Karnataka High Court
H Surendra Shenoy vs Syndicate Bank on 30 October, 2012
Author: N Kumar
Bench: N Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 30th day of October 2012
PRESENT
THE HON'BLE MR. JUSTICE N KUMAR
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
Writ Appeal No. 2007 of 2007 (S-RES)
BETWEEN:
H. Surendra Shenoy
Aged about 57 years
S/o late H. Sarvothama Shenoy
Earlier working as Chief Manager
an officer in Senior Management
Grade Scale-IV at Syndicate Bank
Zonal Office, Udupi-576 101
Udupi District, Karnataka State
Since compulsorily retired and
R/at Building No.P.2/Plot No.101
"Oxford Premium" Kedarinagar
Wanawadi, Pune-411 040 ...Appellant
(By Sri P. S. Rajagopal, Senior Counsel for
M/s. P.S. Rajagopal Associates, Advocates)
AND:
Syndicate Bank
A body constituted under the
Banking Companies' (Acquisition
2
& Transfer of Undertakings) Act
1970 represented by its Chairman
& Managing Director, Human
Resources Development Division
Personnel Department
Head Office, Manipal-576 104 ...Respondents
(By M/s. Prabhu & Dave, Advocates)
This Writ Appeal filed Under Section 4 of the Karnataka
High Court Act praying to set aside the order passed in Writ
Petition No.6196 of 2004 dated 01-10-2007.
This Writ Appeal coming on for hearing this day,
N. KUMAR J., delivered the following:
JUDGMENT
This appeal is against the order passed by the learned Single Judge, who has declined to interfere with the order of the compulsory retirement.
2. The appellant joined services of the Bank as Clerk in the year 1968. He earned successive promotions and ultimately he was promoted as Chief Manager/Zonal Manager in Senior Management Grade Scale IV in the year 1995. During September 2002, he joined Zonal Office, Udupi as Chief Manager, on transfer. The appellant received a communication 3 dated 1st July 2003 from the Personnel Department of the Bank regarding performance appraisal report of the appellant for the year 2002-03. Until the end of 31.03.2003, there was no adverse remark. By letter dated 16th September 2003, the appellant was informed that on close scrutiny of his performance during the first quarter of the financial year, i.e., 1st April 2003 and 30th June 2003, it is noted that his performance is not satisfactory. Therefore he was advised to improve his performance and show better results within next three months. If there is no perceptible improvement in the performance, they may have to contemplate appropriate action for non/under performance.
3. The appellant replied to the said communication by letter dated 29.09.2003 bringing to the notice of Assistant General Manager, Zonal Office, Udupi that during the last 35 years of his career in the Bank, never such observation has been made by the any of his superiors. During the current financial year, he has been entrusted with the task of Supervision/Managing Personnel, PDC, PMC and IT 4 department at Zonal Office. He is fully involved in the job entrusted to him and discharging his responsibility to the best of his ability and satisfaction. He would be glad and obliged if he was favoured with the specific areas where his performance has been found wanting and has been termed as unsatisfactory to enable him to improve further in those areas and to come up to their expectations. No reply was sent to the said letter pointing out the area in which he has to improve his performance. However, he received a communication as per Annexure-G dated 21.10.2003 informing him that in view of the recommendation dated 21.10.2003 made by the Special Committee under Regulations 19(1) and (2) of the Syndicate Bank Officers' Service Regulation 1979, the competent authority has formed an opinion that in the public interest and in the interest of the Bank, it is not desirable to continue him in the services of the Bank and consequently passed an order directing to retire him from service of the Bank with immediate effect. He was informed that he had retired from the services of the Bank with immediate effect. It was also pointed out that he shall stand relieved from the services of the Bank immediately 5 before the office hours on 22.10.2003. He will be paid three months pay in lieu of three months notice period. If he desires to make/submit any representation in the matter, he shall send the same in writing and address the same to the Board of Directors, Syndicate Bank, Head Office, Manipal, within one month from the date of the receipt of the letter.
4. On receipt of the said communication, he preferred an appeal on 12.11.2003 as per Annexure-J, contending interalia among other grounds, the ground that the order dated 21.10.2003 is exfacie stigmatic and punitive and the said order could not have been passed except as a measure of penalty for a proved misconduct under provisions of Syndicate Bank Employees (Discipline & Appeals) Regulations 1976. Therefore on that short ground, it is liable to be set aside. In reply to the same, he received a communication dated 29.01.2004 a cryptic order stating that the Board after examining his representation has found the decision of the competent authority to retire him from the service of the Bank in public interest is justified. 6
5. Therefore, aggrieved by the same, he preferred a writ petition before this Court raising several grounds. The learned Single Judge, who heard the matter was of the view that the impugned order is not a measure of any punishment but one to retire the petitioner in terms of Regulation 19. Therefore the order cannot be quashed on the ground that it is one which stigmatizes the petitioner and for want of opportunity or for not holding enquiry. It also held that as three months' salary was paid in lieu of the notice, there is no substance in the contention that the statutory notice was not issued and therefore the impugned order is bad. Accordingly he dismissed the writ petition.
6. Aggrieved by the said order, the appellant is before this Court.
7. Sri. P.S. Rajagopal, learned Senior Counsel appearing for the appellant contended that the impugned order is punitive in nature. It is not an innocuous order. Therefore it amounts to dismissal from service. Dismissal from service without holding enquiry as required under the Regulations is 7 void ab initio. In support of his contention, he relied on the judgment of the Apex Court in the case of JAGADISH MITTER Vs. THE UNION OF INDIA reported in AIR 1964 SC 449(1) and also the judgment of the Apex Court in the case of STATE OF UTTAR PRADESH Vs. MADAN MOHAN NAGAR reported in AIR 1967 SC 1260. Further he contended that from the statement of objections, it is clear that the committee met on 21.10.2003. The appellant's case was considered. On that date they found that he was not suitable and then they recommended for compulsory retirement. The competent authority acting on the said recommendation was of the view that in public interest, the appellant has to be retired compulsorily and on the very same day, the impugned order, Annexure-G is issued to the appellant terminating his services with immediate effect. In other words, the consideration of the case of the appellant by the committee, formation of the opinion, recommendation, consideration of the recommendation by the competent authority, his opinion and communication of the order of compulsory retirement, all has taken place on the very same day, which on the face of it shows how arbitrarily the Bank has 8 acted in so far as the appellant is concerned. In the statement of objections it is pointed out that in all, 974 officers' case was considered and out of them only 8 persons were compulsorily retired and the entire consideration was done in two days, i.e., 21.10.2003 and 25.10.2003. Having regard to these admitted material on record, he submits that it is a clear case of arbitrary action and there is no fairness, as such it is hit by Article 14 and 16 of the Constitution. He also pointed out the motive behind such action by the Bank. Therefore he submitted that the learned Single Judge has not appreciated the case in the proper perspective and committed serious illegality in upholding such a void order and a case for interference is made out.
8. Per contra, the learned Counsel appearing for the Bank submitted that the special committee constituted had before it the record of the appellant for a period of 35 years. It is not a case of looking into his performance for a year or two before the impugned order. It is the over all performance. It is also not in dispute that, earlier, for a proved misconduct, he 9 has been imposed penalty. That apart twice he has been censured. The material on record also shows that he had a failing health. Taking into consideration all these aspects the committee of experts found that the appellant was not suitable to continue in the said post. Neither the committee nor the competent authority has used the word 'not desirable'. It is only at the time of communicating the fact of compulsory retirement, the word 'not desirable' has been used. The Court has to take into consideration the entire material on record and it is settled law that whether the order of termination is punitive in nature or a discharge simplicitor, is purely a question of fact to be gathered from the facts of that particular case. Seen from that angle, in the instant case, the impugned order is not stigmatic, it is not punitive in nature and therefore the judgments relied on by the appellant has no application to the facts of this case. On the contrary, he relied on three judgments of the Apex Court where it has been held that the order of termination is not punitive in nature, which clearly applies to the facts of this case. Therefore he submits that no case for interference is made out.
10
9. In the light of the aforesaid facts and rival contentions, the point that arise for our consideration in this appeal is:
"Whether the impugned order is punitive in nature and therefore liable to be set aside on that short ground?"
10. The facts are not in dispute. The appellant was working as Chief Manager at Zonal Office, Udupi on the day he was compulsorily retired, i.e., 21.10.2003. The order of retirement reads as under: -
Syndicate Bank Head Office, Manipal - 576 119, India PERSONNEL DEPARTMENT PERSONNEL ADMINISTRATION DIVISION Ref. No.: PD/PAD/0087/887/066367 October 21,2003 Shri H. Surendra Shenoy Emp. No.066367 Chief Manager Zonal Office Udupi Dear Sir, Sub: Notice of Retirement under Regulation 19 of Syndicate Bank Officers' Service Regulation, 1979
---11
Please take notice that in view of the recommendations dated 21-10-2003 made by the Special Committee under Regulations 19(1) and 19(2) of SBOSR, the Competent Authority has formed an opinion that in the public interest and in the interest of the Bank it is not desirable to continue you in the services of the Bank and consequently passed an order directing to retire you from the services of the Bank with immediate effect.
Therefore, you are hereby informed that you shall retire from the services of the bank with immediate effect. Please note that you shall stand relieved from the services of the Bank immediately before office hours on 22-10-2003. Please further note that you will be paid 3 months pay in lieu of 3 months notice period.
In case you desire to make/submit any representation in the matter, you may send the same in writing and address the same to the Board of Directors, Syndicate Bank, Head Office, Manipal within one month from the date of receipt of this letter which please note.
Yours faithfully, Sd/-
(Y.M.Pai) GENERAL MANAGER (P)"
11. The records of the proceedings of the Special Committee are also made available. They have taken into consideration performance appraisal for the preceding 10 years 12 (as recorded by the Reporting/Reviewing Authorities). It reads as under:-
1. Performance Appraisal for the preceding 10 years (as recorded by the Reporting/Reviewing Authorities):
Managing Dimensions and Overall performance Year & Remarks/comments of Reporting/Reviewing authority on Placement 2002-2003 Chief Good Good Prompt Good Good Sincere Performance needs Manager Udupi: ZO and improvement. He has not Honest been working to his potential. Rated as Good 2001-2002 Good Average Average Good Good Honest Low Potential. Needs Manager improvement. Rated as Mangalore: RO Average.
2000-2001 Chief Regional Head i.e., Manager Reporting Officer has rated Ahmedabad: RO Self appraisal Not Received him as Good Year & Remarks/Comments of Reporting/Reviewing Authority on Placement Job Leadership Decision Administr PR/M Integrity Overall Knowledge making ative skills arketi and performance ng Honest Skills 1999-2000 Satisfactory Needs to Satisfactory Good Satisfactory Potential Chief Adequate apply before satisfactory.
Manager taking Monitoring of
Kolkata : decision credit
RO portfolio lacks
seriousness. A
case of
overstepping
powers is
noticed in
Advances.
Rated as
Good
1998-1999 Good Has to tone More Good Satisfa Quite Good Rated as
Chief up his skills application ctory Good
Manager by working is required
Kolkata: RO with a
positive
attitude
1997-1998 Sufficient Good leader Capable of Can handle Good Honest Performance
Chief knowledge taking good any type of was not good.
Manager decision situation He has
13
Goa - serious health
Mapuca problem. Not
suitable to be
continued in
the Branch.
Does not set
good example
in punctuality
and
attendance.
Rated as
Average.
1996-1997 Satisfactory Satisfactory Satisfactory Satisfactory Satisfa Satisfactory Poor
Chief ctory potential.
Manager Performance
Mumbai: was not upto
Pali Hill the mark. The
inspection
rating of the
Branch
slipped from
'A' to 'B'
category.
Rated as
Average.
Year & Remarks/comments of Reporting/Reviewing authority on
Placement Job Ledership Decision Administr PR/Marke Integrity Overall
Knowledge making ative Skill ting Skills and Performance
Honesty
1995-1996 Adequate Adequate Adequate Adequate Adequate Good Overall rated
Chief as Good with
Manager the remarks
Mumbai: that good for
Pali Hill present
assignment.
Pali Hill
Branch headed
by him
remained
under 'C' rating
in inspection.
1994-1995 Adequate Adequate Adequate Adequate Adequate Good Good for
Sr Br present
Manager assignment
Pune: Rated as Good
Shivaji
nagar
1993-1994 Good Good Quick Excellent Very Good Excellent Rated as
Sr Br and Outstanding
Manager Methodic
Pune:
Camp
14
From 1977 to 1992, he earned Average rating for overall performance in 7 years (i.e. 1977, 1980, 1981, 1982, 1983, 1984, 1988). Above Average in 7 years (i.e 1978, 1979, 1985, 1986, 1987, 1989, 1991) and Outstanding rating for 2 years (i.e. 1990, 1992).
12. Thereafter they have taken into consideration the record of disciplinary action initiated/concluded. Then their opinion was, overall his performance has been found to be inadequate, inconsistent and by and large not commensurate with his experience and potential assessed for the purpose of promotions. His health also is a factor assessed for considering him for retirement.
13. When the said assessment was placed before the competent authority he proceeded to pass an order directing that the appellant be relieved from service by paying three months pay in lieu of notice period. Accordingly, the impugned order is issued.
14. Regulation 19 of Regulations, 1979 deals with age of retirement. It reads as under: -
15
"Age of retirement :-
19(1) The age of retirement of an officer employee shall be as determined by the Board in accordance with the guidelines issued by the Government from time to time.
Provided that the Bank may at its discretion, on review by the Special Committee/Special Committees as provided hereafter in sub- regulation (2) retire an officer employee on or at any time after the completion of 55 years of age or on or at any time after the completion of 30 years of total service as an officer employee or otherwise, whichever is earlier.
Provided further, that before retiring an officer employee, at least three months' notice in writing or an amount equivalent to three months' substantive salary/pay and allowances, shall be given to such officer employee;
Provided further that an officer aggrieved by the order of the Competent Authority, as provided in Sub-regulation (2), may within one month of the passing of the order, give in 16 writing a representation to the Board of Directors against the decision of the Competent Authority, and on receipt of such representation from the concerned officer, the Board of Directors shall consider his representation and take a decision within a period of three months. Where the Board of Directors decides that the order passed by the Competent Authority is not justified, the concerned officer shall be reinstated as though the Competent Authority has not passed the order;
Provided also that nothing in this regulation shall be deemed to preclude an officer employee from retiring earlier pursuant to the option exercised by him in accordance with the rules in the Bank.
Sub-regulation (1) as amended by the Board on 29-08-1986) Explanation:-
An Officer employee will retire on the last day of the month in which he completes his age of retirement.17
(2) The Bank shall constitute a Special Committee/Special Committees consisting of not less than three members, to review, whether an officer employee should be retired in accordance with the first provision to this Regulation. Such Committee/Committees shall from time to time, review the case of each officer employee and no order of retirement shall be made unless the Special Committee/Special Committees recommend(s) in writing to the Competent Authority the retirement of the other employees.
Sub-Regulation (2) as amended by the Board on 29-08-1986)"
15. The aforesaid provision provides for retirement of an officer employee on the basis of review by the Special Committee/Special Committees as provided in sub-section (2). Therefore, the aforesaid provision provides for what is known as compulsory retirement of an officer employee after the completion of 55 years of age or 30 years of completed service. No reasons need be given for such retirement. It is based on 18 the recommendation of the committee constituted to review whether an officer employee should be retired or not. It is in this background we have to see what is the law on the point.
16. A Constitution Bench of the Apex Court in the case of JAGDISH MITTER vs THE UNION OF INDIA [AIR 1964 SC 449](1) dealing with the question whether an order of discharge on the face of it shows that it is not discharge but dismissal has observed as under: -
"21. However, the appellant's contention that the order of discharge passed against him on the face of it shows that it is not discharge but dismissal, cannot be rejected. We have already observed that Article 311 applies to temporary servants or probationers, so that if it is shown that instead of terminating their services by one month's notice under the terms of the contract or the relevant rules, the authority proceeds to dismiss them, it is incumbent on the authority to afford to the said temporary servants or probationers the protection guaranteed by Art. 311. The appellant's contention is that in the present case, the order itself shows that it is not a discharge but a dismissal, and that 19 naturally involves the question as to the construction of the order. The order reads thus:
"Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November 1, 1949."
No doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. The learned Additional Solicitor-General attempted to argue that what the order really meant was that Government did not think it desirable or necessary to continue the appellant in its employment. He fairly conceded that the 20 words used in the order were somewhat unfortunate, but he urged that the order should be liberally construed and should be held to have been passed by the authority by virtue of its power to terminate the services of the appellant on one month's notice. We are not prepared to accept this argument. It is obvious that to say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching 21 any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be : does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal. That being so, we are satisfied that the High Court was in error in coining to the conclusion that the appellant had not been dismissed, but had been merely discharged. It is conceded that if the impugned order is construed as one of dismissal the appellant has been denied the protection guaranteed to temporary servants under Section 240(3) of the Government of India Act, 1935, or Article 311 of the Constitution, and so, the order cannot be sustained."
17. That was a case of a temporary Second Division Clerk in the General Post Office, Lahore, for a period of 6 22 months being terminated from service. The question was whether it is a termination simpliciter or a case of dismissal or removal of the employee from service. Therefore, it was contended the said judgment has no application to the case of a permanent employee in a bank.
18. The Apex Court also had an occasion to consider the case of compulsory retirement of a permanent employee in the case of THE STATE OF UTTAR PRADESH vs MADAN MOHAN NAGAR [AIR 1967 SC 1260] where it was observed as under : -
"7. In our opinion this case is covered by the principle applied in Jagdish Mitter v. Union of India AIR 1964 SC 149. It is true that that was a case of a temporary servant, but that does not matter. The order in that case reads as follows:
"Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November 1, 1949."23
Gajenderagadkar, J., as he then was, speaking for the Court, said:
"No doubt the order purports to be one of discharge and as such can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense must be held to be an order of dismissal and not a mere order of discharge."
Later, he observed:
"It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to 24 cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be:
does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal."
8. It seems to us that the same test must apply in the case of compulsory retirement, namely: does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsorily? In the present case there is no doubt that the order does cast a stigma on the respondent."
19. From the aforesaid judgment of the Apex Court it is clear that, the word 'undesirable' expressly casts a stigma on the employee. Once a person is found to be undesirable it necessarily imports an element of punishment which is the basis of the order and is its integral part. Once the order purports to cast an aspersion it ceases to be a simple order of retirement or discharge. Therefore, a person who was in 25 service for more than 35 years in the bank and as is clear from the record set out above, had a very good track record, if all of a sudden his services is terminated on the ground that it is not desirable to continue him in the services of the bank, then the said order is not only stigmatic in nature but is also punitive. Then regulation 19 is not applicable. A person could be terminated from service only after due enquiry as required under law on proved misconduct. If there is a termination without such enquiry, the said order of termination is void ab initio and is liable to be set aside.
20. The Apex Court in the case of ALLAHABAD BANK OFFICERS ASSOCIATION AND ANOTHER vs ALLAHABAD BANK AND OTHERS [AIR 1996 SC 2030] dealing with a termination order where the words used are, "want of application to Bank's work", "lack of potential" and "found not dependable", held that, the said words are not stigmatic. Referring to Regulation 19, it was held as under: -
"19. According to Regulation 19, the Bank can, on review by the Special Committee retire an 26 officer employee on or at any time after the completion of 55 years of age or on or at any time after the completion of 30 years of total service as an officer employee or otherwise, whichever is earlier. Under the said Regulation the Bank is required to constitute a Special Committee consisting of not less than three members, to review, whether an officer-employee should be retired. Moreover, no order of retirement can be made unless the Special Committee recommends in writing to competent authority the retirement of the officer-employee. In the said letter the Bank has tried to convey to Appellant No.2 that the order of compulsory retirement has been passed in terms of Regulation 19. The order passed by the Chairman and Managing Director merely states that he has agreed with the view of the Special Committee and has, therefore, thought it fit to accept its recommendation also. The Special Committee was not examining any allegation against Appellant No.2 in the nature of misconduct but had considered his service record and expressed its opinion with respect to the assessment of his work. Therefore, it can be said without any doubt that the remarks "want of application to Bank's work", "lack of potential" and 27 "found not dependable" have been made in relation to his work and not for any other purpose. Even the dependability which is referred to is also in connection with the Bank's work. Any person reading the letter or the order of compulsory retirement would not be led to believe that there was something wrong with Appellant No.2 as regards his conduct or character. They would only indicate that he had ceased to be useful to the Bank in his capacity as a Manager. Therefore, no inference can be drawn from the said statements that they cast a stigma on Appellant No.2 and that the real intention of the Bank was to punish him for some act of misconduct or lack of integrity. Whether the order of compulsory retirement attaches a stigma to the employee or not would depend upon the facts and circumstances of each case. In the context of the facts and circumstances of this case it cannot be said that by including the aforesaid statements in the order of compulsory retirement any stigma has been attached to it. The view taken by the High Court in this behalf appears to be correct."
21. Once the said words do not constitute any stigma then the aforesaid judgment of the Supreme Court has no 28 application and rightly the said judgment was not applied. But, the word used in the present case is "not desirable" which is the word which fell for consideration in the judgment of the Constitution Bench which applies to the facts of this case.
22. Again the Supreme Court in the case of STATE OF ORISSA AND OTHERS vs RAM CHANDRA DAS [AIR 1996 SC 2436] were dealing with the question whether adverse remarks of earlier years could be taken into consideration at the time of considering the case of compulsory retirement. In that regard, they observed as under: -
"7. It is contended for the respondent that adverse entries for the two years referred to earlier and pending departmental proceedings would not be sufficient to compulsorily retire the Government servant on the premise that after promotion they would become irrelevant and minor penalty was imposed. It is true that the Government servant was allowed to cross the efficiency bar to enable him to avail the benefits to draw higher scale of pay after crossing the efficiency bar. The adverse remarks made are after promotion. Even otherwise, the remarks form part of service record and 29 character role. The record of enquiry on conduct also would be material. Though minor penalty may be imposed on given facts and circumstances to act of misconduct, never the less remains part of the record for overall consideration to retire a Government servant compulsorily. The object always is public interest. The material question is:
whether the entire record of service was considered or not? It is not for the court/tribunal to see whether the decision of the Government to compulsorily retire the Government servant is justified or not. It for the Government to consider the same and take a proper decision in that behalf. 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 compulsorily 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 self-same material after promotion may not be taken into consideration only 30 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."
23. This is not a case of taking into consideration any adverse remarks at the time of considering the case of compulsory retirement. This is a case where after taking into consideration the punishment imposed earlier, the appellant was found not desirable to be continued in service and therefore the said judgment has no application.
24. Lastly, the Apex Court in the case of PYARE MOHAN LAL vs STATE OF JHARKHAND AND OTHERS [AIR 2010 SC 3753] while dealing with a case of compulsory retirement has held that, while considering the case of an employee for compulsory retirement the entire service record is 31 to be taken into consideration. There cannot be any dispute in so far as the said legal proposition is concerned. It has no application to the facts of this case.
25. Therefore, from the aforesaid discussion it is clear that, the impugned order where it is categorically stated that in the interest of the bank it is not desirable to continue the appellant in the services of the bank is stigmatic in nature, punitive and though the said order is termed as compulsory retirement, in substance it amounts to an order of dismissal. As the order of dismissal is not preceded by an enquiry, proof of misconduct, the impugned order is illegal and liable to be set aside. Hence, we pass the following order: -
(a) Writ Appeal is allowed.
(b) The impugned order passed by the learned single Judge as well as the impugned order of compulsory retirement as per Annexure-G is hereby set aside. The order in appeal-
Annexure-K is also hereby set aside.
32It is submitted that the appellant in the meanwhile has attained the age of superannuation on 31.8.2008. Therefore, he would not be entitled to reinstatement. He would be entitled to all monetary benefits.
Sd/-
JUDGE Sd/-
JUDGE ksp/ckl