Central Administrative Tribunal - Delhi
Prabhu Dayal Baitha vs Union Of India Through Secretary (R) on 17 July, 2013
Central Administrative Tribunal Principal Bench OA No.2612/2010 Reserved on: 02.07.2013 Pronounced on: 17.07.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member (A) Prabhu Dayal Baitha, s/o Sh. Bhirgu Nath Baitha, R/o.9, L.F. Safdar Hazmi Marg, Mandi House, New Delhi. Applicant (By Advocate: Shri Amit Kumar) Versus 1. Union of India through Secretary (R), Govt. of India, Cabinet Secretariat, Room No.7, Bikaner House Annexe, Shahjahan Road, New Delhi. 2. M.K. Paysi, R/o House No. 1657, Gayatri Bhawan, Gupteshwar Road, Kripal Chowk, Jabalpur (M.P.) ALSO AT: VI-2, Plot No. 89-A, Sector-18, Gurgaon (HR.) Respondents (By Advocate: Shri Sudhir Walia and Shri T.C. Gupta) O R D E R Honble Dr. Birendra Kumar Sinha, Member (A):
The instant Original Application is directed against the impugned order of the respondents dated 20.01.2009 compulsorily retiring the applicant under the provisions of Rule 135(1)(a) of R&AW (RCS) Rules, 1975 [hereinafter referred to as Rules of 1975] on ground of becoming unemployable in the respondent-organization. This very order further provides that the pension and other retiral benefits would be calculated under Rule 135(2) of the Rules ibid on receipt of his application.
2. The applicant has sought the following relief(s):_
a) Records of the respondents may please be summoned and perused;
b) The impugned order of the Joint Secretary (Pers) dated 20.01.2009 may please be quashed and set aside;
c) The applicant may be reinstated in service with his full benefits of pay and allowances, seniority and other infringe benefits to which he is entitled, without any break in service;
d) The provisions of Rule 135 of R&AW(RCS) Rules, 1975, may be declared as illegal, un-constitutional, and void in the eyes of law;
e) Cost of the proceedings may be awarded to the applicant; and
f) Any other relief deemed fit and proper may also be granted to the applicant, in the interest of justice.
3. The case of the applicant, in brief, is that he was appointed vide order dated 31.03.2001 against temporary post of Field Assistant (GD) in the pay scale of Rs.3050-75-3950-80-4590 + allowances at the rates admissible on a purely temporary basis. The applicant further contends that prior to his appointment, he was working as Domestic Help at the residence of one Ashok Chaturvedi, the then Secretary (R) (now deceased). The applicant continued to work as Domestic Help even after his appointment as Field Assistant (GD) at the residence of late Ashok Chaturvedi, though on papers, he was shown to have been attached to the Camp Office of the then Secretary (R), who was due to superannuate in April, 2009. He wanted the applicant along with his wife to continue working at NOIDA as Domestic Help where he was to take up a residence following his retirement. The applicant declined to do so and as a result of which, he was transferred out on vindictive basis on 29.04.2008. This transfer order was intended to be a threat and was kept in abeyance. When the applicant still did not fall in line, he was relieved on 18.12.2008 for Jodhpur where he submitted his joining report on the following date. The applicant was transferred again to FIP, Gadra Road which is on India-Pakistan Border. The applicant claims that this transfer was against all norms of service. In the meantime, the applicant had been awarded commendation letters and has been given cash rewards almost eight years for having performed commendable service. In January, 2009, the services of the applicant were terminated by means of the impugned order. The applicant submitted a representation against his termination in May, 2009 which was not disposed of. Consequently, he filed OA No. 575/2010 which was disposed of by this Tribunal vide order dated 15.02.2010 directing the respondents to dispose of the pending representation of the applicant by passing a reasoned and speaking order within a period of three months. As a consequence of this, the respondents passed order dated 05.05.2010 wherein it was mentioned that the applicant had been entrusted with certain sensitive operations where he had not been discreet in his acts and had compromised the security and sensitivity of high grade operations. This matter was looked into by a Committee headed by one Additional Secretary and two Joint Secretaries and they found him un-employable under Rule 135 of the Rules of 1975 for reasons of security. This very order further went ahead to take a note of his allegation that he and his spouse had been working as Domestic Help at the residence of former Secretary (R) and denied the same. The applicant had been posted in the Personal Section of the former Secretary (R) along with few other officers and had been allotted legitimate duties. The same order further noted that the RTI was not applicable to this Organization and, as such, no response had been given.
4. The applicant in the first place has submitted that the impugned order of compulsory retirement had been passed without having given prior opportunity of being heard and hence the same is violative of the principles of natural justice. In the second place, it is contended that the impugned order was totally arbitrary and unjust as the rules of the organization had not been disclosed to the applicant. In the third place, the learned counsel for the applicant strongly asserted that the applicant and his wife had worked as bonded labourers at the residence of the former Secretary (R) against all norms of propriety and had been treated worse than bonded labour. He further stated that though the applicant was assigned official duties but he was never allowed to perform the same and had been made to work as Domestic Help only right through. In the fourth place, the learned counsel asserted that the compulsory retirement of the applicant was on account of the fact that he had declined to keep performing the duties of Domestic Help along with his wife at the residence of late Ashok Chaturvedi, former Secretary (R) in his post retiral period. In the fifth place, it is contended that no warning, note of caution or advisory had been served upon the applicant. He was not warned in any respect so that he could have the opportunity to improve his performance. In the sixth place, his services were found commendable all through as evidenced by the rewards and commendations granted to him. It could not deteriorate so much as to take a harsh step of compulsory retirement. In the seventh place, the applicant contends that this is not a case of compulsory retirement simplicitor but one with stigma as he has been deemed to be unemployable on grounds of having compromised the security. However, no charges have been drawn against him, which were required to have been done. The learned counsel for the applicant strongly asserted that in view of the unfair treatment meted out to the applicant and he and his wife, they have been made to work below the dignity of the organization. He further contends that this is a fit case where the Tribunal should interfere in the matter and quash the impugned order.
5. The learned counsel for the respondents has strongly rebutted the allegations leveled by the applicant in his Original Application. He denied that the applicant had ever worked as Domestic Help at the residence of the former Secretary (R). He was attached to the office of the former Secretary (R) who functioned from his Camp Office as so many other officers were there. This does not suggest that he was made to work as Domestic Help. The applicant underwent institutional and field trainings and he was given other assignments in the field areas. The former Secretary (R) retired on 31.01.2009 and expired on 19.09.2011 whereas the instant OA was filed in August, 2010 almost one year after the retirement of the former Secretary (R) and the OA was amended in May, 2011 i.e. 6-7 months following the demise of former Secretary (R). The former Secretary (R) is no more alive to answer the allegations leveled by the applicant against him. Respondent no.2 M.K. Pyasi, who was Joint Secretary in the respondent-Organization also retired in April, 2009. The applicant chose to keep silent for a period of almost eight years and chose to agitate the matter only after the former Secretary (R) had retired. The learned counsel for the respondents also submitted that R&AW is a Covert Organization which receives protection under Article 33 from the rights conferred in this part of the Constitution under the enactment of the Parliament. The nature of this Organization and its work is so clandestine that even a limited number of its rules have been printed. Moreover, such printed copies are numbered and have to be accounted for. The learned counsel for the respondents has, however, presented a copy of these rules for the perusal of the Tribunal as also the documents and files relating to the applicant. In view of these circumstances, the rules framed are quite restrictive. Rule 135 of the Rules ibid provides for compulsory retirement of an officer who has been exposed as an Intelligence Officer or his becoming unemployable in the organization for reasons of security and disability or injuries received by him in the performance of his duties. It is on record that even while being posted at the Headquarters, he was put under watch and when it was found that he was not discreet in his behaviour, he was posted out to the field areas. He was posted to FIP, Gadra on being relieved from SB Jodhpur and from there he was assigned to the border areas as per the continuing practice of R&AW. There also, his conduct was under watch. It was again found that he had compromised with the security of the State. As provided under Rule 135 of the Rules ibid, the applicant was found unemployable and was compulsorily retired from service. This retirement is not with stigma but rather a condition of service as per the practice and norms of the organization. The learned counsel for the respondent was at pains to explain that under the present mode of retirement under Rule 135 (2), the employee is given the benefit of the entire service which he had rendered including the increments and promotion which he would have otherwise earned and his pension is fixed after having calculated the entire period. Under the provision of Rule 135 (3), he is also given salary of full one year as compensation. The learned counsel for the respondents submitted that the entire thrust of the argument of the applicant is that he was made to work as Domestic Help at the Camp Office of the then Secretary (R) who had retired on 31.01.2009. The compulsory retirement of the applicant is due to his vindictive attitude and the clouds built by him. However, the former Secretary (R) late Ashok Chaturvedi wanted to help the applicant and it was he who ensured the applicant better terms for him. Far from being grateful to the former Secretary (R), the applicant has chosen to vilify his character knowing fully well that he is no more alive to answer the allegations against him. The learned counsel for the respondents further submitted that the applicant has not filed his papers for drawing the pensionary benefits and has compromised the security of the State by revealing certain information on account of which the organization had to make major structural changes.
6. We have carefully perused the pleadings of the parties as also the documents submitted by them and have patiently listened to the arguments put forth by their respective counsels on the basis whereof the following issues are found to emerge:-
What is the constitutional status of the Research and Analysis Wing and whether it enjoys protection under Article 33 of the Constitution?
Whether the allegation of the applicant that he was made to work as Domestic Help with the former Secretary (R) late Ashok Chaturvedi has any substance in it?
Whether the order of compulsory retirement is stigmatic by nature abridging the principles of natural justice?
What relief, if any, can be granted to the applicant?
7. Before we take a detailed examination insofar as the principal issue is concerned, it is necessary to go into some of the facets of the Organization and to spell its constitutional status. The respondent-Organization (R&AW) is an intelligence organization which indulges in covert intelligence operations relating to the security of the Nation. Admittedly the nature of the organization is covert as it indulges in operations relating to dangers posed on account of external hostile design. That compels us not to spell out the relevant provisions of the rules and functioning of the respondents lest the security of the National stands compromised.There are other organizations and intelligence agencies dealing with the security of the State and counter espionage. It is on account of the nature of the operations and the demands of the job that the employees of such security organizations like R&AW & IB, which are required to maintain a higher degree of self-discipline and secrecy. We fully endorse the opinion expressed by the learned counsel for the respondents that once the secrecy is compromised, the organization has to undertake lot of structural changes as a whole as it may spell out danger to the security of the Nation as also to that of the persons engaged in such operations. It is on this account that Article 33 of the Constitution extends the members of such organizations from operation of certain parts of the fundamental and legal rights as provided under the enactment to be legislated by the Parliament. Accordingly, the Indian Parliament has enacted Research and Analysis Wing (Recruitment, Cadre and Service) Rules, 1975 which governs the recruitment and other service conditions of the cadre of its employees encompassing even the stringent demand of the jobs for secrecy, precision and willingness to expose oneself to danger. This matter has been challenged before the Honble Supreme Court in the matter of Intelligence Bureau Employees Association Versus Union of India & Others, [1997-11-SCC-348] wherein the Honble Supreme Court observed that in the year 1984 Article 33 was amended by the Constitution (50th Amendment) Act, 1984 and as a result of which the scope of the provision has been enlarged. Under the un-amended Article 33, the rights conferred in Part-III could be restricted or abrogated by the law made by the Parliament in respect of the members of the armed force and members of other forces along with maintenance of public order. As a consequence of the amendment, the persons employed in any Bureau or in other organizations established by the State for performance of intelligence or counter intelligence which could include the IB and persons employed in connection with the telecommunication system of the force, Bureau or Organization referred to therein have been brought within the ambit of Article 33. This amendment was followed by Intelligence Organization (Restriction of Rights) Act, 1985 which restricted the intelligence agencies concerned a number of activities under the provisions of its Section 3, as enumerated below:-
"3. (1 No member of an Intelligence Organisation shall,-
(A) be a member of, or be associated in any way with, any trade union, labour union, political association or with any class of trade unions, labour unions or political associations; or (B) be a member of, or be associated in any way with, or raise funds for, or hold office in, or function in any other manner for, any other society, institution, association or organisation that is not recognised by the central government as part of the Intelligence Organisation of which he is a member or is not of a purely social, recreational or religious nature; or (C) communicate with the press or publish or cause to be published any book, letter, pamphlet, poster or other document except with the prior permission of the head of the Intelligence Organisation; or (D) except for purposes of official duty, contact or communication with any person or any matter relating to functioning, structure, personnel or organisational affairs of the Intelligence Organisation of which he is a member;
(E) use the name of the Intelligence Organisation of which he is a member for purposes not authorised by the head of the Intelligence Organisation or in any other manner except for purposes relating to the official work and functioning of the Organisation itself.
EXPLANATION.-IF any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature under clause (b) of this sub-section, the decision of the Central government thereon shall be final.
(2 No member of an Intelligence Organisation, shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be prescribed."
This was challenged by the petitioner Association in the case under reference as being discriminatory in nature and violative of the fundamental rights. The Honble Supreme Court after having examined the issues held that merely because there is deprivation of rights under Part-III of the Constitution, it does not imply that the amendment was restrictive of the basic structure of the Constitution or violative of the basic structural doctrine.
8. In Kesavananda Bharati v. State of Kerala [AIR 1973 (SC) 1461] the Honble Supreme court has held that this Article shows the care with which the circumstances in which the fundamental rights can be restricted or abrogated were contemplated and precisely described. However, the framers of the Constitution being anxious that no more restriction should be imposed upon the employees of such organizations unless it is absolutely necessary for ensuring proper discharge of their duties and maintenance of discipline amongst armed force personnel empowered the Parliament to restrict or abrogate rights conferred in Part-III of the Constitution within the permissible extent.
9. In the matter of Sunil Batra versus Delhi Administration [1978 (4)SCC 494], the Honble Supreme Court has held that even persons serving in armed forces do not cease to be the citizens of this country. Even prisoners who have been deprived of personal liberty shall not be wholly denuded of their fundamental rights. However, in the larger interest of the State and national security, the Parliament may impose conditions upon them, which extends, as per the decision in the case of Lt. Col. Prithi Pal Singh Bedi versus Union of India & Others [1982(3)SCC 140] not only to the armed forces but also to the ordinary police personnel, who are charged with maintenance of public order. These exemptions, inter alia, also emphasize maintenance of secrecy when they relate to vital public interest. The R&AW being a sensitive organization has made significant efforts to keep away his officials from the media or to conduct/ communicate with any person to avoid disclosure of any matter relating to function, structure, personal or organizational affairs of the organization and it keeps a close watch on its personnel for that matter. The Research and Analysis Wing (Recruitment, Cadre and Service) Rules, 1975 have been designed to achieve these objectives amongst others. Thus we may conclude that the respondent organization has been bestowed a constitutional status on account of its job profile related to national security. This also implies that its employees have to forgo a part of their fundamental rights in furtherance of the organizational objectives and goals. This question is answered accordingly.
10. Insofar as second of the issues is concerned, we are constrained to observe that the entire case of the applicant hinges on the allegation that the applicant and his wife were made to work as menial domestic help in the house of the former Secretary (R) late Ashok Chaturvedi whereas the applicant had been doing this work even prior to his appointment and there have been insinuation to the fact that the appointment of the applicant had been made only for creating further comfort to the then Secretary (R). It is the case of the applicant that even after he had been appointed, though officially he was shown attached at the residence of the then Secretary (R), in effect, he was discharging only domestic work despite having been designated as an officer. In this regard, the respondents have drawn our attention to the fact that all employees of this organization are designated as officers and there is no differentiation amongst the officers and work. The applicant after appointment was sent for institutional training as also for field training. The learned counsel for the respondents asserted that there is a Camp Office attached to senior officers of the organization and regular postings are made as the work of this organization is not as that of other organizations and much of it takes place covertly. The applicant was posted in place of one A.N. Yadav at camp office. The respondents have strongly denied that the applicant was made to do any domestic work.
11. Now we take up the issue of transfer of the applicant to Jodhpur, and subsequently to FIP Gadra. The applicant has alleged that it is on account of his refusal to work as Domestic Help to the then Secretary (R) late Ashok Chaturvedi at his post retiral residence. The learned counsel for the respondents produced the files in original which we have perused. From the study of the files, it appears that the applicant had not been discreet in his acts and behaviour as a result of which some security issues had been compromised. This has not been reported by the Former Secretary (R) but by other officers as early as in the year 2007. It was on this account it had been decided to transfer the applicant to a field area to further observe his conduct and that is why the applicant came to be transferred to Jodhopur where he was briefed and then he was deployed at Gadra, which is on the border of Pakistan. However, the fact which strikes us the most is that the applicant being an officer, who has assiduously followed this case, accepted this position for a period of seven years. It was always open to him to have taken recourse to what he had done in the instant case. We fail to understand that why he remained silent and filed this Original Application when the former Secretary (R) late Ashok Chaturvedi had retired on 31.01.2009. He further amended the OA when the Former Secretary (R) was on his death bed and was unlikely to survive. These vital aspects remained unexplained and lead to only one conclusion that the allegations have been leveled because a dead man is not there to defend himself. We close this discussion by holding that there is not even an iota of evidence anywhere for us to come to the conclusion that the applicant was made to work as a Domestic Help. To the contrary, there is much that could be ascribed to the motive of the applicant.
12. Insofar as issue no. 3 is concerned, we have again gone through the files relating to the circumstances leading to the compulsory retirement of the applicant. As we have already discussed that confidentiality and secrecy are the prime issues in the given nature of work of this organization. That is why the provisions of Rule 135 of the Rules have been made which, for the sake of clarity, are reproduced hereunder:-
135. Terminal benefits on compulsory retirement:
Any officer of the Organization may be compulsory retired on any of the following grounds, namely:
(a) his being exposed as an intelligence officer or his becoming unemployable in the Organization, for reasons of security, or
(b) disability or injuries received by him in the performance of his duties.
On the retirement of an officer under sub-rule (1), he may be granted:
pension based on the emoluments which he would have drawn had he remained in service until the normal age of superannuation and earned promotion, other than promotion by selection, due to him under these rules or the maximum emoluments he would have drawn in the grade in which he was permanent or regularly appointed at the time of his retirement had he continued to serve in that grade till the age of superannuation, provided that in no case such pension shall be less than twelve hundred and seventy-five rupees.
(ii) Family pension and death-cum-retirement gratuity admissible under the rules for the time being in force.
1. In addition to the pension, death-cum-retirement gratuity and family pension admissible under sub-rule (2), the person concerned may also be paid a resettlement grant not exceeding twelve times the monthly pay drawn by him immediately before his compulsory retirement.
2. The Head of the Organization may, at his discretion, permit the officer concerned to exchange the entire pension due to him under sub-rule (2) for a lump-sum which shall be equal to the commuted value of that amount admissible to a person retiring on attaining the normal age of superannuation.
13. It appears from above that in such circumstances where a person has been found compromising the security or is not being discreet in his behaviour and acts or in any other manner which may be prejudicial to the interest of the organization and to the nature of the operation, he has to be compulsorily retired besides the other conditions. We have perused from the file that even while being posted at the borders, the applicant had indulged in indiscreet behaviour which led to security being compromised. Further, we find substance in the argument of the respondents that even in the instant OA he has made references of houses serving a certain vital functions in such organization which compelled the respondents to make whole lot of structural changes in their locations and posting of personnel. It is significant to note here that the former Secretary (R) late Ashok Chaturvedi was the one person who spoke on behalf of the applicant when the matter of his compulsory retirement was being dealt. This completely falsifies the fulcrum of the entire allegation made by the applicant.
14. Now we come to the question as to whether the order of compulsory retirement has been passed is in the normal course of administration or it is a stigmatic by nature. We have no doubt in our mind that the compulsory retirement had been imposed upon the applicant on account of his indiscreet acts and behaviour. However, it is to be borne in mind that the terms of the retirement are more than generous to the applicant. Under the term of Rule 135(3), it has been presumed that the officer will have served his entire career and his pension is to be fixed at the last pay which he would have otherwise drawn including the increments and promotions he would have earned. Moreover, it was the former Secretary (R), who was instrumental in getting the matter of the applicant settled under Rule 135(3) that as a special measure he would draw full pay for a period of 12 months. The applicant would, thus, be drawing a pension of Rs.16,000/- per month which is a significant amount besides the settlement of other dues including the DCRG, Leave Encashment etc. etc. This shows that the organization is not ill disposed towards the applicant but has gone out of the way to make his post retiral life comfortable. It is the applicant, on the other hand, who has not still applied for his pension under the impression that he is likely to get a reprieve from the Tribunal. At the end, we would also like to hold that in a given nature of the organization and the details of the job, the organization has a mechanism by which such persons could be weeded out. However, to ameliorate their distress, we also find that more generous settlement of post retiral dues of the applicant has been made. This is an incident of service. In this regard, we would also like to refer to the case of Union of India Versus M.E. Reddy and Another [1980(2) SCC 15] in which the Honble Supreme Court referred the decision in the case of Shyam Lal versus State of U.P. [1955 (1) SCR 26] wherein a Bench of 5 Honble Judges of observed as follows:-
14. In the case of Shyam Lal v. State of Uttar Pradesh (1955) 1 SCR 26 this Court clearly held that compulsory retirement does not amount to removal or termination nor does it involve any stigma. In this connection, a Bench of 5 Hon'ble Judges of this Court observed as follows:-
"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 in 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 retirement has no stigma or implication of misbehaviour or incapacity."
"The more important thing is to see whether by compulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal. The answer is clearly in the negative. The second element for determining whether a termination of service amounts to dismissal or removal is, therefore, also absent in the case of termination of service brought about by compulsory retirement.
The foregoing discussion necessarily leads us to the conclusion that a compulsory retirement does not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311 of the Constitution or of Rule 55".
The above principle was further reiterated in the matter of T.G. Shivacharana Singh versus State of Mysore [AIR-1965-SC-280].
15. In the case of National Aviation Company of India Limited versus S.M. K. Khan [2009(5)SCC 732], Honble Supreme Court has held that where the order of compulsory retirement is made in pursuance of the rule/regulation which enables the competent authority to take a view that continuation of the employee in service will not benefit the organization or the pubic interest in the case where the employee is a government servant and a review may be made of the performance and the order of compulsory retirement may issue. This is valid instance and is not open to challenge where compulsory retirement is not by way of the punishment for a misconduct but is an action taken in pursuance of the valid condition of service enabling the employer to prepone the retirement. The principles of natural justice have no application. However, if it is by way of punishment then there is requirement of a departmental enquiry and in such cases it is a punishment. It differs from the first category of case on twin considerations (i) the employee has completed a particular number of service and is due for performance assessment that whether he has some utility for the employer or has become deadwood or a liability; (ii) the record of service may lead to the conclusion that the employee is not fit to be continued in service. Where such individual circumstances of misconduct become the basis for the order of compulsory retirement, it attracts rules of principle of natural justice. In para 23 of the order of this case, the Honble Supreme Court has held as under:-
23. The learned counsel for the respondent next submitted that recourse to `compulsory retirement' should be only in `public interest'; and that in this case, as neither the regulations nor the order of compulsory retirement referred to public interest, the compulsory retirement was vitiated. This contention has no merit. "Public interest" is used in the context of compulsory retirement of government servants while considering service under the state. The concept of public interest would get replaced by `institutional interest' or `utility to the employer' where the employer is a statutory authority or a government company and not the government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words `not in the interests of the institution' or `service not of utility to the employer' in the order of compulsory retirement as the regulation provides that no reason need be assigned.
16. In the case of Allahabad Bank Officers Association and Another versus Allahabad Bank & Others [1996(4) SCC 504), the question before the Court was that whether the order of compulsory retirement cast a stigma upon the petitioner and the Honble Supreme Court has held as under:-
5. The power to compulsorily retire a Government servant is one of the facets of doctrine of pleasure incorporated in Article 310 of the Constitution. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in the service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration. Generally speaking, Service Rules provide for compulsory retirement of a Government servant on his completing certain number of years of service or attaining the prescribed age. His service is reviewed at that stage and a dicision is taken whether he should be compulsorily retired or continued further in service. There is no levelling of a charge or imputation requiring an explanation from the Government servant. While misconduct and inefficiency are factors that enter into the account where the order is one of the dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held-and there is no duty to hold an enquiry-is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal they from the very basis on which the order is made, as pointed out by this Court in Shyamlal v. State of U. P., (1955) 1 SCC 26 : (AIR 1954 SC 369) and State of Bombay v. S. M. Doshi, AIR 1957 SC 892. Thus, by its very nature the power to compulsorily retire a Government servant is distinct and separate from the power to punish him by way of removal, dismissal etc. for misconduct. A Government servant who is compulsorily retired does not lose any part of the benefit it that he has earned during service. Thus, compulsory retirement differs both from dismissal and removal as it involves no penal consequences. Though compulsory retirement deprives a Government servant of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get pension that cannot be regarded in the eye of law as punishment as pointed out in the case of Shyamlal (supra) and Union of India v. M. E. Reddy, (1980) 2 SCC 15 : (AIR 1980 SC 563). Thus, compulsory retirement differs from dismissal and removal both in its nature and incidence or effects. Therefore compulsory retirement is not considered prima facie and per se a punishment and does not attract the provisions of Article 311. This Court in a series of decisions starting with Shyamlal's case (AIR 1954 SC 369) (supra) has held that compulsory retirement is neither a punishment nor a stigma; and, that can now well be regarded as settled legal position. But, if any stigma is attached to the order of compulsory retirement then it may be treated as an order of punishment in reality. So also, if a formal enquiry is made on an allegation of misconduct and a finding holding him guilty is recorded and thereafter the order of compulsory retirement is passed then such an order even when it does not contain any allegation or a stigmatic statement may be regarded as an order of punishment, attracting provisions of Article 311. The reason is that the Court would infer in such cases that the real intention of the Government was not to compulsorily retire its employee but to punish him.
6. In this case, there was no completion of a formal enquiry against Appellant No. 2 before passing the order of compulsory retirement nor he has been deprived of the service benefits already earned by him while in service. Therefore, what is to be considered is whether any stigma is attached to the order of compulsory retirement. In other words, what has to be seen is whether the order contains any charge or imputation against Appellant No. 2 with respect to his character suggesting moral turpitude or unsatisfactory conduct.
xxx xxx xxx
17. The above discussion of case law makes it clear that if the order of compulsory retirement casts a stigma on the Government servant in the sense that it contains a statement casting aspersion of his conduct or character, then the Court will treat that order as an order of punishment, attracting provisions of Article 311 (2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order, the Court would infer therefrom that the real intention of the Government was to punish the Government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the Government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it.
17. This position has been further reiterated by the Honble Supreme Court in the matter of Baikuntha Nath Das & Another versus Chief District Medical Officer, Baripada and Another [1992 (2) SCC 299] and in T.G. Shivacharana Singh versus State of Mysore (supra) wherein the Honble Supreme Court has held that it is for the State Government to consider whether the retirement was in public interest. The Honble Supreme Court has summed up the position in Baikuntha Nath Das & Another versus Chief District Medical Officer, Baripada and Another (supra) by holding as under:-
32. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is Passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasoanble 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.
Interference is permissible only on the grounds mentioned in (iii) above. This object has been discussed in paras 29 to 31 above.
18. The aforesaid principles enunciated by the Honble Supreme Court when applied to the facts of the instant case, clearly make out that this is not a case of compulsory retirement with stigma. Unemployablity is a condition of service which may attain the conduct of an employee for a number of reasons. Under these circumstances, there is compulsion on the part of the respondents authorities to remove the person in the interest of the organization and in the vital interest of the Nation. The applicant has attained that condition and, therefore, we feel that there is nothing in the order or on the record to suggest that the impugned order was stigmatic one and it calls for application of rules of natural justice.
19. Now we take up the question whether the rules of principles of natural justice would apply to the facts of the instant case. This task has been facilitated by discussion in respect of the preceding issue. We have already found that it is not a case of compulsory retirement in lieu of or by way of punishment or with a stigma. In view of the aforesaid clear findings, the question of applicability of principles of natural justice does not arise. Nor does it attract, as stated, the protection of Article 311 till so long as it is not being made as a measure of punishment without going through the gamut of departmental proceedings. It is not to be lost sight of that this is an instrumentality to keep an organization lean efficient and effective.
20. Now we take up the last of the issues. Considering the matter in its entirety, we are constrained to observe that the conduct of the applicant has been far from being clean. We are not in a position to comment on the enormous amount of ingratitude that the applicant has qua the former Secretary (R) who has admittedly been his patron. Yet, he waited for him to retire before making wild allegations against him which do not have even hint of evidence to support. Instead, the respondents have well succeeded in proving that the allegations made by the applicant are without substance. What surprises us is the manner in which the allegations were leveled as the applicant appears to have waited for the former Secretary (R) to retire and pass away from this world knowing fully well that he would not come back from the heavens to answer. We also take a note of the fact that the former Secretary (R) has been benefactor of the applicant being instrumental in getting the additional 12 months salary in favour of the applicant. After all such instances have to be taken in a philosophical manner.
21. In view of the facts and circumstances of the case, we find that this Original Application is totally without substance and without merit and the allegations are at best perjurious, perfidious and misconceived by nature. Hence, we dismiss the present Original Application without there being any order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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