlement to continue in service. It is argued by the petitioner that in the enquiry conducted, petitioner was not noticed, he was not heard, behind his back evidences were collected and based on the enquiry report the Board of Directors took a decision to compulsorily retire the petitioner. Referring to the decision of the Board of directors dated 5.12.2005, available on record as Annexure R-2/8, and the subsequent decision again taken by the Board ratifying the earlier decision dated 5.12.2005, on 29.10.2006, and the impugned action taken thereof, petitioner submitted that the Board of Directors have taken action only on the basis of the enquiry report without assessing the overall service record of the petitioner. It is the case of the petitioner that in the present case compulsory retirement of the petitioner is nothing but an act for punishing the petitioner, without holding a proper enquiry, in violation of the principles of natural justice and, therefore, the same is unsustainable. By taking me through the documents filed, the representation submitted and the other material available on record petitioner tried to emphasize that the respondents have acted in a biased and malafide manner and only to harass and victimize the petitioner the impugned action is taken. It was argued by him that respondents have in total disregard to the principles governing compulsory retirement, to weed out dead wood, have acted in a manner which is impermissible under law and, therefore, he prays for interference into the matter. 4- Shri R.N. Singh, learned Senior Advocate for Institute/respondent No.2, supported the order passed by the Institute and pointed out that petitioner is a Group-A employee, as is evident from the Staffing Pattern - Annexure P/6 and as the Fundamental Rules have 4 been adopted by the Institute, it is argued by Shri R.N. Singh, learned Senior Advocate, that the provisions of FR 56 (j) would apply to all Group A and Group B employees and the action taken by the Institute for compulsorily retiring the petitioner under FR 56 (j) is said to be proper. Referring to the Notifications available on record filed by the petitioner as Annexures P/8, P/9, P/10 and P/11 and the decision of the Board of Directors Shri R.N. Singh, learned Senior Advocate, tried to emphasize that the contention of the petitioner that FR 56 (j) does not apply is wholly misconceived.
5- Shri R.N. Singh, learned Senior Advocate, further pointed out that appointment of the petitioner was found to be contrary to the rules, it was made on a post reserved for a scheduled caste candidate and even though petitioner was below the age required for appointment to the post, in an illegal and arbitrary manner undue benefit was conferred on the petitioner and he was appointed illegally. When complaints in this regard were received in the year 2001, an enquiry was constituted and in the enquiry the report indicated that petitioner's appointment itself in the department was illegal. Referring to the enquiry report - Annexure P/4 and the findings recorded therein, learned Senior Counsel emphasized that petitioner's appointment itself being illegal action taken by the respondents are proper. Thereafter, taking me through the service records of the petitioner and the performance appraisal for the years 2003-04, 2005-06 and 2006-07, filed collectively as Annexure R-2/10 to R-2/12, and available from page 40 to page 63 of the return filed by the respondents, Shri R.N. Singh emphasized that the entire service record of the petitioner was bad, his performance was always poor and below standard and, therefore, assessing the overall performance the Board of Directors took a decision to compulsorily retire the petitioner and accordingly the action is taken. Referring to the decision of the Board of Directors on 5.12.2005 vide Annexure R-2/8 and ratified vide Annexure R-2/9 on 29.10.2006, learned Senior Advocate submitted that as petitioner is compulsorily retired, considering his overall performance and suitability to the department, the action taken does not warrant any 5 interference. Placing reliance on the following judgments namely; Bishwanath Prasad Singh Vs. State of Bihar and others, (2001) 2 SCC 305; State of Gujarat Vs. Umed Bhai M. Patel, (2001) 3 SCC 314; Jugal Chandra Saikia Vs. State of Assam and Another, (2003) 4 SCC 59; and, finally a judgment of the Supreme Court in the case of R. Vishwanatha Pillai Vs. State of Kerala and others, (2004) 2 SCC 105, Shri R.N. Singh, learned Senior Advocate, argues that in the present case petitioner is only compulsorily retired after considering his overall service performance, the same does not amount to punishment and, therefore, interference into the matter is not warranted. Accordingly, learned Senior Advocate submitted that there is no merit in the claim made by the petitioner and, therefore, the petition be dismissed. 6- Shri Vikram Singh, learned counsel appearing for respondent No.1, apart from adopting the arguments advanced by Shri R.N. Singh, learned Senior Advocate, points out that the institute in question is managed by Central Government and after it became a National Institute of Technology, the service conditions at par with the same applicable to the Indian Institute of Technology, New Delhi has been made applicable. Taking me through the averments made by respondent No.1 in paragraphs 10 and 11 of the reply, and the documents available on record, it is argued by Shri Vikram Singh that vide notification - R-1/2 dated 9.11.2003, the rules and regulations applicable to Indian Institute of Technology, New Delhi has been adopted and as the provisions of FR 56 (j) is applicable to the Indian Institute of Technology, New Delhi the same governs the service conditions of the petitioner also. By referring to the rules applicable to the Indian Institute of Technology, New Delhi - Annexure R-1/4, Shri Vikram Singh submitted that petitioner's case is governed by the provisions of FR 56 (j) and in applying the same respondents have not committed any error. That apart, inviting my attention to the statutory rules now framed in the matter of prescribing the service conditions for Registrars of the National Institute of Technology i.e...The National Institute of Technology [NITs] Registrars Recruitment Rules 2008, Shri 6 Vikram Singh submits that the rules applicable to Group A employees of the Central Government are also applicable to the Registrars and, therefore, the respondents have not committed any error in taking action under the said rules. That apart, taking me through the enquiry report - Annexure P/24 separately filed by respondent No.1; the appraisal reports of the petitioner for the years 2004-04, 2004-05 and 2005-06, Shri Vikram Singh emphasized that compulsory retirement is not a punishment and as action is taken by the Board of Directors after evaluating the service rendered, no case is made out for interference. Placing reliance on various judgments to show that compulsory retirement is not a punishment and for compulsorily retiring an employee, the principles of nature justice are not applicable, Shri Vikram Singh tried to justify the action of the respondents. 7- Shri Brian D'Silva, learned Senior Advocate appearing for respondent No.3, argued on the same lines as was done by Shri R.N. Singh and further submitted that as petitioner is proceeded against and action is taken for compulsorily retiring him, no case is made out for interference.
8- Shri Mahajan, learned counsel appearing for respondent No.4, adopted the arguments canvassed by learned counsel for respondents 1 to 3, and sought for dismissal of this writ petition. 9- Having heard learned counsel for the parties at length and on consideration of the totality of the facts and circumstances, this Court is of the considered view that following two questions arise for consideration in this writ petition:
The first question would be as to whether the provisions of FR 56 (j) applies; and, the second question would be as to whether the order of compulsory retirement passed meets the legal parameters required and is in accordance to law? 10- As far as the first question is concerned, it is clear that initially the Institute of respondent No.2 was a registered society, but it became a National Institute of Technology by virtue of the Notification issued by the Central Government and subsequently it became a deemed 7 university. It is also an admitted position that the institute is fully owned and governed by the State Government and functions in accordance to the circulars and policies laid down by the Ministry of Human Resources and Development, Government of India. It is also an admitted position that the Institute has been granted the status of National University by UGC. Documents available on record are sufficient to hold so. As far as applicability of the service rules are concerned, after conversion of the Maulana Azad National Institute, Bhopal as National Institute of Technology, Government of India and the Ministry of Human Resources and Development issued the circular - Annexure P/4 on 26.6.02, and indicated in the said circular in paragraph 3 that every person employed in the Maulana Azad College of Technology, Bhopal immediately before conversion shall hold office or service in the National Institute of Technology, Bhopal at the same remuneration and upon the same terms and conditions, with the same rights and privileges and the change, if any, to be brought in the light of the new memorandum of association, shall be referred to the Central Government for decision on case to case basis. The faculty and staff pattern of the Institute as is evident from Annexure P/6, filed by the petitioner, clearly indicates that the post of Registrar is a Group A post and petitioner admits to the same in the writ petition.
11- In the office memorandum and notifications - Annexures P/7 and P/8, Government of India has laid down rules and regulations governing service conditions of employees of the National Institute of Technology. A perusal of Annexure P/8 indicates that for the purpose of conduct and discipline rules, leave rules, period of probation, recruitment, the rules governing the same and applicable in the Institute of Technology, New Delhi is made applicable. Similarly various other rules have been adopted. The Institute also issued a circular - Annexure P/9 on 8.4.2004, laying down the service condition of employees of the Institute and it is stated that in the matter of retirement and superannuation, the circular Annexure P/10 dated 12.11.2003 would be applicable. Petitioner wants this Court to hold that in the light of the 8 circulars - Annexures P/9 and P/10, screening of an employee for compulsory retirement can be done only beyond the age of 58 years and as petitioner has not reached the age of 58 years, he cannot be compulsorily retired and, therefore, it is stated that FR 56 (j) does not apply.
12- As far as Annexure P/10 is concerned, it speaks about retirement on superannuation. The circular - Annexure P/10 dated 12.11.2003, is a memorandum issued by the Government of India in the Ministry of Human Resources and Development with regard to extension of service of the employees after 58 years. The said circular is being misconstrued by the petitioner. This circular does not contemplate a provision akin to FR 56 (j), for compulsorily retiring an employee. On the contrary, this circular relates to screening of an employee to find out his suitability of continuing in service after he has completed 58 years of age upto the age of 60. If the aforesaid circular is perused, it would be seen that this circular only speaks about extension of service beyond the age of 58 years and does not speak about compulsory retirement of an employee. FR 56 (j), on the other hand reads as under:
"FR 56 (j): Notwithstanding anything contained in this rule, the appropriate authority shall, 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 or 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, quasi-permanent of temporary capacity 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."
and, contemplates a provision for retiring an employee compulsorily on public interest. That being so, contention of the 9 petitioner that the circular - Annexure P/10 contemplates compulsory retirement only after 58 years is not correct. On the contrary, if the circular - Annexure P/11 dated 21.7.2004 clarifying circular - Annexure P/10 dated 12.11.2003 is seen, it would be clear that even for the purpose of screening of an employee after crossing the age of 58 years, for the purposes of superannuation after crossing the age of 58 years, the principle akin to FR 56 (j) is held to be applicable. It is, therefore, clear that the scope of FR 56 (j) and the circular - Annexure P/10 are entirely different.
13- Accordingly, I am of the considered view that the contention of the petitioner to the effect that compulsory retirement in the respondents' institute is governed by the Circular Annexure P/10, dated 12.11.2003 is not correct. The said circular pertains to screening of the employees, for the purposes of their continuation in service beyond the age of 58 years (i.e... the age of superannuation) and does not, in any manner whatsoever, prescribe procedure for compulsory retirement of a person.
14- In this regard, if the principle laid down by the Supreme Court in the case of Bishwanath Prasad Singh (supra), relied upon by Shri R.N. Singh, learned Senior Advocate, is taken note of, it would be seen that in that case also after taking note of the judgment and directions of the Supreme Court in the case of All India Judges' Association case, 1993(4) SCC 288. The distinction between compulsory retirement and continuation of an employee beyond the age of 58 years is taken note of and the distinction pointed out. The same position is applicable in the present scenario also. 15- As far as applicability of FR 56 (j) is concerned, the Notifications and the circulars issued by the Central Government vide Annexures P/8 and P/9 clearly establishes that the service conditions of the employees of the National Institute of Technology are based on the service conditions of the employees working in the Central Government and for the purpose of leave rules, conduct and disciplinary appeal rules etc, the rules applicable to Indian Institute of Technology, New Delhi 10 has been made applicable. The rules applicable to Indian Institute of Technology, New Delhi filed by Government of India alongwith their return - Annexure R-1/4 clearly indicates that the provisions of the Fundamental Rules and Supplementary Rules are applicable and, therefore, if the totality of the circumstances is evaluated, it has to be held that FR 56 (j) is adopted by the respondents and is made applicable to the Institute in question. That apart, the statutory rules now framed i.e.... The National Institute of Technology [NITs] Registrars Recruitment Rules, also makes applicable the rules of the Central Government, particularly the Fundamental Rules, to employees of the Institute, particularly the Registrars and, therefore, the first ground of challenge made by the petitioner is devoid of substance and cannot be accepted. The same is accordingly rejected.
16- As far as the second ground is concerned, if the facts of the present case are scrutinized, it would be seen that petitioner was appointed on 22.12.1990. It seems that certain complaints were received against him and, therefore, after instructions from the State Government, an enquiry was ordered into the facts leading to appointment of the petitioner. The complaints were particularly with regard to the educational qualification of the petitioner, his entitlement to be appointed on the post of Registrar, reservation to the post of Registrar etc. The enquiry report is available on record. It is filed by the petitioner as Annexure P/24 and by respondent No.2 as Annexure R-2/5. A perusal of this report indicates that the enquiry was ordered on the basis of certain complaints received by the State Government with regard to appointment of the petitioner by Scheduled Caste and Scheduled Tribe Persons Association. The points of enquiry are with regard to qualification of the petitioner, his entitlement to be appointed to the post of Registrar and the fact of Reservation Policy being violated in the appointment. The report of the enquiry officer indicates that the enquiry officer visited the office of the Institute and took the statements of Dr. M.C. Soni, Principal, MACT, Bhopal; Shri R.K. Baghel, Liaison Officer, Scheduled Caste and Scheduled Tribe; and Shri Manoj 11 Shrivastava, Assistant Registrar (Establishment), scrutinized certain records and gave a finding holding that the petitioner was appointed contrary to the provisions of law. It is the case of the petitioner that in this enquiry he was never heard, he was not permitted to participate and the report was given on the basis of material collected behind his back. The said assertion of the petitioner seems to be correct as in the inquiry report there is no mention with regard to hearing of the petitioner or recording of his defence. Even in their reply, none of the respondents contend that petitioner was heard in the enquiry and the report is submitted after hearing him. That being so, it has to be held that the enquiry in question and the report submitted as contained in Annexure P/25 and Annexure R-2/5, is based on an enquiry conducted exparte, behind the back of the petitioner and without granting him any opportunity of hearing. On the basis of the enquiry report, the Principal of the Institute placed the matter for consideration and the Board of Directors considered the enquiry report against the petitioner and in its meeting held on 5.12.2005 - Annexure R-2/8, decided to compulsorily retire the petitioner in the light of the enquiry report received against him. The agenda of the meeting and the decision approved by the Board of Directors reads as under:
"Item BG-2005-2/14 - ENQUIRY REPORT AGAINST THE REGISTRAR SHRI AJIT NARAYAN AND PROPOSAL FOR HIS COMPULSORY RETIREMENT-
The Board has considered the proposal to retire Shri Ajit Narayan, Registrar from the Institute service as he has completed sufficient/required service/age for compulsory retirement.
'-ppvd'
'Approved'
CHAIRMAN MEMBER SECRETARY."
12
Even though this Resolution was passed on 5.12.2005, nothing was done for about 8-9 months and again in a Board Meeting held on 29.10.2006, vide Annexure R-2/9, the Resolution dated 5.12.2005 was approved and thereafter the impugned action taken. If the proceedings of the meeting of the Board of Directors held on 5.12.2005 and 29.10.2006 are scanned, it would be seen that the decision to compulsorily retire the petitioner is taken on the basis of the enquiry report and there is no scrutiny of the service record of the petitioner to find out as to whether he is a dead wood and, therefore, liable to be compulsorily retired under FR 56 (j).
17- At this point of time, it would be appropriate to consider the law governing compulsory retirement. Apart from the four judgments relied upon by Shri R.N. Singh, the principles governing compulsory retirement have been laid down in the case of Baldev Raj, Ex- Constable Vs. State of Punjab, AIR 1984 SC 984; State of UP and others Vs. Vijay Kumar Jain, 2002(3) SCC 641; and, by a Division Bench of this Court in the case of State of MP and another Vs. Noor Jama Khan and another, 2002(3) MPLJ 147. All these judgments have been considered by this Court recently in the case of Yogiraj Sharma (DR) Vs. State of MP, ILR (2009) MP 959 and after taking note of all the judgments referred to hereinabove so also the judgment of the Supreme Court, in the case of Umed Bhai M. Patel (supra) relied upon by Shri R.N. Singh, the matter has been dealt with by a Bench of this Court in the case of Yogiraj Sharma (supra) in paragraphs 9 onwards:
"9- Having heard learned counsel for the parties at length and on consideration of the facts that have come on record, this Court deems it appropriate to evaluate at the very outset the principles laid down by the Supreme Court in the matter of compulsorily retiring an employee on the grounds of public interest. It is the application of this principle in the facts and circumstances of the present case, which is required to be done for adjudication of the present petition.13
10- Normally an employee is retired compulsorily in public interest earlier to his normal age of superannuation after he has put in a specified period of service as contemplated under the Rules. In the present case, Rule 42(1)(b) empowers the State Government to proceed in the matter in public interest if the employee concerned has completed 20 years of qualifying service or has attained the age of 50 years, whichever is earlier. In such a case action can be taken by the appointing authority after approval by the State Government. On a close scrutiny of the various judgments available on the subject in question, it would be seen that the Courts have taken a general view that for compulsorily retiring an employee grant of opportunity of hearing is not necessary. Challenge to an order of compulsory retirement on the ground of violation of the principles of natural justice is not normally available. The aforesaid view is based on the principle that compulsory retirement in public interest does not amount to dismissal, it is neither a punishment nor any stigma is attached to such an action and, therefore, the effected employee need not be heard. The aforesaid principle would be clear on a complete reading of the law laid down by the Supreme Court, in the case of Baikuntha Nath Das (supra).
11- Justification or otherwise of an order of compulsory retirement is done on the basis of requirement of public interest. In the case of Baldev Raj, Ex-constable Vs. State of Punjab, AIR 1984 SC 984, when it was submitted before the Supreme Court that a police officer has been proceeded against and action is taken against him in public interest. It has been observed by the Supreme Court that public interest is an "unruly horse" and once it is alleged that the impugned action is a device to circumvent some decision of the Court or some statutory provision, then it is obligatory for the State to explain as to how the public interest is involved and what is the impending danger in keeping the person in service. It is clear from a reading of the judgment of the Supreme Court in various cases that the principle idea underlying compulsory retirement or pre- mature retirement is to weed out inefficient employees and deadwood from the department. Action taken in this regard, if not properly structured, is open to abuse. In a series of cases over a period of time Supreme Court and various other Courts have interfered with administrative discretions exercised in the area of compulsory retirement on the ground of abuse of power, taking note of irrelevant consideration or non-application of mind. In the case of Baldev Raj (supra), after taking note of the provisions of Rule 56(j) of the fundamental rules, which is para materia 14 with Rule 42 of the Rules of 1966, the Supreme Court and particularly Justice V. Krishna Iyer, for the Bench, has observed that while taking action for compulsory retirement, the appropriate authority must form the requisite opinion, not subjective suggestions, but objective and bonafide based on relevant material and the opinion should indicate that retirement of the employee is in public interest and not on personal, political or other interest. It is held by the learned Judge that the right to retire under this provision is not absolute, naked and arbitrary exercise of power is said to be bad in law and in the guise of public interest unlimited discretion to prematurely retire an employee cannot be granted. It is held that the action should not be unreasonable, arbitrary and amounting to disguised dismissal. It is held in the aforesaid case that whenever an order of retirement is challenged, the State must disclose the material so that the Court can analyse the material and from the material produced come to a conclusion as to whether a reasonable man, reasonably instructed in law, would take action in public interest justifying forced retirement of an employee.
12- At this stage it would be relevant to consider the case of Umed Bhai M. Patel (supra), relied upon by Smt. Shobha Menon, learned Senior Advocate. In the aforesaid case, reliance has been placed on various earlier judgments on the subject, including the case of Baikuntha Nath Das (supra), and the facts of the said case indicates that the employee concerned was an Executive Engineer working in the Narmada Development Department of the State of Gujarat. Pending departmental enquiry into allegations of misuse of power in the matter of purchasing tarpaulin, he was suspended on 22.5.86. Departmental proceedings were initiated against him, a charge sheet was issued, but before enquiry into the charge sheet could be completed he was compulsorily retired from service. The facts in the case of Umed Bhai M. Patel (supra) is similar to the present case. After evaluating the judgments and the principles laid down in the case of Baikuntha Nath Das (supra), pertaining to the law governing action to be taken for compulsory retirement, it was held by the Supreme Court that the order of compulsory retirement was based on extraneous reasons and the action was taken which was mainly based on the allegations, which formed part of the charge sheet on which the enquiry was pending and without waiting for conclusion of the enquiry, decision taken on the basis of allegations, which were not proved and in the absence of the entire service record being not adverse, compulsory retirement was quashed. If the case of the 15 petitioner is evaluated in the backdrop of the principles laid down and the facts in the case of Umed Bhai M. Patel (supra), it would be seen that the present case is somewhat similar to or rather identical to the one which has been decided by the Supreme Court.
13- In the case of Umed Bhai M. Patel (supra), reference has been made to the principle laid down in the case of State of Orissa Vs. Ram Chandra Das, 1996(5) SCC 331, and emphasis is placed on the fact that while compulsorily retiring an employee from service, the department should consider the entire record of service of the government servant, including the last reports.
14- Same principles are laid down by the Supreme Court in the case of State of UP and others Vs. Vijay Kumar Jain, 2002(3) SCC 641. In the case of Vijay Kumar Jain (supra), the Supreme Court has so considered the matter in paragraphs 10,11,13 and 14:
"10. Before we advert to the question which we are required to decide, it is necessary to notice the nature of an order of compulsorily retiring a government servant under FR 56 (c). In Shyam Lal v. State of U.P., (1955) 1 SCR 26, it was held that an order of compulsory retirement is neither a punishment nor any stigma attached to it and it was held therein as thus:
"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. In other words, a compulsory 16 retirement has no stigma or implication of misbehaviour or incapacity."
11. In Union of India v. Col. J.N. Sinha, (1971) 1 SCR 791, it was held that an employee compulsorily retired does not lose any right acquired by him before retirement and that the said rule is not intended for taking any penal action against the government servant and that the order, retiring a government servant compulsorily can only be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground is available to a government servant who is sought to be compulsorily retired from service under the relevant rules subject to the conditions provided therein.
13. In Baikuntha Nath Das and Another v.
Chief District Medical Officer Baripada and Another, 1992 (2) SCC 299, this Court laid down certain principles, which are as under:
"34. (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 17 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 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."
14. In State of Punjab v. Gurdas Singh, 1998 (4) SCC 92, it was held thus:
"Before the decision to retire a government servant 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 18 any uncommunicated adverse entries as well."
And, finally the principles are laid down in paragraph 15, in the following manner:
"15. The aforesaid decisions unmistakably lay down that the entire service record of a government servant could be considered by the government while exercising the power under FR 56 (c) of the rules with emphasis on the later entries. FR 56 (c) of the rules read with sub-rule (2), empowers the state government with an absolute right to retire an employee on attaining the age of 50 years. It cannot be disputed that the dead woods need to be removed to maintain efficiency in the service. Integrity of a government employee is foremost consideration in public service. If a conduct of a government employee becomes unbecoming to the public interest or obstruct the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest. The government's right to compulsorily retire an employee is a method to ensure efficiency in public service and while doing so the government is entitled under Fundamental Rule 56 to take into account the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. In fact, entire service record, character roll or confidential report furnishes the materials to screening committee or the state government, as the case may be, to find out whether a government servant has outlived his utility in service. It is on consideration of totality of the materials with emphasis on the later entries in the character roll, the government is expected to form its opinion whether an employee is to be compulsorily retired or not."
(Emphasis supplied) 15- It is clear from the aforesaid principle that the entire service record has to be evaluated and if the integrity of the government employee is doubtful and there are 19 material to show existence of the aforesaid fact, action can be taken.
16- Similar principle is laid down in the case of M.L. Binjolkar Vs. State of MP, 2005(6) SCC 224.
17- Finally, a Division Bench of this Court in the case of State of MP and another Vs. Noor Jama Khan and another, 2002(3) MPLJ 147, has taken note of various judgments, including the judgment in the case of Umed Bhai M. Patel (supra), and the principles have been crystallized in the following manner:
"The order of compulsory retirement is the prerogative of the Government and it can be passed on the subjective satisfaction of the State Government. Subjective satisfaction cannot be done in a manner which a prudent man can never conceive. Satisfaction like discretion has to be based on proper consideration and weighment of material. In the name of subjective satisfaction no one can be allowed to behave in a whimsical or capricious manner. Fancy has no place in law. Subjective satisfaction cannot be scanned as if done one is sitting in an appeal, but it must meet the requirement of appreciation expected of a prudent man and the appreciation should be relevant and germane to the purpose apropos to its context. It cannot be conceived for a moment that the subjective satisfaction would take away the order from the purview of judicial scrutiny solely on the basis that the committee has been subjectively satisfied. It must indicate the satisfaction of a prudent and fair man and there should be no perversity of approach."
(Emphasis supplied)"
18- The judgment of the Single Bench, in the case of Yogiraj Sharma (supra) was further considered by the Division Bench on a writ appeal being filed by the State Government in the case of State of MP Vs. Yogiraj Sharma, 2009(4) MPHT 250, and the Division Bench has approved the decision.
19- It is, therefore, clear from the principle governing the law relating to compulsory retirement that an employee is retired compulsorily in public interest earlier to his normal age of 20 superannuation, after he has completed the requisite period of service and when it is found that he is a dead wood in the department. Compulsory retirement is neither a punishment nor does it cast a stigma on the employee concerned. However, before taking a decision to compulsory retire an employee his entire service, character roll etc are to be placed before the appropriate Screening Committee and on scrutiny of the same the Committee has to decide as to whether the employee is useful to the department or is a deadwood.
20- As held by the Division Bench of this Court, in the case of Noor Jama Khan (supra), compulsory retirement is the prerogative of the government and it can be passed on the subjective decision of the government. However, subjective decision has to be done in a manner, which a prudent man would normally do. The entire service record has to be assessed and the discretion is to be passed on proper consideration of the material and a reasonable prudent man's approach should be adopted. If the action taken in the present case, in the backdrop of the principles laid down as indicated hereinabove, are taken note of, it would be seen that there is no screening of the entire service record of the petitioner. The decision to compulsorily retire the petitioner is taken by the Board of Directors on 5.12.2005 and as indicated hereinabove the decision of the Board of Directors to compulsorily retire the petitioner is taken on the basis of the enquiry report - Annexure P/24 and Annexure R-2/5. There is nothing in the proceedings of the Board of Directors - Annexure R/8 to indicate that the service record of the petitioner was scrutinized and he was found to be a dead wood in the department. On the contrary, the proceedings of the meeting indicates that without scrutiny of the service record of the petitioner a decision is taken to compulsorily retire him, based on the enquiry report obtained behind the back of the petitioner. This enquiry report, which has been obtained without hearing the petitioner and without granting him any opportunity to give his say, cannot be used against the petitioner, as it is obtained in total violation to and in disregard to the principles of natural justice. The proceedings of the Board of Directors held on 5.12.2005 is approved by 21 the Board of Directors again on 29.2.2006 and the action taken. Even though respondents by filing the performance appraisal reports of the petitioner - Annexures R-2/10, for the period July 2003 to July 2007, have tried to emphasize that his service record is not 'good', this Court is not to scrutinize the service record and take a decision. Scrutiny of the service record to assess the suitability or otherwise of the petitioner and to determine as to whether he is deadwood or not was to be done either by a proper scrutiny committee or by the Board of Directors. Nothing of this sort is done and based on an enquiry report, obtained behind the back of the petitioner, the decision is taken to compulsorily retire the petitioner. This procedure followed by the respondents is wholly illegal, it is unknown to law and not a procedure approved by law for compulsorily retiring a person under FR 56(j) or any other analogous statutory provision.
21- If the facts and circumstances of the case in hand, as has been indicated above, is evaluated in the backdrop of the principles laid down for compulsorily retiring an employee by treating him to be a deadwood in the department is concerned, it would be clear that in the present case, petitioner is found to be guilty of certain allegations regarding his appointment and the guilt against the petitioner is recorded in an exparte enquiry conducted behind his back. Based on this enquiry report, petitioner is infact punished by compulsory retirement and the respondents want this Court to uphold the said action on the ground that the compulsory retirement is in accordance to law i.e.... FR 56(j) and petitioner is a deadwood in the department. I am afraid the said stand of the respondents cannot be accepted or upheld by this court. It is a case where action taken by the respondents does not fulfil the requirement of law, is in contravention and in total disregard to the principles governing compulsory retirement of an employee and, therefore, has to be quashed. 22- Accordingly, in view of the above, it has to be held that the action of the respondents in compulsorily retiring the petitioner is illegal, contrary to the principles of law and has to be quashed. In view of the above, the decision of the Board of Directors taken on 5.12.2005 and on 22 29.2.2006, and the impugned order-dated 28.9.2007 - Annexure P/31 are quashed. Respondents are directed to reinstate the petitioner on the post held by him at the time of retirement and grant him all consequential benefit of salary and other monetary benefits in accordance to his entitlement after deducting the post retiral benefits already granted to him, after his compulsory retirement. Benefits accruing to the petitioner, mandatory in nature, be extended within a period of two months from the date of receipt of certified copy of this order. 23- Petition stands allowed and disposed of without any order so as to costs.
( RAJENDRA MENON ) JUDGE Aks/-