Central Administrative Tribunal - Delhi
Daya Ram S/O Shri Har Chand vs Union Of India Through The Secretary on 31 July, 2008
Central Administrative Tribunal Principal Bench OA No.1833/2007 New Delhi this the 31st day of July, 2008. Honble Mr. Shanker Raju, Member (J) Honble Mr. Shailendra Pandey, Member (A) Daya Ram S/o Shri Har Chand, R/o Village Fazilpur, (Farrukh Nagar), Distt. Gurgaon (Har). -Applicant (By Advocate Shri Yogesh Sharma) Versus 1. Union of India through the Secretary, Ministry of Communication, Sanchar Bhawan, New Delhi. 2. The Director General, Department of Posts, Ministry of Communication & IT, Dak Bhavan, Sansad Marg, New Delhi. 3. The Chief Post Master General, Postal Services, Haryana Circle, Ambala. (Har) 4. The Sr. Supdt. of Post Offices, Gurgaon Division, Gurgaon (Har). -Respondents (By Advocate Shri K.R. Sachdeva) O R D E R Mr. Shanker Raju, Honble Member (J):
Applicant, by virtue of this OA, has challenged an order dated 14.6.2006, compulsorily retiring him under FR 56 (J) (ii). Also challenged is an order passed on his representation dated 23.8.1987, where the request of applicant for reinstatement has been turned down, upholding the compulsory retirement.
2. Applicant, who has been working as Postal Assistant, was recruited in 1971 in the Postal Department and was promoted to Group D on 14.9.1976. He was also promoted as Postal Assistant on 1.9.1981 and was granted time bound promotion on completion of 16 years of service on 9.9.1997. Apart from a minor penalty of censure awarded on 13.9.1992 on handing over keys applicant was issued a warning for remaining absent on two occasions. However, on payment made to KVP after death of the investor without sanction, on a part liability, applicant was imposed a recovery of Rs.25,000/- on 25.9.2002. The Tribunal in OA-1509/2006 set aside the major penalty imposed upon the applicant.
3. A Screening Committee considered the case of applicant for compulsory retirement and on a Review Committees meeting held on 17.5.2006 on the basis of the aforesaid record and absence on two occasions, which was treated as dies non, taking the main plank of major punishment and overall record, not being satisfactory recommended compulsory retirement of applicant on attaining the age of 55 years.
4. Accordingly, an order passed on 14.6.2006 under FR 56 (J) (ii) applicant has been ordered to be retired compulsorily on the forenoon of 15.9.2006 on attaining the age of 55 years on 2.7.2006.
5. A representation preferred was also turned down. However, a major penalty was set aside in OA-1509/2006 but when this fact was not considered led to OA-1893/2006, wherein the following directions were issued on 29.3.2006:
9. Between April, 2001 to March, 2002 reports had been submitted to the satisfaction of competent authorities. Now these two respondents re-opened these matters and when demands were raised the employer also raised this matter before the competent forum. Based on this, respondent Nos.3 and 4, in a biased manner, after four years, issued a show cause notice dated 20.2.2006 in respect of alleged negligence committed by applicant, during the period April, 2002 to March, 2002. On 6.3.2006, applicant made a representation to respondent No.3 requesting for supply of basic records/documents on which show cause notice had been based without doing this, respondent Nos.3 and 4 issued the impugned major penalty charge sheet vide order dated 3.7.2006 and a memorandum to the following effect was issued in which it is alleged that applicant committed negligence etc.:-
Memorandum The undersigned propose to hold an inquiry against Shri Subash Chander, Branch Manager, Branch Office, ESI Corporation, Ambala City under Regulation 14 and Para 3 of the Third Schedule of the Employees State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959 as amended. The substance of the imputations of misconduct and misbehaviour in respect of which, the inquiry is proposed to be held is set out in the enclosed statement of article of charge (Annexure-1). A statement of imputations of misconduct or misbehaviour in support of each article of charge is enclosed (Annexure-II). A list of documents by which the articles of charges framed are proposed to be sustained and a list of witnesses by whom, the article of charge are proposed to be sustained are also enclosed (Annexures-III and IV).
This action on part of respondents caused prejudice to the applicant and, therefore, the impugned charge sheet is liable to be quashed on this sole ground alone as held by the Honble Supreme Court in the case of State of A.P. Vs. N. Radhakishan, JT 1998 (3) SC 123 as well as in the case of Chander Bhushan Vs. NCT of Delhi in OA 2359/2003 on 14.5.2004 which has been upheld by the Honble Delhi High Court and subsequently by the Honble Supreme Court wherein it has been held that It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
6. In pursuance thereof, the Representation Committee considered the claim of the applicant, but rejected the same on the ground that the performance of applicant was not upto the mark and irregular payment of KVP was treated as adverse, giving rise the present OA.
7. Learned counsel of the applicant relying upon a decision of the Apex Court in S. Ramachandra Raju v. State of Orissa, 1995 SCC (L&S) 74 and also Sukhdeo v. Commissioner, Amravati Division, Amravati and another, 1996 (2) ATJ SC 127, contended that compulsory retirement on a major penalty has been set aside. The action is not in public interest but is by way of infliction of a penalty upon the applicant.
8. Learned counsel states that keeping in view the overall record of the applicant except a minor penalty of censure on recovery of Rs.25,000/-, where no corrupt motive was attributed, merely on the basis of remaining absent from duty and once the ACRs show only factum of penalty with adversity, there is no subjective satisfaction arrived at in compulsorily retiring the applicant from service.
9. Learned counsel further stated that the Representation Committee has not adhered to the directions of the Tribunal and on their ipsi dixit when the utility of the applicant has not been outlived, he has been retired with five more years to go for his retirement on superannuation, which is contrary to the decision of the Apex Court in P.B. Roy v. State of West Bengal, 1999 (3) ATJ SC 94.
10. On the other hand, learned counsel of respondents, at the outset, states that a decision delivered on 21.2.2008 by the Apex Court in Employees Association v. Bihar Rajya Shahkari Bhumi Vikas Bank (press cutting filed), ruled that employer has absolute discretion in compulsorily retiring its staff. Learned counsel states that punishment and warnings given to applicant during his service and his absence period make the record of the applicant unsatisfactory. As such, ACRs of applicant being average the decision of the Review Committee, as upheld by the Representation Committee, there exists no infirmity in compulsory retiring the applicant.
11. We have carefully considered the rival contentions of the parties and perused the material on record.
12. At the outset, compulsory retirement under FR 56 (J) (ii) is not a penalty. Those employees who have outlived their utility and have become ineffective in performance, in public interest are retired prematurely either on completion of 50 years of age or 30 years of qualifying service. The consolidated instructions have been issued by the Government from time to time, laying down the methodology vide MHP&AR OM dated 5.1.1978 and OM dated DoP&T dated 7.8.1985 and 7.3.1986. From the cumulative reading of all these instructions the condition precedent is that in respect of whom provisions of FR 56 (J) have been invoked their integrity should be doubtful or they may be ineffective in performance. It is laid down that the entire service record should be considered and ineffectiveness would not be judged if during the preceding five years one is promoted to a higher post or his performance has been satisfactory. The guidelines also provide on the basis of the decision of the Apex Court in R.N. Butail v. Union of India, 1971 (2) SCR 55 and in Union of India v. M.E. Reddy, AIR 1980 SC 563 the action is to be purely in public interest without any malafide or any irrelevant or extraneous consideration. Examining the ineffectiveness Peter Principle laid down in 1969 has to be applied, according to which an assessment of performance in the promotion is the criteria.
13. With the above backdrop of the instructions, the Apex Court in S. Ramachandra Raju (supra) while examining the import of compulsory retirement, observed as under:
5. In B.R. Chadha v. Union of India, (1980) 4 SCC 321: (AIR 1981 SC 70), this Court while considering the scope of judicial review of the exercise of the power to compulsorily retiring a government servant held at p. 325 that 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 officer of audit vested in C and 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 over-awing 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 surest menace to public interest 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 mischief we have just projected. The exercise of power must be bona fide and promote 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 confirmed 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.
6. The whole purpose of the rule is to weed out the worhless without the punitive extremes covered by Article 311 of the Constitution. After all, Administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies. They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive, insouciant, unintelligent or dubious conduct impede the flow or promote stagnation. In a country where speed, sensitivity, probity, and non-irritative public relations and enthusiastic creativity are urgently needed, paperlogged processes and callous cadres are the besetting sin of the Administration. It is in public interest to retire a never-do-well, but to juggle with confidential reports when a man's career is at stake is a confidence trick contrary to public interest. Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision-making. The appropriate authority, not the Court, makes the decision, but even so, caveat is necessary to avoid misuse.
7. This Court considered the whole service record. In that case some anterior record in which the Review Committee found that the performance of the appellant was below average and that, therefore, he was compulsorily retired. But the service of later years disclosed that there was considerable improvement in the efficiency of the appellant. While considering the exercise of the power in that background this Court held that one wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and absolute material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of over-looking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Accordingly the appeal was allowed and the order of compulsory retirement was set aside. In C.D. Ailawadi v. Union of India, AIR 1990 SC 1004, this Court reiterated that the order of compulsory retirement is liable to be upset if no requisite opinion was found on the basis of the total evolution of the record or it was based on collateral grounds or the decision is arbitrary. On the facts that the Committee had found In the character rolls of the appellant that he did not have unblemished record of service, this Court upheld the order of compulsory retirement. In Ram Ekbal Sharma v. State of Bihar, (1991) 78 FJR 1: (AIR 1990 SC 1368), the facts were that the appellant had excellent record of service and was successively promoted to various high echelons from time to time. Departmental proceedings were initiated against him. Midway it was dropped and exercising the power under Rule 74(b)(ii) of the Bihar Service Code, he was compulsorily retired from service which was challenged but when became unsuccessful in the High Court, on appeal, this Court held that though the order of compulsory retirement was couched in an innocuous language the Court could look into the record by lifting the veil and consider whether the order was by way of punishment. On the facts it was found that the order of compulsory retirement was by way of casting a stigma on the reputation or career of the appellant and that, therefore, it was held to be in contravention of Art. 311 of the Constitution.
8. In Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299 (AIR 1992 SC 1020), a bench of three Judges of this Court was to consider whether uncommunicated adverse remarks would be considered to order compulsory retirement. This Court considering the scope of Fundamental Rule 56(j) on the anvil of administrative law, held that the order of compulsory retirement has to be passed on forming the opinion that it is in the public interest to retire a government servant compulsorily. Though the order is passed on the subjective satisfaction of the government, the government or the Review Committee shall have to consider the entire record of service before taking a decision in the matter, of course, attaching more importance to record and performance during the later years. The record so considered would naturally include the entries in the confidential records/ character rolls, both favourable and adverse. The order of compulsory retirement is not liable to be quashed on mere showing that while passing it uncommunicated adverse remarks were taken into consideration. Further this does not mean that judicial scrutiny is excluded altogether. Though the Court would not examine the matter as an appellant Court, they may interfere if they are satisfied that the order is mala fide or passed on no evidence or 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, the remedy under Article 226 is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions.
9. It is thus settled law that though the order of compulsory retirement is not a punishment and the government employee is entitled to draw all retiral benefits including pension, the government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood need to be removed to augment efficiency. Integrity in public service need to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace in public service and injurious to public interest. The entire service record of character rolls or confidential reports maintained would furnish the back drop material for consideration by the Government of 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. Therefore, the entire service record more particularly 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 appointments 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. On total evolution 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.
14. If one has regard to the above, it is only when an opinion has been formed on exercise of bonafide only then in judicial review compulsory retirement is not to be interfered with. A solitary incident or a report shall not form the basis of compulsory retirement, as performance and utility of a Government servant should be judged subjectively on the basis of the entire service record. It may be that the service in a particular grade/post after promotion may not be satisfactory but overall service record of a person when shows a consistent reasonable performance, any opinion formed as to the employee being deadwood shall not be apt in law.
15. In State of Gujarat v. Suryakant Chunilal Shah, 1999 SCC (L&S) 313, the Apex Court while taking cognizance of the earlier decisions of the Apex Court, including Union of India v. Col. J.N. Sinha, 1970 (2) SCC 458, ruled as under:
11. What is "public interest" was explained in the classic decision of this court in Union of India v. Col. J.N. Sinha. It was pointed out that the object of premature retirement of a government servant was to weed out the inefficient, corrupt, dishonest employees from the government service. The public interest in relation to public administration means that only honest and efficient persons are to be retained in service while the services of the dishonest or the corrupt or who are almost dead wood, are to be dispensed with. The court observed:
"COMPULSORY retirement involves no civil consequences. The aforementioned Rule 56(j) is not intended for taking any penal action against the government servants. That Rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the Rule. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer.It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organisations and more so in government organisations, there is a good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the interests of the public. While a minimum service is guaranteed to the government, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest ......."
It is true that a compulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then as the Rule provides that such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired government servant does not lose any of the benefits earned by him till the date of his retirement. Three months' notice is provided so as to enable him to find out other suitable employment.
IN our opinion, the High court erred in thinking that the compulsory retirement involves civil consequences."
12. This was also the view of this court in H.C. Gargi v. State of Haryana.
13. In Gian Singh Mann v. High court of Punjab & Haryana it was pointed out that "the expression "public interest' in the context of premature retirement has a well-settled meaning. It refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competency and utility called for by the government service to which he belongs".
14. In Kailash Chandra Agarwal v. State of M.P. it was pointed out that the order of compulsory retirement, if taken in public interest, could not be treated as a major punishment and that Article 311(2 of the Constitution could not be invoked, as the employee concerned was no longer fit in public interest to continue in service and, therefore, he was compulsorily retired.
15. In Union of India v. M.E. Reddy it was pointed out that the object of compulsory retirement was to weed out the dead wood in order to maintain a high standard of efficiency and initiative in service. Rule 16(3 of the All- India (Death-cum-Retirement) Rules, 1958, empowered the government to compulsorily retire officers of doubtful integrity. The safety valve of public interest was the most powerful and the strongest safeguard against any abuse or colourable exercise of power under that Rule.
16. A three-Judge bench of this court in Baikuntha Nath Das v. Chief Distt. Medical Officer laid down the following five principles:
"(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 interference."
17. THIS decision was reiterated by another three-Judge bench of this court in Posts & Telegraphs Board v. C.S.N. Murthy in which it was laid down as under: (SCC Headnote) "AN order of compulsory retirement is not an order of punishment. FR 56(j) authorises the government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service, if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the government to decide upon. The courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record."
(emphasis supplied)
18. In K. Kandaswamy v. Union of lndia this court observed that "9. While exercising the power under Rule 56(j) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The government is given power to energise its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. When the appropriate authority forms bona fide opinion that compulsory retirement of the government employee is in the public interest, court would not interfere with the order."
19. The court, however, added that the opinion must be based on the material on record otherwise it would amount to arbitrary or colourable exercise of poweR.It was also held that the decision to compulsorily retire an employee can, therefore, be challenged on the ground that requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision.
20. In S.R.Venkataraman v. Union of india this court held the order of compulsory retirement as a gross abuse of power as there was nothing on the record to justify and support the order.
21. In Baldev Raj Chadha v. Union of India it was held that although the purpose of FR 56 was to weed out worthless employees without punitive extremes, if under the guise of "public interest", an order of premature retirement is made for any other purpose, it would be the surest menace to public interest and the order must fail for unreasonableness, arbitrariness and "DISGUISED dismissal".
22. Baikuntha Nath case was considered by this court in M.S. Bindra v. Union of India and it was laid down as under: (SCC Headnote) "Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion, the same can be obviated on the assumption that other materials alone need be looked into."
It was further observed as under:
"13. While viewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion."
23. Inorder, therefore, to find out whether any government servant has outlived his utility and is to be compulsorily retired in public interest for maintaining an efficient administration, an objective view of overall performance of that government servant has to be taken before deciding, after he has attained the age of 50 years, either to retain him further in service or to dispense with his services in public interest, by giving him three months' notice or pay in lieu thereof.
24. The performance of a government servant is reflected in the annual character roll entries and, therefore, one of the methods of discerning the efficiency, honesty or integrity of a government servant is to look at his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorisation of the employee is poor and there is material also to cast doubts upon his integrity, such a government servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of "integrity". If this is missing, the whole bundle would disperse. A government servant has, therefore, to keep his belt tight.
25. Purpose of adverse entries is primarily to forewarn the government servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.
16. A three-Judge Bench of the Apex Court in Baikuntha Nath Das v. Chief Distt. Medical Officer, (1992) 2 SCC 299 laid down principles in case of compulsory retirement, which, as a condition precedent obligates formation of an opinion in public interest to retire a Government servant and the same is subjected to judicial review for interference, if it is vitiated by malafide, based on no evidence and it is arbitrary.
17. We have to distinguish between a compulsory retirement imposed as a punishment pursuant to disciplinary proceedings and compulsory retirement as a pre-mature termination of service in public interest. The former entails principles of natural justice whereas the latter excludes the same.
18. In Nawal Singh v. State of U.P., 2003 (SCC) (L&S) 1212, while dealing with a case of compulsory retirement of a Judicial Officer the principles laid down in Baikuntha Nath Das (supra) have been reiterated and it is further held that on the basis of decision in M.E. Reddy (supra) that the superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision. Sometimes the remarks are innocuous and there are no reasonable grounds on overall assessment to describe a person either poor in performance or with doubtful integrity, compulsory retirement cannot be resorted to as an alternate to dispense with the service on extraneous consideration. It is also to be borne in mind that it is not a shortcut to be arrived at to remove a person for which a definite methodology under the procedural rules has been laid down and also attraction of principles of natural justice as a condition precedent.
19. In State of U.P. v. Chater Sen, 2005 SCC (L&S) 538, where compulsory retirement was on account of a major penalty, which has been set aside by the Court, basing compulsory retirement on the aforesaid penalty, as the main plank has been held to be illegal.
20. Having regard to the above position of law, insofar as the decision cited by the learned counsel of respondents in Bihar Rajya Shakari Bhumi Vikas Bank (supra) is concerned, the same has no applicability to the facts of the present case, as distinguishable. Therein compulsory retirement of an over staffed organization the absolute discretion has been ruled to be vested in the Bank. However, the compulsory retirement under FR 56 (J) with a clear methodology laid down and covered by the dicta of the Apex Court has to be proceeded with on a different footing.
21. Coming to the conspectus of the facts of the present case and on perusal of the record, review committee while considering compulsory retirement of applicant took into consideration as per review made on 17.5.2006 a major penalty, which has been set aside by the Tribunal. Apart from it, the only penalty existing in the record is a minor penalty of censure on an administrative lapse of handing over keys. Moreover, two instances of absence from duty, for which the period has been treated as dies non and has also taken into consideration an order of recovery of Rs.25,000/-, whereby applicant has allegedly made payment of KVP in that case, no malafide or dishonest intent was found and as out of an amount of Rs.70,000/- a part recovery being one of the persons in the process of making payment of KVP, a recovery was imposed upon him.
22. It is pertinent to note that during the tenure of applicant since 1971 he was given time bound promotion clearly establishes that right from 1971-1992 there was not even a whisper as to adversity in his record of service, which was without any punishment. The period from 1992 till he has retired, i.e., 2005 the last five years records show only recovery of Rs.25,000/- which was not on any corrupt motive but only on administrative lapse. The ACRs conveyed to the applicant do not within the attributes contain any adverse remarks, whereas the performance of applicant was found satisfactory. However, adverse remarks were only with regard to infliction of penalty and the factual aspect of the matter and major penalty, which, to our considered view, cannot be an adverse ACR per se. The integrity of the applicant has not been certified to be doubtful.
23. In the above backdrop, applying the test of a common reasonable prudent man the directions issued by the Tribunal (supra) were to the effect that the representation committee should now consider the claim, whereas the order passed indicates that on examination of entire service record, absence of applicant on two occasions and imposition of recovery has been found to be adverse. This has weighed heavily in the mind of the authorities to observe that the performance of the applicant was not upto the mark.
24. In our considered view, it is only when an employee is found inefficient and has outlived his utility that one has to be compulsorily retired. It is not that the performance has not been found upto the mark and integrity, which has been certified to be above-board, an adverse inference has to be drawn otherwise by the review committee. Public interest would not be served if on a solitary instance of recovery of Rs.25,000/- during 25 years service tenure of applicant he has been observed to be a deadwood. There is nothing on record apart from the aforesaid instance that the applicant has not been performing well and rather his ACRs show his performance wither satisfactory or average, which is not an adverse. The affirmation of opinion by the review committee and the representation committee is arbitrary and perverse. No subjective satisfaction has been arrived at by the respondents and on insufficient material not relevant in establishing unsuitability of the applicant in his performance, the decision to retire him compulsorily and upholding it in representation is vitiated by legal malafides and is in contravention of not only the guidelines issued by the DoP&T but also the established law.
25. In the result, for the foregoing reasons, OA stands allowed. Impugned orders are set aside. Respondents are directed to re-instate applicant forthwith in service. In such an event, he shall be entitled to all consequences, as admissible in law. No costs.
(Shailendra Pandey) (Shanker Raju) Member (A) Member (J) San.