Orissa High Court
Debendra Nath Behera vs The Additional Chief Secretary To on 4 November, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.9716 of 2021
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Debendra Nath Behera Aged about 56 years Son of Late Banchhanidhi Behera At:OSAP 6th Battalion Campus Qrs.No.G/12, P.O.: College Square, District: Cuttack ... Petitioner
-VERSUS-
1. The Additional Chief Secretary to Government of Odisha Home Department Lok Seva Bhawan Bhubaneswar.
2. Director General & Inspector General of Police Odisha, Buxibazar, Cuttack.
3. Special Director General of Police (Special Armed Police) Odisha, Bhubaneswar. ... Opposite Parties.
Counsel appeared for the parties:
For the Petitioner : Mr. Manoj Kumar Mishra, Senior Advocate assisted by Mr. Kuladananda Das, W.P.(C) No.9716 of 2021 Page 1 of 174 Mr. Sangram Senapati, Advocates For the Opposite parties : Ms. Saswata Pattnaik, Additional Government Advocate P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 18.07.2024 :: Date of Judgment : 04.11.2024 J UDGMENT The petitioner has come up before this Court craving to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India by way of filing this writ petition with the following prayer(s):
"It is, therefore, prayed that the Hon‟ble Court be pleased to allow the writ petition and call for the records and issue Rule NISI calling upon the opposite parties to show cause as to why the impugned order of premature retirement dated 05.01.2021 at Annexure-6 be quashed and why the petitioner shall not be reinstated into his previous service with all financial and consequential service benefits and if the opposite parties fail to show cause or show insufficient cause the said Rule be made absolute by issuing appropriate writ/writs;
And for this act of kindness, the petitioner shall as in duty bound ever pray."W.P.(C) No.9716 of 2021 Page 2 of 174
Facts:
2. The writ petitioner revealed that having joined as Sergeant of Police on 04.09.1985 got promoted to the rank of the Reserve Inspector of Police with subsequent promotion in the rank of the Assistant Commandant in Odisha Special Armed Police Cadre on 06.06.2008. Subsequently, he joined as the Commandant (In-charge) of 9th (SIR) Battalion, Kalahandi on 30.06.2018 pursuant to Notification dated 22.05.2018 issued by the Director General of Police, Odisha.
2.1. On the basis of allegation that there was illegal transportation of wooden planks (teak) in a Government bus belonging to Battalion to Keonjhar without permission with the help of his subordinate staff, which was alleged to have been seized by the Forest Department at Kesinga, a Disciplinary Proceeding was initiated vide Memorandum dated 11.02.2020 issued by the Government of Odisha in Home Department.
2.2. On lodging the First Information Report on 30.11.2019, investigation being conducted, charge-
sheet was submitted before the learned Judicial Magistrate First Class, Kesinga in 2(b) C.C. No.4 of 2019.
W.P.(C) No.9716 of 2021 Page 3 of 1742.3. On the basis of the aforesaid allegations, the petitioner was placed under suspension by the Home Department invoking Rule 12(1) of Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 (for convenience referred to as, "OCS (CCA) Rules") vide Office Order No.56790/HOME-SPS-CASE4-0009- 2019/SPS, Bhubaneswar dated 20.12.2019.
2.4. Pending both the criminal case as also the disciplinary proceeding, on completion of thirty years of qualifying service, in purported exercise of powers conferred under clause (a) of Rule 71 of the Odisha Service Code (for brevity, "OSC"), the Government of Odisha was pleased to retire the petitioner from service "with effect from 5th January, 2021 allowing three months‟ pay and allowances in lieu of three months‟ notice, as provided in first proviso to the said rule.
2.5. Said order of premature retirement is subject matter of challenge in the instant writ petition.
Counter affidavit of the opposite parties:
3. The petitioner was found to have a questionable probity. He, despite being a member of a highly disciplined armed force, was involved in transportation of illegally procured wooden planks from a wood smuggler in Government vehicle for which the Forest Department, Kesinga Range, Kalahandi, instituted a W.P.(C) No.9716 of 2021 Page 4 of 174 Criminal Case registered as 2(b) CC No.4 of 2019 (arising out of Forest Department Offence Report No. 340K/2019-20) in the Court of Judicial Magistrate First Class, Kesinga. Continuance of such an officer with highly questionable probity, specifically in an uniformed and disciplined service, would be detrimental to the discipline and morale of the force. For such act of ignominious misconduct being placed under suspension was facing charges in a departmental proceeding drawn up against him by the Government vide Memorandum No. 6671 HOME-SPS- CASE4-0004-2019/SPS, dated 11.02.2020.
3.1. As regards the averment that the order of his premature retirement during pendency of criminal case and the disciplinary proceeding is arbitrary, it is worthwhile to mention that regard must be had to the fact that an order of premature retirement is not one of punishment and is only aimed at assessing whether the employee in question has been rendered deadwood. Precisely, premature retirement is not punitive in character and nature like a criminal case or a disciplinary proceeding. It does not take away the pension and other post-retirement benefits of the petitioner. Hence, no fallibility could be imputed against the Government in accepting the recommendation of the Review Committee on being W.P.(C) No.9716 of 2021 Page 5 of 174 satisfied based on material available on record by the Government in Home Department in the interest of public.
3.2. Taking advantage of his official position, the petitioner, in the rank of Deputy Commandant of the Armed Battalion, while working as Commandant-in-Charge of 9th SIR Bn., Kalahandi since 2018, instructed the subordinate staff of the Battalion to arrange illegal wooden planks (Teak) for his personal use in construction of house at Keonjhar. On 30.11.2019, he ordered to transport illegally procured 34 pieces of hand-sawed wooden teak planks from Jaring in Kalahandi to Keonjhar. He instructed two Assistant Drivers and directed them to offload the wooden planks at Keonjhar enroute to Bhubaneswar. When the Assistant Drivers expressed their unwillingness to take the Government vehicle loaded with wooden planks, he threatened them of departmental action for not carrying out his orders. Besides, in order to ensure safe passage of the wooden planks, he sanctioned five days leave to a Havildar named Tanmaya Chardia and asked him to travel in the said vehicle to his home at Deogarh via Keonjhar. At Kesinga Railway crossing, the said vehicle was intercepted by the forest officials and during search they found 34 pieces of Teak wood planks. On enquiry, the drivers of the vehicle divulged W.P.(C) No.9716 of 2021 Page 6 of 174 that they were transporting these wooden planks to the house of In-charge Commandant at Keonjhar and all related documents were with the In-charge Commandant. When the forest officials sought to enquire, the petitioner avoided meeting them and later absconded. The forest officials seized the illegal wooden planks and registered the Forest Department Offence Report bearing No.340K/2019-20, dated 30.11.2019 and took the two Assistant Drivers and the Havildar in custody. Later, basing on the documentary evidence and statements of the accused persons, the Court of Judicial Magistrate, First Class, Kesinga took cognizance of the offence in 2(b) CC No.4 of 2019 and directed the Investigation Officer of the case to produce the main accused, i.e., the petitioner at whose behest wooden planks were being transported.
3.3. The incident was followed by a discreet departmental enquiry conducted by the then Inspector General of Police, Special Armed Police, Odisha, Bhubaneswar. In course of enquiry by the said officer evidence of involvement of the petitioner in the offence did come to fore, as a result of which he was placed under suspension by the Government of Odisha vide Home Department Office Order No.56790/ SPS, dated 20.12.2019.
W.P.(C) No.9716 of 2021 Page 7 of 1743.4. Notwithstanding both the criminal proceeding and the disciplinary proceeding were in progress, since the petitioner completed more than 30 years of qualifying service, and the OSC does not divest the Government off considering desirability of continuance of the employee in service, in exercise of powers conferred under Rule 71(a) of the OSC, on the basis of doubtful integrity of the petitioner because of abuse of official capacity enuring his personal gain, the Review Committee found the petitioner not to continue in service in the interest of public. Accordingly, the Order dated 05.01.2021 has been passed by the Additional Chief Secretary to Government in Home Department retiring the petitioner from service prematurely.
Hearing:
4. Since at the age of 56 years, the petitioner was made to retire prematurely and the pleadings are completed, at the stage of admission, on consent of learned counsel for respective parties, this matter is taken up for final hearing.
4.1. Heard Sri Manoj Kumar Mishra, learned Senior Advocate assisted by Sri Sangram Senapati, learned Advocate for the petitioner and Smt. Saswata Pattnaik, learned Additional Government Advocate.
W.P.(C) No.9716 of 2021 Page 8 of 1744.2. The matter is reserved on 18.07.2024 for preparation and pronouncement of judgment.
Contentions and submissions of respective parties:
5. Sri Manoj Kumar Mishra, learned Senior Advocate along with Sri Sangram Senapati, learned Advocate appearing for the petitioner opened with settled principle with respect to premature retirement that the objective of such an action is to weed out the deadwood in order to maintain the standard of efficiency and in the public interest. Nonetheless, absence of subjective satisfaction of the Review Committee based on entire service record renders such decision vitiated and tainted with arbitrariness being without any foundation. Under such situation, this Court is called upon to examine whether there has been seemly exercise power or actuated with extraneous consideration having tinge of mala fide.
5.1. Whereas steps were taken to bind the petitioner down with the outcome of the criminal case instituted for violation of provisions under Section 85 of the Odisha Forest Act, 1972 and Rules 4, 7, 10, 12 and 21 of the Odisha Timber and Other Forest Produce Transit Rules, 1980 and as also the disciplinary proceeding initiated by holding enquiry under Rule 15 of the OCS W.P.(C) No.9716 of 2021 Page 9 of 174 (CCA) Rules, it is imprudent to invoke provisions of clause (a) of Rule 71 of the OSC.
5.2. Making further submission, Sri Manoj Kumar Mishra, learned Senior Counsel has drawn attention of this Court to the Consolidated Information Sheet submitted by the Director General and Inspector General of Police, Special Armed Police, with respect to Performance Appraisal Report of five years with details of departmental proceeding and the entire service book vide Annexure-A/3 enclosed by the opposite party No.3 in his counter affidavit filed on 03.08.2023, to contend that besides being rewarded with cash prizes (14), the petitioner was conferred with Good Service Marks (44), appreciations (69) and commendation (34) for his sincere and honest discharge of duty and the Performance Appraisal Report discloses No Adverse remarks, yet, the Commandant, 9th SIR Bn., Kalahandi on 21.11.2020 in the said document, at the column with heading "Remarks of the Nominating Authority recorded that One Disciplinary Proceeding initiated vide Memorandum No.6671/SPS, dated 11.02.2020 is pending against him. Learned Senior Counsel then forcefully argued that notwithstanding such accolades in favour of the petitioner, the Review Committee, instead of undertaking scrutiny of entire service record, bearing in mind mere pendency of W.P.(C) No.9716 of 2021 Page 10 of 174 disciplinary proceeding against the petitioner could not have been whimsical in recommending the case of the petitioner for invocation of provisions of Rule 71(a) of the OSC.
5.3. Alleging that when the Departmental Promotion Committee was about to meet on 14.02.2020, a false criminal case apparently has been foisted with ill- design of certain personnel in the Organisation. The Forest Department Offence Report No.340K of 2019-20 assuming the petitioner to have been involved in alleged illegal transportation of the hand-sawn wood pieces via National Highway No.26. The Departmental Promotional Committee considered the cases of the Odisha Armed Police (Senior Branch Officers) in the rank of Deputy Commandant for promotion to the rank of Commandant in the Odisha Armed Police (Supertime Scale). The Departmental Promotion Committee in its meeting held on 14.02.2020, considered the case of the petitioner for promotion and kept its findings in sealed cover, because of pendency of the disciplinary proceeding and the criminal case.
5.4. Sri Manoj Kumar Mishra, learned Senior Advocate proceeded to submit that the Review Committee without awaiting outcome of the proceedings which were instituted on the identical charges in connection with the same transaction, the decision for premature W.P.(C) No.9716 of 2021 Page 11 of 174 retirement is not only premature but also irrational approach actuated with extraneous reasons.
5.5. Analysing the documents enclosed to the counter affidavit filed by the Deputy Commandant, Special Armed Police, Headquarters, the learned Senior Counsel in order to persuade this Court has taken to details of rewards recorded in the service book which makes it transparent that it contains details of awards received, trainings/advance trainings undertaken, and increments with transfers to different places to function in very many capacities. While the service record is one of No Adverse Remarks, he has been rated "very good" officer. Then Sri Manoj Kumar Mishra, learned Senior Advocate contended that merely based on statement of third parties, a false case was foisted against the petitioner, which could not be the basis for invocation of provisions of Rule 71 of the OSC throwing the commendable work done throughout the service career to the winds.
5.6. The petitioner was no way connected to such alleged transportation. Neither the disciplinary proceeding nor did the criminal case come to its logical end on the date of Proceeding of Review Committee. Abandoning such currency of proceeding, which the petitioner has been facing, the Government of Odisha should not have accepted the decision of the Review Committee by W.P.(C) No.9716 of 2021 Page 12 of 174 exercising power under Rule 71 of the OSC. It is vehemently contended that circumventing the procedure laid down in the OCS (CCA) Rules, it is unwholesome for the Home Department to have dispensed with the service of an officer who has been awarded many times and rated very good officer. The subterfuge used by the Department by applying provisions of Rule 71(a) of the OSC is unwarranted.
5.7. Sri Manoj Kumar Mishra, learned Senior Counsel laid stress on the Judgment dated 15.05.2023 passed in 2(b) C.C. No.4 of 2019 [TR No.8 of 2021 in O.R. No.340K of 2019-20, dated 30.11.2019] rendered by the learned Judicial Magistrate First Class, Kesinga, copy of which is enclosed to I.A. No.9251 of 2023. Said case ended with the following observation:
"7. *** Further it is reveals from the case record and evidences, the IO had also accompanied with the complainant on the alleged date and seized the articles along with complainant. Except P.W.1 and 2, no other independent witnesses have been examined in this case, though Ld. Counsels for the accused persons have drawn a suggestion both the witnesses are interested witnesses and working under Forest department. Although the informant and IO are not same and one person but they jointly had conducted patrolling duty on the alleged date as reveals from evidences. The seized W.P.(C) No.9716 of 2021 Page 13 of 174 articles have not been produced before the court. It is settled principle of law that the non-production of the seized material is to be explained satisfactorily by the prosecution failing of which an adverse inference is available with the court to draw as if no such seizure was effected. Again during trial the informant as well as the IO have failed to prove, that they had conducted patrolling duty on the alleged date. Therefore, I am of the opinion that there is no opportunity lies with the prosecution to establish its case beyond all reasonable doubt. So it is a fit case where the accused is entitled for acquittal.
8. Regard being had to the entire evidence on record and the discussion made thereupon I hold the accused persons not guilty for the offence Under Rule 21 of OT & OFPT Rules, 1980 labelled against them and therefore, are acquitted there from as per the provision under Section 248(1) of the Cr.P.C. they be set at liberty forthwith.
Enter this case as "Mistake of fact"."
5.8. Objecting to the action of the opposite parties in passing Order of premature retirement dated 05.01.2021 at the age of 56 years and the case of the petitioner was likely to be considered for promotion, Sri Manoj Kumar Mishra, learned Senior Advocate urged that such course adopted by the Government of Odisha in Home Department entails harassment and discomfiture. The very exercise of power under Rule 71 of the OSC to circumvent process already initiated W.P.(C) No.9716 of 2021 Page 14 of 174 under the OCS (CCS) Rules and the Forest Act is only to tarnish his image in the society.
5.9. It is contended that the entire service record of the petitioner should have been scanned meticulously by the Review Committee before taking drastic step against the petitioner and undue haste should not have been shown in getting the petitioner retired prematurely. Sri Manoj Kumar Mishra, learned Senior Advocate submitted that the method to remove the petitioner smacks motivated action in order to deprive him of to enjoy the fruits of hard work since 1985 and awards earned throughout his service career.
5.10. He relied on the following decisions to buttress his arguments:
(i) S. Ramachandra Raju Vrs. State of Odisha, (1994) Supp (3) SCC 424 = (1994) Supp.2 SCR 828.
(ii) State of Gujarat Vrs. Umedbhai M. Patel, (2001) 3 SCC 314 = (2001) 2 SCR 170.
(iii) State of U.P. Vrs. Vijay Kumar Jain, (2002) 3 SCC 641 = (2002) 2 SCR 439.
(iv) Nand Kumar Verma Vrs. State of Jharkhand, (2012) 3 SCC 580 = (2012) 1 SCR 504.
(v) Rajesh Gupta Vrs. State of Jammu and Kashmir (2013) 3 SCC 514 = (2013) 1 SCR 557.
W.P.(C) No.9716 of 2021 Page 15 of 174(vi) Ajit Kumar Mohapatra Vrs. State of Odisha, W.P.(C) No.37932 of 2021, vide Judgment dated 31.10.2023, reported at 2023 SCC OnLine Ori 6135.
5.11. Referring to documents at Annexure-10 series it is submitted that had the Review Committee considered the appreciations and commendations of the Superior Authorities right from 2004 till 2018 with reference to the entire service record in proper perspective without being guided by mere allegation of forest offence leading to the criminal case and the disciplinary proceeding, invocation of provisions of Rule 71 of the OSC would not have been recommended. The objective satisfaction of the Review Committee with subjectivity of accolades and remarks of the Superior Authorities should have been weighed in taking rightful decision in favour of the petitioner.
5.12. Sri Manoj Kumar Mishra, learned senior counsel, therefore, submitted that citing only one incident based on the statement of third parties, which subsequently turned out to be "mistake of fact" by a judicial process of adjudication, the Home Department adopting alternative device contemplated under Rule 71 of the OSC in deference to Rule 13 read with Rule 15 of the OCS (CCA) Rules is not only superfluous and fanciful but also sounds illogical and irrational. Under the aforesaid premises, he made fervent prayer on W.P.(C) No.9716 of 2021 Page 16 of 174 behalf of the petitioner to quash the impugned Order of premature retirement dated 05.01.2021 vide Annexure-6 and allow the petitioner to enjoy the consequential benefits.
6. Refuting all the averments and contentions of the petitioner and in reply to the arguments advanced by Sri Manoj Kumar Mishra, learned Senior Counsel, Smt. Saswata Pattnaik, learned Additional Government Advocate appearing for the opposite parties, would submit that it cannot be denied or gainsaid that the power is vested in the Government of Odisha in Home Department to invoke Rule 71 of the OSC notwithstanding pending proceeding under the OCS (CCA) Rules. While functioning as Commandant (in-Charge), he abused his position by instructing the Drivers of the vehicle [TATA Starbus bearing Registration No.OD-05-AD-0954] and the Havildar to offload wooden planks at his desired place for personal use. Such grave misconduct is treated as detrimental to public interest. The Review Committee decided the case of the petitioner in such fact-situation and dispensed with lengthy process of the trial and the disciplinary proceeding particularly when the petitioner completed more than 30 years of service and was at the age of 56 years. Therefore, the recourse W.P.(C) No.9716 of 2021 Page 17 of 174 adopted by the Home Department cannot be doubted or questioned in the writ jurisdiction.
6.1. On the date of decision taken by the Review Committee, criminal case being 2(b) C.C. No.4 of 2019 was pending and the disciplinary proceeding initiated under Rule 15 read with Rule 13 of the OCS (CCA) Rules was also continuing. On 29.12.2020 (Annexure-
12) the Review Committee observed as follows:
"Government of Odisha Home Department Proceedings of the Review Committee to consider premature retirement of Government servants of Home Department. Meeting dated, the 29th December 2020.
Meeting of the Premature Review Committee for Group-A (SB) and above rank officers of the Home Department was held under the chairmanship of the Chief Secretary to review the services of following officers:
1. Sri Ekanta Priya Nayak, OAPS Commandant at present, under suspension.
2. Sri Debendra Nath Behera, OAPS, Deputy Commandant at present, under suspension.
3. Sri Gopabandhu Mallick, D.I.G. of Prisons.
The Principal Secretary, Home Department, D.G. & I.G. of Police, the Controlling officer of the OAPS cadre, D.G. of Prisons & DCS, Odisha, the Controlling officer of the Odisha Jail Service Cadre and the representative of G.A. & P.G. Department are members of the Committee.
W.P.(C) No.9716 of 2021 Page 18 of 174The Review Committee reviewed the cases of the above officers and observed as follows:
*** Sri Debendra Nath Behera, OAPS
1. There is one criminal case pending against Sri Debendra Nath Behera, OAPS, Deputy Commandant, at present under suspension for illegal transfer of forest wood in Government vehicle. His continuance in service will be detrimental to public interest.
2. He has been placed under suspension vide Home Department Order No.56790/SPS dated 20.12.2019. One Disciplinary proceeding initiated against him vide Memorandum No.6671/SPS dated 11/02/2020 for his involvement in illegal transportation of timber in Government vehicle without permission using his staff and the said Disciplinary proceeding is pending.
3. He has completed 35 years of service and already attained the age of more than 56 years and is going to retire on attaining the age of superannuation on 31.07.2024. There has been no review of service in respect of him earlier.
*** While deliberating on the above cases, the Committee also took into account paragraph 13(iii) of the General Administration & Public Grievance Department Circular issued on 24.09.2019 which explains that Reports of conduct unbecoming of a Government servant may also form the basis for premature retirement. The concept W.P.(C) No.9716 of 2021 Page 19 of 174 emanates from two decisions of the Hon‟ble Apex Court, extracted below in brief, for reference.
The observation of the Hon‟ble Supreme Court in S. Ramachandra Raju Vrs. State of Odisha (Appeal (civil) 5815 of 1994)1 was, „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 to public service and injurious to public interest.‟ The Hon‟ble Supreme Court had observed in State of U.P. and others Vrs. Vijay Kumar Jain, (Appeal (Civil) 2083 of 2002)2 that, „If conduct of Government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the Government has an absolute right to compulsorily retire such an employee in public interest.‟ This, hence constitutes basis for consideration of premature retirement of the above three officers on the grounds that their conduct is highly unbecoming of a Government servant. Their further continuance will not be in public interest as it lowers the image of Government in the eyes of public, thereby compromising efficiency in public service.
In view of the above, the Review Committee recommended for premature retirement of the above 1 Reported at (1994) Supp (3) SCC 424 = (1994) Supp.2 SCR 828. 2 Reported at (2002) 3 SCC 641 = (2002) 2 SCR 439.
W.P.(C) No.9716 of 2021 Page 20 of 174officers on paying three months‟ pay and allowances in lieu of statutory notice of three months."
6.2. As the Review Committee has taken decision on consideration of material on record having due regard to the modalities specified in the Instructions vide Letter in File No.27037-GAD-SC-GCS-0089-2016/ Gen., dated 24.09.2019, this Court has little scope to show indulgence in exercise of power of judicial review under Articles 226 and 227 of the Constitution of India.
6.3. Learned Additional Government Advocate has strenuously argued that the order of premature retirement is passed invoking Rule 71 of the OSC is not to circumvent the provisions contained in Rule 13 read with Rule 15 of the OCS (CCA) Rules, rather the object of premature retirement is in the public interest inasmuch as continuance of the Government servant, who is considered as a person of doubtful integrity, would pose damage to the public interest. Neither the OSC nor the OCS (CCA) Rules do restrict the employer to get the employee like the petitioner retired prematurely on allegation of serious misuse of official capacity. Conjoint reading of provisions of Rule 71 of the OSC and Rule 13 read with Rule 15 of the OCS (CCA) Rules does not imply that the Government are denuded of powers to exercise to pass orders of W.P.(C) No.9716 of 2021 Page 21 of 174 premature retirement even as the disciplinary proceedings and/or the criminal case are/is pending.
6.4. Amplifying her stand to justify the action taken by the Home Department based on the recommendation of the Review Committee, Smt. Saswata Pattnaik, learned Additional Government Advocate submitted that when the Government servant like the petitioner at the fag end of his service career is seen to have indulged in corrupt practices by abusing his official position while he was manning the post of Commandant (In-charge), his continuance further in the Government service would lead to incalculable damage.
6.5. It is the submission of the learned Additional Government Advocate that while compulsory retirement is contemplated under Rule 13 of the OCS (CCA) Rules, which is in the nature of major penalty/punishment, the premature retirement is within the fold of Rule 71 of the OCS(CCA) Rules, which in clear terms, indicates that it does not pose as stigma. The recommendation of the Review Committee as accepted by the Home Department cannot be faulted with inasmuch as the action of the Government of Odisha on consideration that the employee had already served this State for more than 35 years and attained the age of 56 years. Had the petitioner continued with the service, he would have to W.P.(C) No.9716 of 2021 Page 22 of 174 face the disciplinary proceeding even after retirement. Under such eventuality, major penalty could have been inflicted, had he not been able to prove "not guilty" as is well-known that in the disciplinary proceeding it is the preponderance of probabilities which weighs in reaching at the conclusion unlike beyond all reasonable doubt" in the criminal case. Merely because the petitioner has got absolved in the criminal proceeding, it would not tantamount to say that he would be successful in the disciplinary proceeding.
6.6. She vehemently contested that the allegation that the service record of the petitioner was not considered by the Review Committee is far from truth. Though there were commendations by the Superior Authorities in his favour, the petitioner was also earned a censure during his service career. The last incident in the year 2019 led to institution of criminal case and also initiation of the disciplinary proceeding. The remarks of the Review Committee was objective one as is abundantly manifest from Annexure-A/3 enclosed to the counter affidavit dated 02.08.2023 filed by opposite party Nos.1 to 3. The Review Committee, having found the petitioner of doubtful integrity, recommended his case for invocation of provisions under Rule 71 of the OSC.
W.P.(C) No.9716 of 2021 Page 23 of 1746.7. Smt. Sawata Pattnaik, learned Additional Government Advocate, has placed heavy reliance on the Circular issued by the General Administration and Public Grievance Department vide File No.27037--GAD-SC- GCS-0089-2016/Gen., Bhubaneswar dated 24.09.2019, relevant paragraphs of which read as under:
"***
2. In the meanwhile, different judicial pronouncements have been delivered based upon new ideas and principles to consider premature retirement on the ground of doubtful integrity or inefficiency. It is accordingly decided by the Government to prescribe the following instructions afresh by superseding the instructions issued earlier in General Administration and Public Grievance Department Circular No.30495 dated 24.11.1987.
3. With a view to ascertain whether the Government servant would be retained in service or retired from service in the public interest, there is absolute need for periodical review of performance of Government servants. Provisions in this regard are contained under proviso to clause (a) of Rule 71 of Odisha Service Code. Government have accordingly decided that the following instructions/procedures shall henceforth be followed by the authorities empowered to conduct reviews or issue orders retiring an employee prematurely as provided in the Proviso to Clause
(a) of Rule 71 of the Odisha Service Code, on his W.P.(C) No.9716 of 2021 Page 24 of 174 completing 30 years of qualifying service of attaining 50 years of age and on his attaining 55 years of age.
4. The cases of Group-A & Group-B Officers on their completing 30 years of qualifying service or attaining 50 years of age and on their attaining 55 years of age, as the case may be, on the 31st March, 30th June, 30th September and the 31st December of a year shall be reviewed by the Review Committees constituted in pursuance of these instructions. Similarly the cases of Group-C Officers and Group-D employees shall be reviewed on the 30th June and the 31st December of the year by the relevant Review Committee.
***
6. The criteria to be followed by the Committee in making their recommendations would be as follows:
(a) Government employees whose integrity is doubtful, will be retired.
(b) Government employees who are found to be ineffective will also be retired. The basic consideration in identifying such employees should be the fitness/competence of the employees to continue in the post which he/she is holding.
(c) While the entire service record of an Officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness, if his service during the preceding 5 years or where he has W.P.(C) No.9716 of 2021 Page 25 of 174 been promoted to a higher post during that 5 year period, his service in the higher post, has been found satisfactory.
Consideration is ordinarily to be confined to the preceding 5 years or to the period in the higher post, in case of promotion within the period of 5 years, only when retirement is sought to be made on grounds of ineffectiveness.
(d) Ordinarily no employee should be retired on grounds of ineffectiveness if he is retiring on superannuation within a period of one year from the date of consideration of the case. It is clarified that in a case where there is a sudden and steep fall in the competence, efficiency or effectiveness of an officer, it would be open to review his case for premature retirement in the year preceding retirement.
The above instruction is relevant only when an employee is proposed to be retired on the ground of ineffectiveness, but not on the ground of doubtful integrity. The damage to public interest could be marginal if an old employee, in the last year of service, is found ineffective; but the damage may be incalculable if he is found corrupt and demands or obtains illegal gratification during the said period for the tasks he is duty bound to perform.
*** W.P.(C) No.9716 of 2021 Page 26 of 174
9. Premature retirement can be ordered in public interest only and not as a penalty to the employee concerned. Compulsory retirement is one of the major penalties listed under Rule 13 of the Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 and before it is imposed on any employee, the procedure outlined in the said Rules for imposition of major penalties must be complied with. Premature retirement under Clause (a) of Rule 71 of the Odisha Service Code is not and must not be used as a substitute that can be resorted to more conveniently. In other words, where it appears that any employee is guilty of misconduct or negligence in duty and that he would probably have been compulsorily retired had disciplinary proceedings been initiated against him, the proper course would be to initiate such proceeding instead of trying to circumvent the prescribed procedure and thereby extinguishing the employee‟s right of defending himself against the charge of misconduct or negligence. Premature retirement can only be ordered where it is obvious that retention of the employee in service will not be in public interest.
10. It will not be in public Interest to retain an employee in service if--
(a) he is clearly lacking in integrity, or
(b) although his integrity is not in doubt, his physical or mental condition is such as to make him inefficient for further service, or W.P.(C) No.9716 of 2021 Page 27 of 174
(c) even though his work in a lower grade was satisfactory, he clearly lacks in standard of efficiency required to discharge the duties of the post he presently holds.
11. The objective of the review is to weed out persons of doubtful integrity or inefficiency from public service. In order however that no such decision is taken arbitrarily or without very careful appraisal of facts, the Review Committee shall, wherever it recommends premature retirement of an employee, record the reasons of its findings in adequate detail.
***
13. (i) In every review, the Committee in each case shall consider the entire service record. The expression „service record‟ implies all relevant records and hence the review need not be confined to the consideration of ACR/PAR dossier. The personal file of the Officer may contain relevant materials. Similarly the work and performance of an Officer can also be assessed by taking into account the files dealt with by him or any papers or reports prepared and submitted by him.
(ii) As far as considering integrity of an employee is concerned, actions or decisions taken by the employee which do not appear to be above board, complaints received against him or suspicious property transactions for which there may not be sufficient evidence to initiate departmental W.P.(C) No.9716 of 2021 Page 28 of 174 proceedings, may be taken into account. The following observations of Hon‟ble Supreme Court in the case S. Ramachandra Raju Vrs. State of Odisha3 passed while upholding compulsory retirement need to be kept in view at the time of deciding each case.
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 to public service and injurious to public interest."
(iii) The reports of conduct unbecoming of a Government servant may also form the basis for compulsory retirement. As per the judgment of Hon‟ble Supreme Court in State of U.P. and others Vrs. Vijay Kumar Jain, Appeal (Civil) 2083 of 20024:
If conduct of a Government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the Government has an absolute right to compulsorily retire such an employee in public interest.
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15. It seems to be the practice in some organizations to consult the General Administration (Vigilance) 3 Reported at (1994) Supp (3) SCC 424 = (1994) Supp.2 SCR 828. 4 Reported at (2002) 3 SCC 641 = (2002) 2 SCR 439.W.P.(C) No.9716 of 2021 Page 29 of 174
Department with a view to ascertaining if any enquiry into the integrity of employees whose cases are due for review is under way. For purposes of the review, facts already available on the date of the review should alone be taken into account. If the General Administration (Vigilance) Department has already submitted a report about any employee, that report can no doubt be taken in to account, but to consider enquires that have not been completed will amount to prejudging the issue. If the enquiry ultimately leads to a reasonable inference of lack of integrity, the employee concerned can be proceeded against either departmentally or under the criminal law, but it would not be correct to conclude that an employee is lacking in integrity merely because some allegations against him are under enquiry. In other words, allegations which have not been enquired into or in respect of which enquiry is not complete should, generally speaking, be ignored. Even in regard to allegations which have been enquired into by the Vigilance Organisation, a conclusion of lack of integrity may not be drawn straightway, the facts of the case should be carefully considered and it should be examined if the ends of justice will not be better served by a departmental proceeding. The Rule, normally should be that before any such conclusion is drawn, the explanation of the employee concerned should have been considered. It is only in exceptional cases, for example cases where the employee‟s lack of integrity is obvious, that the review may be conducted without considering his explanation and on the basis of an exhaustive report of enquiry by the Vigilance Organisation or W.P.(C) No.9716 of 2021 Page 30 of 174 any senior officer. This exception to the normal rule should be invoked only where the Committee is satisfied that the allegations are serious and beyond doubt and that public interest requires the employee‟s immediate exit from service.
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19. Since no stigma is attached to an employee retired prematurely, his service should be certified as satisfactory for purposes of pension, while preparing pension documents of any such employee, the following instructions may be kept in view:
(a) Where an employee is served with a notice, he will be deemed to have retired on the date following the date on which the period of 3 months from the date of the service of the notice expires, if, for example, the period of 3 months following the service of the notice expires on the 5th of any month, the employee would be deemed to have retired with effect from the 6th of that month.
(b) Where, in lieu of notice 3 months‟ pay and allowance (no allowance other than Dearness Allowance is payable) are paid, the date specified in the order shall be deemed to be the date on which the employee has retired.
(c) Since 3 months‟ pay and allowances are paid in lieu of the notice, the employee will be entitled to pension from the date specified W.P.(C) No.9716 of 2021 Page 31 of 174 in the order in addition to the pay and allowance paid to him.
(d) The pay and allowances payable in lieu of the notice will be calculated at rates at which he/she drew pay and allowances immediately before retirement.
(e) Earned leave not exceeding 300 days at the credit of the employee on the date of premature retirement shall be en-cashed.
(f) The employee will be entitled to draw Travelling Allowance for journey from the last station of duty to his home town in accordance with Rule 120 of the Orissa Travelling Allowances Rules.
(g) The entitlement of the employee to retain the official accommodation supplied to him will be governed by item 2(b) of the Table under Rule 107A(i) of the Odisha Service Code.
20. It is held by the Hon‟ble Supreme Court that, no show cause notice need be issued to any Government servant before a notice of retirement is issued to him under the aforesaid provisions. The appropriate authority should bona fide form an opinion that is in the public interest to retire the Government servant in exercise of the powers conferred by that provision and this decision should not be an arbitrary decision or should not be based on collateral grounds. Accordingly, in every case where it is proposed to retire a Government servant in exercise of the powers conferred by the said rule, the appropriate W.P.(C) No.9716 of 2021 Page 32 of 174 authority should record in the file its opinion that it is necessary to retire the Government servant in pursuance of the aforesaid rule in the public interest. The order to be served on the Government servant would of course be on the form prescribed for the purpose.
21. It is accordingly therefore, requested to ensure holding of Review Committee Meetings regularly as per these instructions for effective functioning of Government offices by weeding out persons of doubtful integrity or patent inefficiency from public service. Suitable instructions may also be issued to all the Offices functioning under your control to hold review meeting positively in scheduled time without failure.
22. For the purpose of this circular, the expression "APPROPRIATE AUTHORITY" means the appointing authority.
***"
6.8. It evinces from the aforesaid circular that notwithstanding clean service record throughout his career, even a single allegation leading to believe doubtful integrity" and corrupt practices, order of premature retirement could be passed.
6.9. Ms. Saswata Pattnaik, learned Additional Government Advocate submitted that the Review Committee in its meeting dated 29.12.2020 has considered the case of the petitioner for premature retirement by perusing W.P.(C) No.9716 of 2021 Page 33 of 174 the entire service record as well as the remarks of the nominating authority, who had observed doubtful integrity and brought on record the fact of pendency of criminal case against the petitioner for instructing drivers and havildar to transport wooden plank (teak) with due permit. Simultaneous proceedings (criminal case as well as disciplinary proceeding) are an indicator for construing that the conduct of the petitioner is highly unbecoming of a Government servant which weighed in the mind of the Review Committee to consider his continuance to be against public interest as it lowers image of the Government in the eyes of public.
6.10. Reference is also made by Smt. Saswata Pattnaik, learned Additional Government Advocate to the Order No.30443-HOME-SPS-CASE1-0020-2020/SPS, dated 14.09.2020 (Anenxure-9) of the Home Department, which was passed in compliance of direction contained in the Order dated 30.07.2020 in W.P.(C) No.17590 of 2020, whereby the Government of Odisha accepted recommendation of the Review Committee not to revoke order of suspension clamped under Rule 12 of the OCS (CCA) Rules by Office Order No.56790/SPS, dated 20.12.2019 in view of the fact that serious allegations were levelled against the petitioner and there was every possibility to influence the official W.P.(C) No.9716 of 2021 Page 34 of 174 witnesses. In furtherance to her submission, she referred to statement of the Deputy Subedar recorded on 06.12.2019 by Deputy Commandant (Hqrs), which forms part of documents at Annexure-A/3 to the counter affidavit filed by the opposite parties on 03.08.2023, who appears to have corroborated the possibility of truthfulness of the incident. He has stated to have transcripted the voice of the petitioner instructing one Nabin Sahu of Keonjhar over telephone for facilitating offloading the goods. A document showing "transcription of mobile phone conversation between Commandant in-Charge, 9th SIRB, Kalahandi, mobile 9438519338 and A.D.525 Nabin Sahu, mobile 7008870636 at about 8 p.m. on 30.11.2019". Stating thus, she argued that there is no prohibition in continuation of the disciplinary proceeding even if the criminal proceeding is under progress. Therefore, had the disciplinary proceeding continued there was every likelihood that the petitioner could be inflicted with punishment as contemplated under Rule 13 read with Rule 15 of the OCS (CCA) Rules. In such eventuality after the retirement of the petitioner on attaining superannuation, he would have faced difficulty in getting the pension. Nevertheless, the Review Committee while undertaking exercise under Rule 71 of the OSC had taken a benevolent decision to retire the petitioner prematurely so that such order would W.P.(C) No.9716 of 2021 Page 35 of 174 not affect the petitioner to get retirement benefits under the Odisha Civil Services (Pension) Rules.
6.11. She has relied on the decisions of the Supreme Court of India in Baikuntha Nath Das Vrs. Chief District Medical Officer, Baripada, (1992) 2 SCC 299 and Union of India Vrs. Dulal Dutt, (1993) 2 SCC 179 and submitted that it is the prerogative of the Government on the basis of subjective satisfaction to take decision on premature retirement invoking provisions of Rule 71 of the OSC. This Court need not interfere with the order of premature retirement unless mala fide is alleged with substance. In the present case, the petitioner has not arrayed the person as party to substantiate mala fide, in absence of which this Court would not be in a position to deal with such a stance as laid in Captain Pramod Kumar Bajaj Vrs. Union of India, (2023) 2 SCR 30. The finding of the Review Committee cannot, therefore, be said to be based on no evidence or tainted with mala fides.
6.12. Smt. Saswata Pattnaik, learned Additional Government Advocate urged that the acceptance of recommendation of the Review Committee for premature retirement of the petitioner cannot be said to be arbitrary or fallacious. The Review Committee had taken into account entire record as maintained on the date of taking decision, i.e., 29.12.2020. By then W.P.(C) No.9716 of 2021 Page 36 of 174 cognizance in the criminal case was taken and the disciplinary proceeding was drawn up. No fault can be attributable to the Review Committee while considering that the petitioner was of doubtful integrity. Thus, there is no material to justify on behalf of the petitioner to contend that there was non- application of mind. Under such premises, Smt. Saswata Pattnaik, learned Additional Government Advocate urged to sustain the impugned Order of premature retirement dated 05.01.2021, particularly when the petitioner would have retired by now on attaining age of superannuation had he continued in service.
Relevant provisions:
7. Rule 71 of the Odisha Service Code reads as under:
"71. Retirement of Government servant.--
(a) Except as otherwise provided in the other clause of this Rule the date of compulsory retirement of Government servant, except a ministerial servant who was in Government servant on the 31st March, 1939 and Class-IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55 years of the age in order to determine whether he or she should be allowed to remain in service up to the date of the completion of the age of W.P.(C) No.9716 of 2021 Page 37 of 174 58 years or retired on completing the age of 55 years in public interest:
Provided that a Government servant may be retired from service any time after completing 30 years‟ qualifying service or on attaining the age of fifty years, by giving a notice in writing to the appropriate authority at least three months before the date of which he wishes to retire or by giving the said notice to the said authority before such shorter period as Government may allow in any case.
It shall be open to the appropriate authority to withhold permission to a Government servant who seek to retire under this rule, if he is under suspension or if enquiries against him are in progress.
The appropriate authority may also require any officer to retire in public interest any time after he has completed thirty years‟ qualifying service or attained the age of fifty years, by giving a notice in writing to the Government servant at least three months before the date on which he is required to retire or by giving three months‟ pay and allowances in lieu of such notice:
Provided further that the Allopathy Medical Officers belonging both periphery and Teaching Cadre under Health and Family Welfare Department shall be retained in service up to the age of sixty years."
7.1. Rules 13 and 15 of the OCS(CCA) Rules stand thus:W.P.(C) No.9716 of 2021 Page 38 of 174
"13. Nature of penalties.--
The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:
(i) fine;
(ii) censure;
(iii) withholding of increments (without cumulative effect) (iii-A) withholding of promotion;
(iv) recovery from pay of the whole, or part of any pecuniary loss caused to Government, or to a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by Government, or to a local authority set up by an Act of Parliament or of the Legislature of a State, by negligence or breach of orders.
(v) suspension;
(vi) reduction to a lower service, grade or post or
to a lower time-scale or to a lower stage in a time scale;
(vi-A) withholding of increments (with cumulative effect)
(vii) compulsory retirement;
(viii) removal from service which shall not be a disqualification for future employment;
W.P.(C) No.9716 of 2021 Page 39 of 174(ix) dismissal from service which shall ordinarily be a disqualification for future employment:
Provided that the penalty of fine shall be imposed only on Group-D Government servants.
Explanation.--
The following shall not amount to a penalty within the meaning of this Rule--
(a) Withholding of increments of a Government servant for failure to pass a departmental examination in accordance with the rules or orders governing the service or post or the terms of his appointment.
(b) Stoppage of a Government servant at the efficiency bar in the time scale on the ground of his unfitness to cross the bar.
(c) Non-promotion, whether in a substantive or officiating capacity, of a Government servant, after consideration of his case, to a service, grade or post for promotion to which he is eligible.
(d) Reversion to a lower service, grade or post of a Government servant officiating in a higher service grade or post on the ground that he is considered, after trial, to be unsuitable for such higher service, grade or post, or on administrative grounds unconnected with his conduct.
(e) Reversion to his permanent service, grade or post of a Government servant appointed on W.P.(C) No.9716 of 2021 Page 40 of 174 probation to another service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation.
(f) Replacement of the services of a Government servant whose services have been borrowed from the Central or State Government or an authority under the control or a State Government at the disposal of the authority which had lent his services.
(g) Compulsory retirement of a Government servant in accordance with the provision relating to his superannuation or retirement.
(h) Termination of the services--
(i) of a Government servant appointed on probation during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation;
or
(ii) of a temporary Government servant in accordance with the terms of his appointment; or
(iii) of a Government servant employed under an agreement in accordance with the terms of such agreement.
15. Procedure for imposing penalties.--
W.P.(C) No.9716 of 2021 Page 41 of 174(1) Without prejudice to the provisions of the Public Servant (Inquiry) Act, 1950, no order imposing on a Government servant any of the penalties specified in Clauses (vi) to (ix) of Rule 13 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided.
(2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit, within such time as may be specified by the disciplinary authority, not ordinarily exceeding one month a written statement of his defence and also to state whether he desires to be heard in person.
Explanation.--
In this sub-rule and in sub-rule (3) the expression Disciplinary Authority shall include the authority competent under these rules to impose upon the Government servant of the penalties specified in Clauses (i) to (v) of Rule 13.
(3) The Government servant shall, for the purpose of preparing his defence, be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, W.P.(C) No.9716 of 2021 Page 42 of 174 provided that such permission may be refused if, for reasons to be recorded in writing in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against interest of the pubic to allow him access thereto.
(4) On receipt of the written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself enquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a board of inquiry or an enquiring officer for the purpose.
Provided that if, after considering the written statement of defence, the disciplinary authority is of the view that the facts of the case do not justify the award of a major penalty, it shall determine after recording reasons thereof, what other penalty or penalties, if any, as specified in Clauses (i) to
(v) of Rule 13 should be imposed and shall after consulting the Commission, where such consultation is necessary, pass appropriate order.
(5) The disciplinary authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the „inquiring authority‟). The Government servant shall have the right to engage a legal practitioner to present his case if the person nominated by the disciplinary authority, as aforesaid, is a legal practitioner. The W.P.(C) No.9716 of 2021 Page 43 of 174 inquiring authority may also having regard to the circumstances of the case, permit the Government servant to be represented by a legal practitioner.
(6) The inquiring authority shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the inquiring authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reason in writing.
(7) At the conclusion of the inquiry the inquiring authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons thereof. If, in the opinion of such authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its findings on such charges, provided that the findings on such charges shall not be recorded, unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. The inquiring authority may W.P.(C) No.9716 of 2021 Page 44 of 174 recommend the punishment to be inflicted when the charges are establishment on the findings.
(8) The record of inquiry shall include--
(i) the charges framed against the Government servant and the statement of allegations furnished to him under sub-rule (2);
(ii) his written statement of defence, if any;
(iii) the oral evidence taken in the course of the inquiry;
(iv) the documentary evidence considered in the course of the inquiry;
(v) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry;
(vi) a report setting out the findings on each charge and the reasons therefor; and
(vii) the recommendations of the inquiring authority, if any, regarding the punishment to be inflicted.
(9) The disciplinary authority, may, for reasons to be recorded by it in writing, remit the case to inquiring authority for further inquiry and report, and the inquiring authority shall there upon proceed to hold the further inquiry according to the provisions of sub-rule (6) of Rule 15 as far as may be.
W.P.(C) No.9716 of 2021 Page 45 of 174(9A) The disciplinary authority shall, if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge.
(10) (i) (a) If the inquiring officer is not the
disciplinary authority, the
disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the inquiring officer and give him notice by registered post or otherwise calling upon him to submit within a period of fifteen days such representation as he may wish to make against findings of the Inquiring Authority.
(b) On receipt of the representation referred to in Sub-clause (a) the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in Clauses (vi) to (ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered post or otherwise stating the penalty proposed to be imposed on him and calling upon W.P.(C) No.9716 of 2021 Page 46 of 174 him to submit within a specified time such representation as he may wish to make against the proposed penalty:
Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Odisha Public Service Commission (Limitation of Functions) Regulation, 1989 the record of Inquiry together with a copy of the notice given under sub-
clause (a) and the representation if any, received within the specified time in response to such notice shall be forwarded by the disciplinary authority to the Commission for its advice.
(c) On receipt of the advice from the Commission the disciplinary authority shall consider the representation, if any, made by the Government Servant and the advice given by the Commission and shall pass appropriate orders in the case.
(d) In any case in which it is not necessary to consult the Odisha Public Service Commission, the disciplinary authority shall consider the representation, if any, made by the Government W.P.(C) No.9716 of 2021 Page 47 of 174 servant in response to the notice under sub-clause (b) and pass appropriate order in the case.
Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Odisha Public Service Commission (Limitation of functions) Regulation, 1989, the record of inquiry together with copies of the notices given under Sub-clauses (a) and (b) and the representations, if any, received in response thereto within the specified time shall be forwarded by the disciplinary authority to the Commission for its advice.
(ii) The orders passed by the disciplinary authority shall be communicated to the Government servant, who shall also be supplied with a copy of the report of inquiring authority and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority, as well as a copy of the advice of the Commission, where the Commission had been consulted, and brief statement of reasons for non-acceptance of the advice of the Commission, if the W.P.(C) No.9716 of 2021 Page 48 of 174 disciplinary authority has not accepted such advice.
(11) [***] (12) [***]"
Legal perspective:
8. Before considering the rival contentions, averments and contents of the writ petition as well as the counter affidavit(s) with rejoinder(s), it is apposite to take note of views expressed by Courts with regard to compulsory/premature retirement.
8.1. The observation of Hon‟ble Supreme Court of India in State of U.P. Vrs. Dinanath Rai, (1969) 3 SLR 646 is as under:
"3. The plaintiff challenged this order on various grounds, one ground being that the plaintiff was not paid one month‟s salary in lieu of notice on February 9, 1961, when his services were actually terminated, nor was one month‟s clear notice served on him before terminating his services. The trial court, relying on the decision of the High Court in A.P. Tripathi Vrs. State of U.P., Civil Misc Writ No. 3971 of 1958, Judgment delivered on Dec 4, 1963, accepted this contention and held that since the plaintiff had not been paid salary in lieu of notice on February 9, 1961 the termination order was illegal. However, contrary to the contention of the plaintiff, the trial court held that the plaintiff was a temporary servant and not a probationer.W.P.(C) No.9716 of 2021 Page 49 of 174
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6. We are unable to read this rule in the way it apparently was read by the High Court in A.P. Tripathi Vrs. State of U.P., Civil Misc Writ No. 3971 of 1958-- Judgment delivered on Dec 4, 1963. In that judgment Seth, J., did not reproduce the rule but he observed:
„The notice issued by the Regional Food Controller, Varanasi Region, Gorakhpur, on 26th March, 1953, terminating the services of the petitioner along with seven other persons mentioned that the services of the petitioner shall be terminated after giving one month's pay in lieu of notice of discharge. The petitioner was never paid one month‟s pay in lieu of notice was paid to the petitioner after the counter-affidavit it is mentioned that one month‟s further pay in lieu of notice was paid to the petitioner after the petitioner had been acquitted by the Special Judge on 15th May, 1958. It is also mentioned in the same paragraph that the pay of the petitioner was not paid at the time of the termination of his service as at that time certain proceedings were contemplated against the petitioner for the alleged misappropriation of 235 bags of wheat. It is, therefore, clear that the petitioner was not paid a month‟s salary in lieu of notice of discharge on 26th March, 1953, when the petitioner‟s services were actually terminated. The order dated 26th March, 1953 terminating the petitioner‟s services without paying him a month‟s salary in lieu of notice of discharge was, therefore, clearly illegal.‟ W.P.(C) No.9716 of 2021 Page 50 of 174 ***
8. It seems to us that the meaning of the statutory rule is clear. It gives option to the Government to either give a month‟s notice or to substitute for the whole or part of this period of notice pay in lieu thereof. The rule does not say that the pay should be given in cash or by cheque at the time the notice is issued. Knowing the way the Governments are run, it would be difficult to ascribe this intention to the rule-making authority. There is no doubt that the Government servant would be entitled to the pay in lieu of notice but this he would get in the ordinary course."
8.2. The observation of Hon‟ble Supreme Court of India in Union of India Vrs. M.E. Reddy, (1980) 2 SCC 15 is as under:
"11. It seems to us that the main object of this rule is to instil a spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as the Services are one of the pillars of our great democracy. Any element or constituent of the Service which is found to be lax or corrupt, inefficient or not up to the mark or has outlived his utility has to be weeded out. Rule 16(3) provides the methodology for achieving this object. We must, however, hasten to add that before the Central Government invokes the power under Rule 16(3), it must take particular care that the rule is not used as a ruse for victimisation by getting rid of honest and unobliging officers W.P.(C) No.9716 of 2021 Page 51 of 174 in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the service and defeat the laudable object which the rule seeks to subserve. If any such case comes to the notice of the Government the officer responsible for advising the Government must be strictly dealt with. Compulsory retirement contemplated by the aforesaid rule is designed to infuse the administration with initiative and activism so that it is made poignant and piquant, specious and subtle so as to meet the expanding needs of the nation which require exploration of "fields and pastures new". Such a retirement involves no stain or stigma nor does it entail any penalty or civil consequences. In fact, the rule merely seeks to strike a just balance between the termination of the completed career of a tired employee and maintenance of top efficiency in the diverse activities of the administration.
12. An order of compulsory retirement on one hand causes no prejudice to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the Services. The employees should try to understand the true spirit behind the rule which is not to penalise them but amounts just to a fruitful incident of the Service made in the larger interest of the country. Even if the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to his country, for every good cause claims its martyr.W.P.(C) No.9716 of 2021 Page 52 of 174
28. On a consideration of the authorities mentioned above we are satisfied that there is no legal error in the impugned order passed by the Government of India retiring Reddy. It was, however, contended by counsel for Reddy that reading the order as a whole it contains an odour of victimisation, so as to make the order arbitrary. We are, however, unable to find any material on the record to show that the order was in any way arbitrary. The Government of India acted on the orders passed by the Home Minister concerned who had considered the report of the Review Committee in its various aspects. There is nothing to show that Reddy was victimised in any way. On the other hand, the history of his service shows that he was always given his due. He was taken in the IPS and allotted the year 1952. He was promoted to the selection grade also at the proper time. The order of suspension was withdrawn and the departmental enquiry was dropped and the officer was reinstated and later promoted as DIG. These facts completely militate against the concept of victimisation. It appears that on an overall consideration of the entire history of the service of Reddy and the various stages through which he had passed it was considered in the interest of administration and to ensure better initiative and efficiency to retire him in public interest. We are also unable to find any element of arbitrariness in the impugned order. For these reasons, therefore, the first contention raised by learned counsel for Reddy must be rejected."W.P.(C) No.9716 of 2021 Page 53 of 174
8.3. The observation of Hon‟ble Supreme Court of India in Posts and Telegraphs Board Vrs. C.S.N. Murthy, (1992) 2 SCC 317 is as under:
"It will be clear from the extracts referred to above, that though the respondent‟s conduct was quite satisfactory till March 1970, his standard of work had declined in the last two years under review. In both these years, it was found that he was not taking adequate interest in his work and was responsible for delays of various kinds. As has already been pointed out, an order of compulsory retirement is not an order of punishment. F.R. 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. No mala fides have been urged in the present case. The only suggestion of the High Court is that the record discloses no material which would justify the action taken against the respondent. We are unable to agree. In our opinion, there was material which showed that the efficiency of the petitioner was slackening in the last two years of the period under review and it is, therefore, not possible for us to fault the conclusion of W.P.(C) No.9716 of 2021 Page 54 of 174 the department as being mala fide, perverse, arbitrary or unreasonable. The Division Bench seems to have thought that, since the adverse remarks mentioned in the earlier letter of April 29, 1971 were not repeated in the subsequent letter, it should be taken that they had been given up subsequently or that the respondent had improved in the subsequent year. We do not think that this is a legitimate inference, for the report for 1971-72 only shows that the respondents‟ propensity to delay matters persisted despite the warning of the previous year. But, even if one assumes that the High Court was correct on this, the adverse remarks made against the respondent in relation to the period 1971-72, standing by themselves, can constitute sufficient material for the department to come to a conclusion in the matter. It is true that the earlier record of the respondent was good but if the record showed that the standard of work of the respondent had declined and was not satisfactory, that was certainly material enabling the department to come to a conclusion under F.R. 56(j). We are of opinion that the High Court erred in setting aside the order of compulsory retirement on the basis that there was no material at all on record justifying the action against the respondent."
8.4. The observation of Hon‟ble Supreme Court of India in Baikuntha Nath Das Vrs. Chief District Medical Officer, Baripada, (1992) 2 SCC 299 is as under:
"30. On the above premises, it follows, in our respectful opinion that the view taken in J.N. Sinha, (1970) 2 SCC 458 = (1971) 1 SCR 791 is the correct one viz., principles of natural justice are not W.P.(C) No.9716 of 2021 Page 55 of 174 attracted in a case of compulsory retirement under F.R. 56(j) or a rule corresponding to it. In this context, we may point out a practical difficulty arising from the simultaneous operation of two rules enunciated in Brij Mohan Singh Chopra Vrs. State of Punjab, (1987) 2 SCC 188. On one hand, it is stated that only the entries of last ten years should be seen and on the other hand, it is stated that if there are any adverse remarks therein, they must not only be communicated but the representations made against them should be considered and disposed of before they can be taken into consideration. Where do we draw the line in the matter of disposal of representation? Does it mean, disposal by the appropriate authority alone or does it include appeal as well? Even if the appeal is dismissed, the Government servant may file a revision or make a representation to a still higher authority. He may also approach a court or tribunal for expunging those remarks. Should the Government wait until all these stages are over? All that would naturally take a long time by which time, these reports would also have become stale. A Government servant so minded can adopt one or the other proceeding to keep the matter alive. This is an additional reason for holding that the principle of Union of India Vrs. M.E. Reddy, (1980) 2 SCC 15 = (1980) 1 SCR 736 should be preferred over Brij Mohan Singh Chopra Vrs. State of Punjab, (1987) 2 SCC 188 and Baidyanath Mahapatra Vrs. State of Orissa, (1989) 4 SCC 664, on the question of taking into consideration uncommunicated adverse remarks.W.P.(C) No.9716 of 2021 Page 56 of 174
31. Another factor to be borne in mind is this: most often, the authority which made the adverse remarks and the authority competent to retire him compulsorily are not the same. There is no reason to presume that the authority competent to retire him will not act bona fide or will not consider the entire record dispassionately. As the decided cases show, very often, a Review Committee consisting of more than one responsible official is constituted to examine the cases and make their recommendation to the Government. The Review Committee, or the Government, would not naturally be swayed by one or two remarks, favourable or adverse. They would form an opinion on a totality of consideration of the entire record-- including representations, if any, made by the Government servant against the above remarks-- of course attaching more importance to later period of his service. Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a Government servant.
32. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the Government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the rules/orders in that behalf. Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we W.P.(C) No.9716 of 2021 Page 57 of 174 are saying is that the action under F.R. 56(j) (or the rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R. 56(j) need not be held back. There is no reason to presume that the Review Committee or the Government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the Government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the Government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in Government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action.
*** W.P.(C) No.9716 of 2021 Page 58 of 174
34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether.
While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed
(a) mala fide or
(b) that it is based on no evidence or
(c) that it is arbitrary-- in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
W.P.(C) No.9716 of 2021 Page 59 of 174(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 aspect has been discussed in paras 30 to 32 above.
35. *** We are concerned mainly with the question whether a facet of principle of natural justice-- audi alteram partem-- is attracted in the case of compulsory retirement. In other words, the question is whether acting upon undisclosed material is a ground for quashing the order of compulsory retirement. Since we have held that the nature of the function is not quasi- judicial in nature and because the action has to be taken on the subjective satisfaction of W.P.(C) No.9716 of 2021 Page 60 of 174 the Government, there is no room for importing the said facet of natural justice in such a case, more particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma."
8.5. The observation of Hon‟ble Supreme Court of India in State of U.P. Vrs. Raj Kishore Bhargava, 1992 Supp. (2) SCC 92 is as under:
"3. The High Court seems to be too technical. Three months‟ salary in lieu of notice was sent by cheque to the respondent. The cheque was sent on April 5, 1990. There is no reason to disbelieve this fact. In the affidavit on behalf of the Government it has been stated that the cheque was sent to the respondent but it was returned. It is not in dispute that the cheque was drawn, and there is no reason why it should be disbelieved merely on the ground that some other letter has not been produced.
4. The second reason given by the High Court is equally untenable. Shri Goyal is the concerned Chief Engineer. He is also required to take a decision on the compulsory retirement of the respondent. His participation in the Committee was inevitable and could not be found fault with. Secondly, the record reveals that the respondent got adverse entries right from 1961-62 to 1973-74, 1977-78, 1979-80, 1980-81 and even subsequently. In view of the poor record of service, we think that the High Court was not justified in setting aside the order of compulsory retirement."W.P.(C) No.9716 of 2021 Page 61 of 174
8.6. The observation of Hon‟ble Supreme Court of India in Union of India Vrs. Dulal Dutt, (1993) 2 SCC 179 is as under:
"18. It will be noticed that the Tribunal completely erred in assuming, in the circumstances of the case, that there ought to have been a speaking order for compulsory retirement. This Court, has been repeatedly emphasising right from the case of R.L. Butail Vrs. Union of India, (1970) 2 SCC 876 and Union of India Vrs. J.N. Sinha, (1970) 2 SCC 458 that an order of a compulsory retirement is not an order of punishment. It is actually a prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government. Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order. From the very order of the Tribunal it is clear that the Government had, before it, the report of the Review Committee yet it thought it fit of compulsorily retiring the respondent. The order cannot be called either mala fide or arbitrary in law."
8.7. The observation of Hon‟ble Supreme Court of India in Union of India Vrs. V.P. Seth, (1994) SCC (L&S) 1052 is as under:
W.P.(C) No.9716 of 2021 Page 62 of 174"3. These principles5 were reiterated with approval in the subsequent decision. It would, therefore, seem that an order of compulsory retirement can be made subject to judicial review only on grounds of mala fides, arbitrariness or perversity and that the rule of audi alteram partem has no application since the order of compulsory retirement in such a situation is not penal in nature. The position of law having thus been settled by two decisions of this Court, we are afraid that the order of the Tribunal cannot be sustained as the same runs counter to the principles laid down in the said two decisions."
8.8. The observation of Hon‟ble Supreme Court of India in S. Ramachandra Raju Vrs. State of Orissa, (1994) Supp. 3 SCC 424 = (1994) Supp.2 SCR 828 is as under:
"6. The whole purpose of the rule is to weed out the worthless 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, paper-logged processes and callous cadres are the besetting sin of the 5 Principles are enunciated in Baikuntha Nath Das Vrs. Chief District Medical Officer, Baripada, (1992) 2 SCC 299 and Posts and Telegraphs Board Vrs. C.S.N. Murthy, (1992) 2 SCC 317.W.P.(C) No.9716 of 2021 Page 63 of 174
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, a 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 latter 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 W.P.(C) No.9716 of 2021 Page 64 of 174 blemish of overlooking 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 Vrs. Union of India, (1990) 2 SCC 328 = 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 Vrs. State of Bihar, (1990) 3 SCC 504, 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 Article 311 of the Constitution.W.P.(C) No.9716 of 2021 Page 65 of 174
8. In Baikuntha Nath Das Vrs. Chief District Medical Officer, (1992) 2 SCC 299, 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 of 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 appellate court, they may interfere if they are satisfied that the order is mala fide or passed on no evidence or that is arbitrary, in the sense that no reasonable person would form the requisite opinion or 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 W.P.(C) No.9716 of 2021 Page 66 of 174 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 needs to be removed to augment efficiency. Integrity in public service needs 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 or character rolls or confidential reports maintained would furnish the backdrop material for consideration by the Government or 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 particular the latest, would form the W.P.(C) No.9716 of 2021 Page 67 of 174 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 appointment 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 as against the individual interest. On total evaluation 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.
10. Keeping these principles in mind and on considering the facts extracted hereinbefore we find that the exercise of power by the Government falls in the category of arbitrary exercise of power or failure to take the total record of service into consideration objectively. It has taken only the W.P.(C) No.9716 of 2021 Page 68 of 174 solitary adverse report for the year 1987-88 as a foundation to compulsorily retire the appellant from service. The Review Committee as well considered only that report, neither earlier reports nor subsequent reports were considered. It is seen that admittedly the appellant was promoted as a Reader after the adverse report and the adverse comments were communicated to him and in a mechanical way they rejected the report (sic. representation) to expunge the adverse remarks, even without going into the contention of the appellant that the then Principal was actuated with mala fides by submitting wrongly or falsely in confidential reports which appear to have some foundation or suspicion for such a contention. Consistent record earlier and later periods would establish that the appellant has meritorious record of service as a teacher and that his devotion to the service is good and fair and that he maintains discipline, good relations with the students and imparts teaching to the students fairly with good knowledge as a teacher. Therefore, in that background the exercise of the power is illegal.
11. The facts are eloquent. From 1973-74 the appellant started with a commendation of his performance to be „satisfactory‟ to „fair‟ in the year 1990-91. Would it be comprehensible that in the year 1987-88 whether he would suddenly drop down and become an average or below average teacher? When he was a responsible teacher and he had cordial relations with the student community, and was taking pains to impart lessons to the students, would it be believable that W.P.(C) No.9716 of 2021 Page 69 of 174 he avoids to take classes and drops down "if not watched? When anterior to or subsequent to 1987- 88 he was a man of ability and of integrity, the same would become below average only for the academic year 1987-88 without discernible reasons. It would speak volumes on the objectivity of assessment by the reporting officer i.e. the Principal. This conduct is much to be desired. This case would establish as a stark reality that writing confidential reports bears onerous responsibility on the reporting officer to eschew his subjectivity and personal prejudices or proclivity or predilections and to make objective assessment. It is needless to emphasise that the career prospects of a subordinate officer/employee largely depends upon the work and character assessment by the reporting officer. The latter should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the officer/employee concerned during the relevant period for the above objectives if not strictly adhered to in making an honest assessment, the prospect and career of the subordinate officer being put to great jeopardy. The reporting officer is bound to lose his credibility in the eyes of his subordinates and fail to command respect and work from them. The constitutional and statutory safeguards given to the Government employees largely became responsible to display callousness and disregard of the discharge of their duties and make it impossible to the superior or controlling officers to extract legitimate work from them. The writing of the confidentials is contributing to make the W.P.(C) No.9716 of 2021 Page 70 of 174 subordinates work at least to some extent. Therefore, writing the confidential reports objectively and constructively and communication thereof at the earliest would pave way for amends by erring subordinate officer or to improve the efficiency in service. At the same time, the subordinate-employee/officer should dedicate to do hard work and duty; assiduity in the discharge of the duty, honesty with integrity in performance thereof which alone would earn his usefulness in retention of his service. Both would contribute to improve excellence in service."
8.9. The observation of Hon‟ble Supreme Court of India in State of Odisha Vrs. Ram Chandra Das, (1996) 5 SCC 331 is as under:
"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 premises 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 of 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 character roll. 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, nevertheless it remains part of the W.P.(C) No.9716 of 2021 Page 71 of 174 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 is 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 compulsory retirement of the Government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that self- same material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the Government servant in service after he attained the required length of service or qualified period of service for pension. It is also made clear that in this case adverse entries were made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits."
8.10. The observation of Hon‟ble Supreme Court of India in M.S. Bindra Vrs. Union of India, (1998) 7 SCC 310 is as under:
W.P.(C) No.9716 of 2021 Page 72 of 174"11. Therefore, 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.
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. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "nemo firut repente turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity, it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient W.P.(C) No.9716 of 2021 Page 73 of 174 to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label doubtful integrity".
14. Here, out of the three instances on which the Screening Committee relied to dub the officer as a case of "doubtful integrity", the first is his action against M/s Orkay Silk Mills. The fact is that it was the appellant who headed the operation. A task which unearthed such a huge sum of concealed excise duty would normally evoke appreciation for his work. But what was noted against him in that affair is that he wilfully created lacunae in the confiscation proceedings for providing an escape route to the defaulter. One is that the confiscation order contains nearly 100 pages and the period was too short for preparing such an order. What is the inference to be drawn? Normally it is an achievement that an order of 100 pages was made during such a short period. So what is then to be thought of against it? Is it that he would have taken too much pains to finish his work or is it that he would have caused it to be written by somebody else? Is there not a clear possibility that the officer hearing the adjudication case for several days would have prepared its prefatory portion as well as the statement of summary of evidence during the days when arguments were proceeding and before conclusion of the hearing, leaving out the crucial discussion to be dictated after the conclusion of the hearing? That is not an objectionable course. If so, the W.P.(C) No.9716 of 2021 Page 74 of 174 achievement in preparing an order of confiscation within such a short span should not have been frowned at, instead there is scope to pay admiration for its promptitude.
19. We perused the statement of the Jains. They never said that the appellant made the above demand to them at any time. The only material before the Screening Committee was that the two accused had stated that Kapoor gave them such an impression. It must be noted that nobody had checked up the truth of it with the person to whom it was attributed. The most unfortunate feature is that nobody has checked it up even with Mr. Kapoor who is alleged to have told like that to the Jain Brothers. If the integrity of senior officers, who established unblemished reputation and earned encomiums from all concerned till then, is proclaimed as doubtful merely on the strength of statements of persons prosecuted by such officers, what is the safety of such officers, more so when they have to embark on hazardous operations risking their lives against big business houses?
21. We have no doubt that there is utter dearth of evidence for the Screening Committee to conclude that the appellant had doubtful integrity. Such a conclusion does not stand judicial scrutiny even within the limited permissible scope. We, therefore, allow this appeal and set aside the order under attack including the order by which premature compulsory retirement was imposed on the W.P.(C) No.9716 of 2021 Page 75 of 174 appellant. The Department concerned shall now work out the reliefs to be granted to the appellant as a sequel to this judgment."
8.11. It has been propounded in State of Gujarat Vrs.
Umedbhai M. Patel, (2001) 3 SCC 314 as under:
"11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.W.P.(C) No.9716 of 2021 Page 76 of 174
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
8.12. The observation of Hon‟ble Supreme Court of India in State of U.P. Vrs. Vijay Kumar Jain, (2002) 3 SCC 641 is as under:
"10. Before we advert to the question which we are required to decide, it is necessary to notice the nature of an order compulsorily retiring a Government servant under FR 56(c). In Shyamlal Vrs. State of U.P., AIR 1954 SC 369 = (1955) 1 SCR 26 it was held that an order of compulsory retirement is neither a punishment nor is any stigma attached to it and it was held therein as thus : (SCR pp. 41-42) „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 W.P.(C) No.9716 of 2021 Page 77 of 174 the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity.‟
11. In Union of India Vrs. Col. J.N. Sinha, (1970) 2 SCC 458 = (1971) 1 SCR 791 it was held that an employee compulsorily retired does not lose any right acquired by him before retirement and that the said Rule is not intended for taking any penal action against the Government servant and that the order retiring a Government servant compulsorily can only be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground is available to a Government servant who is sought to be compulsorily retired from service under the relevant rules subject to the conditions provided therein.
14. In State of Punjab Vrs. Gurdas Singh, (1998) 4 SCC 92 it was held thus: (SCC p. 99, para 11) „Before the decision to retire a Government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.‟ W.P.(C) No.9716 of 2021 Page 78 of 174
15. The aforesaid decisions unmistakably lay down that the entire service record of a Government servant could be considered by the Government while exercising the power under FR 56(c) of the Rules with emphasis on the later entries. FR 56(c) of the Rules read with Explanation (2), empowers the State Government with an absolute right to retire an employee on attaining the age of 50 years. It cannot be disputed that the dead wood need to be removed to maintain efficiency in the service. Integrity of a Government employee is foremost consideration in public service. If a conduct of a Government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the Government has an absolute right to compulsorily retire such an employee in public interest. The Government‟s right to compulsorily retire an employee is a method to ensure efficiency in public service and while doing so the Government is entitled under Fundamental Rule 56 to take into account the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. In fact, entire service record, character roll or confidential report furnishes the materials to the Screening Committee or the State Government, as the case may be, to find out whether a Government servant has outlived his utility in service. It is on consideration of totality of the materials with emphasis on the later entries in the character roll, the Government is expected to form W.P.(C) No.9716 of 2021 Page 79 of 174 its opinion whether an employee is to be compulsorily retired or not.
16. Withholding of integrity of a Government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13.06.1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of the order of compulsory retirement does not mean that vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out, merely it is relatable to 11th or 12th year of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and the said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the Government while considering a case for compulsory retirement of a Government servant.W.P.(C) No.9716 of 2021 Page 80 of 174
17. It was not urged before us that the order compulsorily retiring the respondent was mala fide or was not in the public interest, and in the absence of such a case, we do not find any infirmity in the order compulsorily retiring the respondent from service."
8.13. The observation of Hon‟ble Supreme Court of India in Nand Kumar Verma Vrs. State of Jharkhand, (2012) 3 SCC 580 is as under:
"28. *** It is now well settled that the object of compulsory retirement from service is to weed out the dead wood in order to maintain a high standard of efficiency and honesty and to keep the judicial service unpolluted. Keeping this object in view, the contention of the appellant has to be appreciated on the basis of the settled law on the subject of compulsory retirement.
***
31. We are conscious of the fact that there is very limited scope of judicial review of an order of premature retirement from service. As observed by this Court in Rajiah‟s case6, that, „21. *** when the High Court takes the view that an order of compulsory retirement should be made against a member of the Judicial Service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are 6 High Court of Madras Vrs. R. Rajiah, (1988) 3 SCC 211.W.P.(C) No.9716 of 2021 Page 81 of 174
absolutely irrelevant to the purpose of compulsory retirement.‟
32. We also add that when an order of compulsory retirement is challenged in a court of law, the Court has the right to examine whether some ground or material germane to the issue exists or not although, the Court is not interested in the sufficiency of the material upon which the order of compulsory retirement rests.
33. This Court in High Court of Punjab & Haryana Vrs. G. Ishwar Chand Jain, (1999) 4 SCC 579, has discussed the purpose, importance and effect of the remarks made during inspection which ultimately become the part of the ACR of the concerned Judicial officer. This Court has observed thus:
„32. Since late this Court is watching the spectre of either judicial officers or the High Courts coming to this Court when there is an order prematurely retiring a judicial officer. Under Article 235 of the Constitution the High Court exercises complete control over subordinate courts which include District Courts. Inspection of the subordinate courts is one of the most important functions which the High Court performs for control over the subordinate courts. The object of such inspection is for the purpose of assessment of the work performed by the Subordinate Judge, his capability, integrity and competency. Since Judges are human beings and also prone to all the human failings W.P.(C) No.9716 of 2021 Page 82 of 174 inspection provides an opportunity for pointing out mistakes so that they are c avoided in future and deficiencies, if any, in the working of the subordinate court, remedied. Inspection should act as a catalyst in inspiring Subordinate Judges to give the best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the courts while working under great discomfort and hardship. A satisfactory judicial system depends largely on the satisfactory functioning of courts at the grass-roots level. Remarks recorded by the Inspecting Judge are normally endorsed by the Full Court and become part of the annual confidential reports and are foundations on which the career of a judicial officer is made or marred. Inspection of a subordinate court is thus of vital importance. It has to be both effective and productive. It can be so only if it is well regulated and is workman-like. Inspection of subordinate courts is not a one-day or an hour or a few minutes‟ affair. It has to go on all the year round by monitoring the work of the court by the Inspecting Judge. A casual inspection can hardly be beneficial to a judicial system. It does more harm than good.‟
34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible W.P.(C) No.9716 of 2021 Page 83 of 174 for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACRs which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.
***
36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.
*** W.P.(C) No.9716 of 2021 Page 84 of 174
39. In Nawal Singh Vrs. State of U.P., (2003) 8 SCC 117, this Court has observed thus:
„12. *** In the present day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis.‟ ***"
8.14. The observation of Hon‟ble Supreme Court of India in Rajesh Gupta Vrs. State of J&K, (2013) 3 SCC 514 is as under:
"21. The aforesaid principles have been re-examined and reiterated by this Court in Nand Kumar Verma, (2012) 3 SCC 580. ***
24. In Jugal Chandra Saikia, (2003) 4 SCC 59 this Court reiterated the principles in the following words: (SCC p. 63, para 6) „6. *** It cannot be disputed that the passing of an order of compulsory retirement depends on the subjective satisfaction of the competent authority, of course on objective consideration. Unless it is shown that the order of compulsory retirement was passed arbitrarily and without application of mind or that such formation of opinion to retire compulsorily was based on no evidence or that the order of compulsory retirement was totally perverse, the court cannot interfere.‟ W.P.(C) No.9716 of 2021 Page 85 of 174 Examining the record of the appellant therein and the material that was placed before the Screening Committee, the High Court as well as this Court in Jugal Chandra case, (2003) 4 SCC 59 came to the conclusion that on an objective consideration of the material on the record it was not possible to accept the argument that the Screening Committee had acted only on the basis of the report of the Rao Committee. It was found that the recommendations of the Screening Committee were based on relevant material.
25. In Allahabad Bank case, (1996) 4 SCC 504 this Court examined whether the order of compulsory retirement, passed in that case, cast a stigma on Appellant-2. The impugned order therein had recited that there was "want of application to the bank‟s work and lack of potential" and "he has also been found not dependable". It was the case of Appellant-2 that the aforesaid expressions were stigmatic as they cast aspersions on his conduct, character and integrity. The High Court rejected the plea of Appellant-2 on the ground that the recitals do not cast any stigma but only assess the work of Appellant-2 for determining the issue of his compulsory retirement. In these circumstances, it was observed that the object of compulsory retirement is to weed out the dead wood in order to maintain efficiency in the service and also to dispense with the services of those whose integrity is doubtful, so as to preserve purity in the administration. The order of compulsory retirement was distinguished from the order of dismissal and removal, as it does not inflict any punishment on the Government W.P.(C) No.9716 of 2021 Page 86 of 174 servant. It only deprives the Government servant of the opportunity to remain in service till the age of superannuation. Therefore, the order of compulsory retirement differs from an order of dismissal or removal both in its nature and consequence. However, in case it is found that the order is stigmatic it would be treated as an order of punishment, which cannot be passed without complying with the provisions of Article 311(2) and the rules of natural justice. Upon examination of a large body of case law, it was observed that the order of compulsory retirement does not cast a stigma on the Government servant. But if the order contains a statement casting aspersion on his conduct or character, then the court will treat the order as an order of punishment, attracting the provisions of Article 311(2) of the Constitution. In the facts of that case, it was concluded that the two recitals contained in the order of premature retirement had been made in relation to the work of Appellant-2 and not for any other purpose. Therefore, the court declined to interfere with the order of the High Court.
26. Examining the fact situation in this case on the basis of the aforesaid principles, it becomes evident that the recommendation made by the High-Powered Committee was indubitably arbitrary.
29. The report also does not indicate that there is any irregularity in the bank accounts maintained by the appellant. The affidavit filed on behalf of the W.P.(C) No.9716 of 2021 Page 87 of 174 State of Jammu and Kashmir clearly shows that according to the Vigilance Organisation, three first information reports bearing Nos. 49 of 1991, 11 of 1995 and 63 of 1994 were registered by the State Vigilance Organisation against the appellant when he was posted as Executive Engineer (REW, Kathua). Upon investigation, all the FIRs were found to be "not proved". However, recommendation was made to initiate departmental action against the officer. In spite of the aforesaid recommendation, it has not been disputed before us, that no departmental action was ever initiated against the appellant. In fact, after the completion of the investigation into the FIRs, the appellant was promoted to the post of Executive Engineer on 15.12.1996. Therefore, it can be safely concluded that there were no material before the High-Powered Committee to conclude that the officer possessed assets beyond his known source of income.
30. This now takes us to the other material on the basis of which the recommendation has been made by the High-Powered Committee. It has been noticed by us earlier that the appellant was required, in the performance of his official duties, to recommend the sanctioning of technical approval to the construction of works of various projects. The allegation with regard to issuing backdated technical sanctions was duly inquired into. The conclusion ultimately reached by the inquiry officer noticed in the earlier part of the order indicates that at best the appellant acted in a casual and haphazard manner in the maintenance of records. Such negligence on the W.P.(C) No.9716 of 2021 Page 88 of 174 part of the appellant cannot per se lead to the conclusion that the appellant was acting in such a manner with an ulterior motive. The conclusions reached by the High-Powered Committee also do not co-relate to the assessment of work and integrity of the appellant in the annual performance report. As noticed earlier, in all the annual performance reports, the officer has been rated "Very Good", "Excellent" and even "Outstanding".
31. In view of the aforesaid, the conclusion is inescapable, that the order passed by the State Government suffers from the vice of arbitrariness. The High Court erred in arriving at conclusions which were not borne out by the record produced before the High Court. In view of the settled law, it is not possible for us to uphold the judgments of the Single Judge as also of the Division Bench."
8.15. In Rajasthan State Road Transport Corporation Vrs.
Babu Lal Jangir, (2013) 10 SCC 551 the observation of the Hon‟ble Supreme Court of India runs as under:
"14. In Brij Mohan case, (1987) 2 SCC 188 there were no adverse entries in the confidential records of the appellant for a period of five years prior to the impugned order of premature retirement. Within five years there were two adverse entries. However, these adverse remarks were not communicated to the employee. The order based on uncommunicated adverse entries was set aside on two grounds, namely:W.P.(C) No.9716 of 2021 Page 89 of 174
(i) It was not reasonable and just to consider adverse entries of remote past and to ignore good entries of recent past. If the entries for the period of more than 10 years past are taken into account it would be an act of digging out the past to get some material to make an order against the employee.
(ii) Since the adverse entries were not even communicated, it was unjust and unfair and contrary to principles of natural justice to retire prematurely a Government employee on the basis of adverse entries which are either not communicated to him or if communicated, representations made against those entries are not considered and disposed of.
16. It clearly follows from the above that insofar as first ground in Brij Mohan Singh Chopra, (1987) 2 SCC 188, namely, consideration of adverse entries of remote past was inappropriate to compulsorily retire an employee, was not touched or discussed. In fact, on the facts of Baikuntha Nath Das, (1992) 2 SCC 299, this proposition did not arise for consideration at all. No doubt, in Gurdas Singh case, (1998) 4 SCC 92 = AIR 1998 SC 1661, it has been specifically remarked that the judgment in Brij Mohan Singh Chopra, (1987) 2 SCC 188 has been overruled in Baikuntha Nath Das, (1992) 2 SCC 299. It would be relevant to point out that even Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 was a case relating to uncommunicated adverse entries. Therefore, Brij Mohan Singh W.P.(C) No.9716 of 2021 Page 90 of 174 Chopra, (1987) 2 SCC 188 was overruled only on the second proposition.
18. On that basis following pertinent observations were made in Badrinath case, (2000) 8 SCC 395:
„53. We are however concerned with the first point stated in Brij Mohan Singh Chopra case, (1987) 2 SCC 188 as explained and accepted in Principle (iv) of para 34 of the three-Judge judgment in Baikuntha Nath Das, (1992) 2 SCC 299. We have already extracted this passage in Principle (iv) of para 34. It reaffirms that old adverse remarks are not to be dug out and that adverse remarks made before an earlier selection for promotion are to be treated as having lost their „sting‟. This view of the three-Judge Bench, in our view, has since been not departed from. We shall, therefore, refer to the two later cases which have referred to this case in Baikuntha Nath Das, (1992) 2 SCC 299. The second of these two later cases has also to be explained.
54. In the first of these latter cases, namely, Union of India Vrs. V.P. Seth, (1994) SCC (L&S) 1052 the point related both to adverse remarks of a period before an earlier promotion but also to uncommunicated adverse remarks. It was held that the Tribunal was wrong in holding in favour of the officer on the ground that uncommunicated adverse remarks could not be relied upon for purposes of compulsory retirement. So far as the remarks prior to an W.P.(C) No.9716 of 2021 Page 91 of 174 earlier promotion, this Court did not hold that they could be given as much weight as those in later years. The Court, in fact, relied upon Baikuntha Nath Das case, (1992) 2 SCC 299 decided by a three-Judge Bench which had Proposition (iv) in para 34 (at pp. 315-16) had clearly accepted that adverse remarks prior to an earlier promotion lose their sting.
55. The second case is the one in State of Punjab Vrs. Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661. The facts that there were adverse remarks from 1978 prior to 1984 when the officer was promoted and there were also adverse remarks for the period 18.06.1984 to 31.03.1985. The compulsory retirement order was passed on 03.09.1987. The said order was quashed by the civil court on the ground that his record prior to his promotion i.e. prior to 1984 could not have been considered and two adverse entries after 1984 were not communicated and could not be relied upon. The three- Judge Bench, while clearly setting out Proposition (iv) in para 34 of Baikuntha Nath Das, (1992) 2 SCC 299 which said that adverse remarks prior to promotion lose their sting, held that they were following the said judgment and they allowed the appeal of the State. Following Baikuntha Nath Das, (1992) 2 SCC 299, the Bench felt that uncommunicated adverse remarks could be relied upon and in that case these entries related to the period after an earlier promotion. That ground alone W.P.(C) No.9716 of 2021 Page 92 of 174 was sufficient for the case. There is a further observation that an adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during the whole tenure of service.
56. The above sentence in Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 needs to be explained in the context of the Bench accepting the three-Judge Bench ruling in Baikuntha Nath Das, (1992) 2 SCC 299. Firstly, this last observation in Gurdas Singh case, (1998) 4 SCC 92 = AIR 1998 SC 1661 does not go against the general principle laid down in Baikuntha Nath Das, (1992) 2 SCC 299 to the effect that though adverse remarks prior to an earlier promotion can be taken into account, they would have lost their „sting‟. Secondly, there is a special fact in Gurdas Singh case, (1998) 4 SCC 92 = AIR 1998 SC 1661, namely, that the adverse remarks prior to the earlier promotion related to his „dishonesty‟. In a case relating to compulsory retirement therefore, the sting in adverse remarks relating to dishonesty prior to an earlier promotion cannot be said to be absolutely wiped out. The fact also remains that in Gurdas Singh case, (1998) 4 SCC 92 there were other adverse remarks also even after the earlier promotion, W.P.(C) No.9716 of 2021 Page 93 of 174 regarding dishonesty though they were not communicated. We do not think that Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 is an authority to say that adverse remarks before a promotion, however remote, could be given full weight in all situations irrespective of whether they related to dishonesty or otherwise. As pointed in the three-Judge Bench case in Baikuntha Nath Das, (1998) 4 SCC 92 = AIR 1998 SC 1661, which was followed in Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 they can be kept in mind but not given the normal weight which could have otherwise been given to them but their strength is substantially weakened unless of course they relate to dishonesty.‟
19. If one were to go by the dicta in Badrinath case, (2000) 8 SCC 395, the obvious conclusion would be that even if there are adverse remarks in the service career of an employee they would lose their effect, when that employee is given promotion to the higher post and would not be taken into account when the case of that employee for compulsory retirement is taken up for consideration, except only those adverse entries in the confidential reports of that employee which touch upon his integrity. Thus, Badrinath case, (2000) 8 SCC 395 interprets Principle (iv) in para 34 of Baikuntha Das, (1992) 2 SCC 299 to mean such adverse remarks for the period prior to promotion, unless they are related to dishonesty, would be substantially weakened after the promotion.
W.P.(C) No.9716 of 2021 Page 94 of 17420. This interpretation given in Badrinath case, (2000) 8 SCC 395, which was the judgment rendered by two-member Bench, has not been accepted by three-member Bench of this Court, subsequently, in Pyare Mohan Lal Vrs. State of Jharkhand, (2010) 10 SCC 693. After discussing various judgments, including the judgments referred to by us hitherto, the Court clarified and spelled out the circumstances in which the earlier adverse entries/record would be wiped off and the circumstances in which the said record, even of remote past would not lose its significance. It is lucidly conceptualised under the head "Washed- off theory" as follows: (Pyare Mohan Lal case, (2010) 10 SCC 693, pp. 702-04, paras 19-22) Washed-off theory:
19. In State of Punjab Vrs. Dewan Chuni Lal, (1970) 1 SCC 479 = AIR 1970 SC 2086 a two-Judge Bench of this Court held that adverse entries regarding the dishonesty and inefficiency of the Government employee in his ACRs have to be ignored if, subsequent to recording of the same, he had been allowed to cross the efficiency bar, as it would mean that while permitting him to cross the efficiency bar such entries had been considered and were not found of serious nature for the purpose of crossing the efficiency bar.
20. Similarly, a two-Judge Bench of this Court in Baidyanath Mahapatra Vrs. State of Orissa, (1989) 4 SCC 664 = AIR 1989 SC 2218 had taken a similar view on the issue observing W.P.(C) No.9716 of 2021 Page 95 of 174 that adverse entries awarded to the employee in the remote past lost significance in view of the fact that he had subsequently been promoted to the higher post, for the reason that while considering the case for promotion he had been found to possess eligibility and suitability and if such entry did not reflect deficiency in his work and conduct for the purpose of promotion, it would be difficult to comprehend how such an adverse entry could be pressed into service for retiring him compulsorily. When a Government servant is promoted to higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and remain on record as part of past history. This view has been adopted by this Court in Baikuntha Nath Das, (1992) 2 SCC 299.
21. However, a three-Judge Bench of this Court in State of Orissa Vrs. Ram Chandra Das, (1996) 5 SCC 331 = AIR 1996 SC 2436 had taken a different view as it had been held therein that such entries still remain part of the record for overall consideration to retire a Government servant compulsorily. The object always is public interest. Therefore, such entries do not lose significance, even if the employee has subsequently been promoted. The Court held as under: (SCC pp. 333-34, para 7) „7. *** Merely because a promotion has been given even after adverse entries W.P.(C) No.9716 of 2021 Page 96 of 174 were made, cannot be a ground to note that compulsory retirement of the Government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that self-same material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the Government servant in service after he attained the required length of service or qualified period of service for pension.‟ This judgment has been approved and followed by this Court in State of Gujarat Vrs. Umedbhai M. Patel, (2001) 3 SCC 314 = AIR 2001 SC 1109, emphasising that the entire record‟ of the Government servant is to be examined.
22. In Vijay Kumar Jain, State of U.P. Vrs. Vijay Kumar Jain, (2002) 3 SCC 641 this Court held that the vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires the examination of the entire service records, W.P.(C) No.9716 of 2021 Page 97 of 174 including character rolls and confidential reports. „Vigour or sting of an adverse entry is not wiped out‟, merely it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the Government servant.‟
21. Stating that the judgment of the larger Bench would be binding, the washed-off theory is summed up by the Court in the following manner:
(Pyare Mohan Lal case, (2010) 10 SCC 693, pp. 704-05, para 24) „24. In view of the above, the law can be summarised to state that in case there is a conflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed. More so, the washed-off theory does not have universal application. It may have relevance while considering the case of Government servant for further promotion but not in a case where the employee is being assessed by the reviewing authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his entire service record.‟
22. It clearly follows from the above that the clarification given by a two-Judge Bench judgment in Badrinath, (2000) 8 SCC 395 is not correct and the observations of this Court in Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or W.P.(C) No.9716 of 2021 Page 98 of 174 picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement.
23. The principle of law which is clarified and stands crystallised after the judgment in Pyare Mohan Lal Vrs. State of Jharkhand, (2010) 10 SCC 693 is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the Government employee is to be considered for further promotion. However, this "washed-off theory" will have no application when the case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration the earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that W.P.(C) No.9716 of 2021 Page 99 of 174 may be sufficient to justify the order of premature retirement of the Government servant.
***
27. It hardly needs to be emphasised that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non- application of mind, mala fide, perverse, or arbitrary or if there is non-compliance with statutory duty by the statutory authority. Power to retire compulsorily the Government servant in terms of service rule is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. (See Posts and Telegraphs Board Vrs. C.S.N. Murthy, (1992) 2 SCC 317 = AIR 1992 SC 1368)."
8.16. In Punjab State Power Corporation Limited Vrs. Hari Kishan Verma, (2015) 13 SCC 156, the Hon‟ble Supreme Court, after a discussion of the case law on the subject, observed as follows:
"14. In State of Orissa Vrs. Ram Chandra Das, (1996) 5 SCC 331, a three-Judge Bench has emphatically held that object behind compulsory retirement is public interest and, therefore, even if an employee has been subsequently promoted, the previous entries do not melt into insignificance.W.P.(C) No.9716 of 2021 Page 100 of 174
„7. *** Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the Government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that self-same material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the Government servant in service after he attained the required length of service or qualified period of service for pension.‟
15. The aforesaid dictum has been approved and followed in State of Gujarat Vrs. Umedbhai M. Patel, (2001) 3 SCC 214, wherein emphasis has been laid on the factum that the entire service record of the Government servant is to be examined. Same principle has also been followed in another three-Judge Bench decision in Pyare Mohan Lal Vrs. State of Jharkhand, (2010) 10 SCC 693. Slightly recently, a Division Bench in Rajasthan State Road Transport Corporation Vrs. Babu Lal Jangir, (2013) 10 SCC 551, after discussing number of authorities, has held thus:W.P.(C) No.9716 of 2021 Page 101 of 174
„22. It clearly follows from the above that the clarification given by a two-Judge Bench judgment in Badrinath Vrs. State of Tamil Nadu is not correct and the observations of this Court in State of Punjab Vrs. Gurdas Singh to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement.‟ ***"
8.17. The observation of the Hon‟ble Supreme Court of India in Ram Murti Yadav Vrs. State of U.P., (2020) 1 SCC 801 is as under:
"6. The service records of the appellant have been examined by the Screening Committee, the Full Court as also by the Division Bench of the High Court. The scope for judicial review of an order of compulsory retirement based on the subjective satisfaction of the employer is extremely narrow and restricted. Only if it is found to be based on arbitrary or capricious grounds, vitiated by mala fides, overlooks relevant materials, could there be limited scope for interference. The court, in judicial review, cannot sit in judgment over the same as an appellate authority. Principles of natural justice have no application in a case of compulsory retirement.W.P.(C) No.9716 of 2021 Page 102 of 174
7. The performance chart, as furnished by the appellant, demonstrates that his assessment from 1996-1997 till 2014-2015 rates him as a "fair" or "good officer" only, except for one entry of "very good" in the year 2011-2012. The submission that his integrity was certified on each occasion leaves us unimpressed. There can hardly be any direct evidence with regard to integrity as far as a judicial officer is concerned. It is more a matter of inference and perceptions based on the conduct of the officer. The inadequacy of the present system of writing ACRs of judicial officers has deficiencies in several ways, was noticed in High Court of Patna Vrs. Pandey Gajendra Prasad, (2012) 6 SCC 357.
8. The complaint against the appellant with regard to the acquittal granted by him was first considered by the Administrative Judge, who was satisfied that it is a matter for further enquiry. The comments of the appellant were called for. A vigilance enquiry was recommended by the Administrative Judge, who obviously was not satisfied with the explanation furnished. The officer holding the vigilance enquiry was also a judicial officer who opined that the act of acquittal by the appellant was not above board. The comments of the appellant were again called for. The Screening Committee consisting of the three Hon‟ble Judges, on an overall assessment of the appellant‟s service record, recommended his compulsory retirement. The Full Court scrutinised the service records of the appellant again while considering the recommendation of the Screening Committee and arrived at the conclusion that it W.P.(C) No.9716 of 2021 Page 103 of 174 was in public interest to compulsory retire the appellant. It is undisputed that the punishment of censure meted out to the appellant was never assailed by him.
***
14. A person entering the judicial service no doubt has career aspirations including promotions. An order of compulsory retirement undoubtedly affects the career aspirations. Having said so, we must also sound a caution that judicial service is not like any other service. A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty but has been considered as akin to discharge of a pious duty, and therefore, is a very serious matter. The standards of probity, conduct, integrity that may be relevant for discharge of duties by a careerist in another job cannot be the same for a judicial officer. A Judge holds the office of a public trust. Impeccable integrity, unimpeachable independence with moral values embodied to the core are absolute imperatives which brooks no compromise. A Judge is the pillar of the entire justice system and the public has a right to demand virtually irreproachable conduct from anyone performing a judicial function. Judges must strive for the highest standards of integrity in both their professional and personal lives.
15. It has to be kept in mind that a person seeking justice, has the first exposure to the justice delivery system at the level of subordinate judiciary, and thus a sense of injustice can have W.P.(C) No.9716 of 2021 Page 104 of 174 serious repercussions not only on that individual but can have its fall out in the society as well. It is, therefore, absolutely necessary that the ordinary litigant must have complete faith at this level and no impression can be afforded to be given to a litigant which may even create a perception to the contrary as the consequences can be very damaging. The standard or yardstick for judging the conduct of the judicial officer, therefore, has necessarily to be strict. Having said so, we must also observe that it is not every inadvertent flaw or error that will make a judicial officer culpable. The State Judicial Academies undoubtedly has a stellar role to perform in this regard. A bona fide error may need correction and counselling. But a conduct which creates a perception beyond the ordinary cannot be countenanced. For a trained legal mind, a judicial order speaks for itself."
8.18. The Hon‟ble Supreme Court of India in Central Industrial Security Force Vrs. Om Prakash, (2022) 2 SCR 203 made the following observation:
"13. There are numerous other judgments upholding the orders of premature retirement of judicial officers inter alia on the ground that the judicial service is not akin to other services. A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty but has been considered as discharge of a pious duty, therefore, it is a very serious matter. *** W.P.(C) No.9716 of 2021 Page 105 of 174
14. Thus, we find that the High Court has not only misread the judgment of this Court in Baikuntha Nath Das Vrs. Chief District Medical Officer, Baripada, (1992) 2 SCC 299 but wrongly applied the principles laid down therein. The adverse remarks can be taken into consideration as mentioned in the number of judgments mentioned above. There is also a factual error in the order of the High Court that there are no adverse remarks and that the ACRs for the year 1990 till the year 2009 were either good or very good. In fact, the summary of ACRs as reproduced by the High Court itself shows average, satisfactory and in fact below average reports as well.
15. The entire service record is to be taken into consideration which would include the ACRs of the period prior to the promotion. The order of premature retirement is required to be passed on the basis of entire service records, though the recent reports would carry their own weight.
16. In view of the said fact, we find that the order of the High Court setting aside the order of premature retirement is clearly unsustainable and is set aside. The appeal is allowed. The writ petition thus stands dismissed."
8.19. The observation of Delhi High Court in Ashok Kumar Agrawal Vrs. Union of India, 284 (2021) DLT 5 = MANU/DE/2413/2021 is as under:
"25. Much has been argued out by learned Senior Counsel appearing on behalf of the petitioner that W.P.(C) No.9716 of 2021 Page 106 of 174 there are several litigations initiated by the Petitioner for suspension, quashing of the charge sheets in departmental proceedings, for quashing of the sanction for prosecution, for getting promotions etc. and the petitioner has succeeded in all these litigations. This constitutes mala fide in law on the part of the respondents.
***
28. We are not in agreement with this contention canvassed by the learned Senior Counsel for the reason that compulsory retirement is absolutely an independent decision arrived at by the Review Committee keeping in mind the entire service record of the petitioner and usefulness of the petitioner into the services of the respondents. In the 34 years span of his career, for 20 years, petitioner has been busy in litigation with the respondents. The conduct of the petitioner has shaken the confidence of the respondents to post him on public posts which involves public dealing.
***
32. Even if there are decisions in the matter of suspension, departmental inquiries and any challenge of grant of sanction for prosecution in favour of the Petitioner, that does not mean that the Petitioner cannot be compulsorily retired by the Respondents. The observations made in the orders while deciding the matter initiated by the petitioner is one thing whereas, the order of compulsory retirement which is passed on the basis of entire service W.P.(C) No.9716 of 2021 Page 107 of 174 record of the petitioner and the decision taken by Review Committee, is altogether another thing. If any employee of the Union of India has succeeded in litigation(s) that does not mean that looking to the overall service record of the petitioner, after certain age as per rules, he cannot be retired by the Union of India. It ought to be kept in mind that compulsory retirement is a subjective satisfaction which has been formed on the basis of the entire service record. It is not a punishment. Compulsory retirement may have some adverse effect upon the employee but if the Review Committee is of the opinion that in the interest of public his services should be brought to an end by compulsory retirement after prescribed age on the basis of the entire record of service, such an employee has no right to continue into the services after a prescribed age, as per rules.
***
39. In view of the aforesaid even if there is quashing of charges in a departmental proceedings, still the respondents have all power, jurisdiction and authority under Rule 56(j) of Fundamental Rules for passing an order of compulsory retirement of the petitioner.
40. Compulsory retirement has various facets.
Compulsory retirement can be passed looking to the overall service record of the Government employee. Compulsory retirement order can also be passed in public interest with a view to improve efficiency of the administration or to weed out people of doubtful integrity or W.P.(C) No.9716 of 2021 Page 108 of 174 corrupt employee but sufficient evidence was not available to take disciplinary action in accordance with the rules, so as to inculcate a sense of discipline in the services. Thus, even if for this petitioner, the departmental charges have been quashed and set aside and the sanction granted for prosecution in two criminal cases have been quashed and set aside, still the respondents can pass an order for compulsory retirement of the petitioner.
***
44. Thus, even if this Petitioner has succeeded in few litigations, a subjective satisfaction can always be arrived at by the Respondents looking to the entire service record and performance of the Petitioner to make him compulsory retire.
45. Much has been argued out about the „honourable acquittal‟ and „acquittal on technical ground but we are not going into much detail about this aspect of the matter because the difference between the two is remarkable and noticeable and has been clarified in several decisions referred by the Hon‟ble Supreme Court, but, as the Special Leave Petitions are pending, we are not going into the detail analysis of „honourable acquittal‟ and „acquittal on technical ground‟ in this case. Suffice it would be to say that even if there is acquittal from the charges levelled against the employee for one or the other reasons, an overall decision can always be taken by the Review Committee looking to the entire service record and the performance of the W.P.(C) No.9716 of 2021 Page 109 of 174 Central Government employee for taking a decision of compulsory retirement. There is no ban or bar for the respondents that no compulsory retirement order can be passed whenever there is quashing of the charges in any litigation between an employee and the Central Government. What is to be seen is overall assessment of the performance of an employee and his usefulness into the services and not one or two matters and decisions in those matters. This opinion is a subjective satisfaction of the Review Committee. In the present case, there is no procedural error committed by the Review Committee while taking the decision under Rule 56() of Fundamental Rules. Even if there are observations about malice in law while deciding few matters between the Petitioner and Union of India, that does not mean that there is presence of malice when Review Committee has taken a decision under Rule 56(j) of Fundamental Rules retiring compulsorily this Petitioner dated 10.06.2019. There is no personal malice alleged by the Petitioner upon the members of the Review Committee.
46. There is no arbitrariness on the part of the Review Committee while taking the decision of the compulsory retirement of the Petitioner, the decision is based upon the entire service record, performance of the Petitioner and the usefulness of the Petitioner into the service of the Union of India and looking to the totality of the facts and circumstances of the petitioner, subjective satisfaction has been arrived by W.P.(C) No.9716 of 2021 Page 110 of 174 the Review Committee. We are not sitting in appeal against the subjective satisfaction of the Review Committee.
47. There is no perversity in the order of the Review Committee. Review Committee has seen the entire record of service of the petitioner including the decision rendered in various litigations initiated by the petitioner and Review Committee is of the opinion that the continuation of the services of the petitioner is no longer required and he should be made compulsorily retired.
48. Thus, there is no mala fide, no arbitrariness and no perversity on the part of the Review Committee while arriving at a subjective satisfaction of compulsory retirement of the petitioner. It ought to be kept in mind that compulsory retirement is not a punishment. Such compulsory retired Government servant does not loose any benefits earned by him till the date of his retirement.
***
56. There are serious allegations against the petitioner of corruption and of disproportionate assets including CBI cases for which sanction was given for prosecution and the SLPs are pending before the Hon‟ble Supreme Court. Even if the employee has succeeded in one or two cases or in few cases against the Central Government, that does not make him „compulsory retirement proof‟ employee. Such type of employee can also be made compulsory retired if looking to the entire service record and overall performance of the employee, usefulness of the employee into further service is W.P.(C) No.9716 of 2021 Page 111 of 174 not in public interest. There can be water proof tents or heat proof houses but there cannot be „compulsory retirement proof employee‟ even if, he has succeeded in few cases against the Central Government."
8.20. The Hon‟ble Supreme Court of India in Shiv Dayal Gupta Vrs. State of Rajasthan, (2005) Supp.5 SCR 732 held, "*** The departmental enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 where finding against the appellant of being negligent and grossly careless in discharging his judicial duties, have been recorded, which ended in minor penalty of censure imposed on him and he was further warned to remain careful and cautious while discharging his judicial functions.
On the basis of overall perusal of the ACR and overall assessment of service record of the appellant, the Review Committee consisting of four Senior Judges found that continuance of officer would be liability to the Department and adverse to the public interest and recommended that he should be compulsorily retired. It is noticed that the recommendations of the Review Committee was accepted by the Full Court in a meeting held on 8th November, 2000. It is really a case of chopping of the dead wood.
That apart, either before the High Court or before this Court, the appellant never raised and allegation of mala fide nor the said order has been passed without application of mind. In fact, considering the aforesaid facts and circumstances W.P.(C) No.9716 of 2021 Page 112 of 174 the appointing authority has come to the conclusion that the appellant‟s continuance in the service will be a liability to the public interest and passed the order after subjective satisfaction of the matter on the basis of the record placed before the authority.
Learned senior counsel cited the decisions rendered in:
1. (1992) 2 SCC 299 (Baikuntha Nath Das Vrs. Chief District Medical Officer, Braipada)
2. (2001) 3 SCC 341 (State of Gujarat Vrs.
Umedhbhai M. Patel)
3. (2002) 3 SCC 641 (State of U.P. Vrs. Vinay Kumar Jain) and
4. (2001) 3 SCC 389 (State of U.P. Vrs. Lalsa Ram).
The ratio of the decision cited quoted by the learned senior counsel for the appellant, are not applicable in the facts of this case."
Conspectus of aforesaid decisions:
9. Conspectus of decisions referred to above illuminatingly cull out the principles as follows:
9.1. Perspective of "premature retirement"" alternatively, "compulsory retirement":
i. Every termination of service is not punishment, but only those which are brought about by removal or dismissal for misconduct after enquiry. For better administration, it is necessary W.P.(C) No.9716 of 2021 Page 113 of 174 to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
ii. Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. An order of compulsory retirement is neither a punishment, nor does it imply stigma or is it indicative of any suggestion of misbehaviour.
iii. The order of compulsory retirement shall not be passed as a short-cut to avoid departmental enquiry when such course is more desirable. The rule is not used as a ruse for victimisation by getting rid of honest and unobliging officers in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the service and defeat the laudable object which the rule seeks to subserve.
iv. An order of compulsory retirement on one hand causes no prejudice to the Government servant W.P.(C) No.9716 of 2021 Page 114 of 174 who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the services.
v. 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 employee. Such an employee reaching the age of compulsory retirement could neither seek alternative appointment nor meet the family burden with the pension or other benefits he gets. 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 as against the individual interest.
vi. Compulsory retirement order can also be passed in public interest with a view to improve efficiency of the administration or to weed out people of doubtful integrity or corrupt employee but sufficient evidence was not available to take disciplinary action in accordance with the rules, so as to inculcate a sense of discipline in the services. Thus, even if the departmental charges W.P.(C) No.9716 of 2021 Page 115 of 174 have been quashed and set aside and the sanction granted for prosecution in criminal case has been quashed and set aside, still the Government can pass an order for premature/ compulsory retirement.
9.2. Right of the Government servant:
The principle governing the order of preventive detention evolved by the Supreme Court having regard to the constitutional right of a person appertaining to effective representation against such order is not applicable in the case of an order for compulsory retirement which casts no stigma on a Government servant and cannot be equated with an order affecting his right by way of disciplinary proceedings. An order of compulsory retirement, simpliciter, under Rules does not affect any right of the Government servant.7 9.3. Elements to be taken into consideration:
i. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".
7 State of Uttar Pradesh Vrs. Chandra Mohan Nigam, AIR 1977 SC 2411 = (1978) 1 SCR 521.W.P.(C) No.9716 of 2021 Page 116 of 174
ii. Adverse entries:
a. Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
b. Even uncommunicated entries in the confidential record can also be taken into consideration.
c. If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
d. Vigour or sting of an adverse entry is not wiped out, merely it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the Government servant.
iii. Other relevant factors:
a. The order of premature retirement fails if vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law.W.P.(C) No.9716 of 2021 Page 117 of 174
b. Though the order of premature/compulsory retirement is not a punishment and the Government employee is entitled to draw all retirement benefits including pension, the Government must exercise its power only in the public interest to effectuate the efficiency of the service.
c. The deadwood needs to be removed to augment efficiency. Integrity in public service needs 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.
d. 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.
e. If a conduct of a Government employee becomes unbecoming to the public interest W.P.(C) No.9716 of 2021 Page 118 of 174 or obstructs the efficiency in public services, the Government has absolute right to compulsorily retire such an employee in public interest. The Government‟s right to compulsorily retire an employee is a method to ensure efficiency in public service.
9.4. Competent authority:
i. 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 delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are factors 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.
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.
9.5. Records:W.P.(C) No.9716 of 2021 Page 119 of 174
i. 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 of 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.
ii. The entire service record is to be taken into consideration which would include the PARs of the period even prior to the promotion. The "washed off" theory is not attracted. The order of premature retirement is required to be passed on the basis of entire service records, though the recent reports would carry their own weight. Therefore, even if an employee has been subsequently promoted, the previous entries do not melt into insignificance.
iii. The whole record of service of the employee will include any uncommunicated adverse entries as well.
iv. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher W.P.(C) No.9716 of 2021 Page 120 of 174 rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service.
9.6. Applicability of principles of natural justice:
i. Principles of natural justice are not attracted in a case of premature/compulsory retirement.
ii. Since the nature of the function of the authority taking decision for premature retirement is not quasi judicial in nature. The action has to be taken on the subjective satisfaction of the Government, there is no room for importing the said facet of natural justice in such a case, more particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma.
iii. An order of compulsory retirement is not an order of punishment. It is actually a prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government. Very often, on enquiry by the Court the Government may disclose the material but it is very much different from saying that the order should be a speaking W.P.(C) No.9716 of 2021 Page 121 of 174 order. No order of compulsory retirement is required to be a speaking order.
9.7. Sufficiency of material:
i. The adequacy or sufficiency of materials based on which the order for premature/compulsory retirement is passed cannot be questioned, unless the materials are absolutely irrelevant to the purpose of compulsory retirement.
ii. The Court is required to examine whether some ground or material germane to the issue exists, although the Court is not interested in the sufficiency of the material upon which the order of compulsory retirement rests.
9.8. Scope of judicial review:
i. The remedy under Article 226 is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions of the authorities.
ii. The order of premature retirement is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases.W.P.(C) No.9716 of 2021 Page 122 of 174
iii. The High Court would not examine the matter as an Appellate Court; but interference in the order of premature retirement is permissible, if the Court is satisfied that the order is passed:
a. arbitrarily; or b. capriciously, or in ignorance of relevant materials, or based on no evidence or perverse; or c. without application of mind; or d. if there is non-compliance with statutory duty by the statutory authority; or e. smacks mala fide on the part of the authority concerned.
iv. In other words, 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.
v. The order of compulsory retirement does not cast
a stigma on the Government servant;
nonetheless, if the order contains a statement casting aspersion on his conduct or character, then the court will treat the order as an order of W.P.(C) No.9716 of 2021 Page 123 of 174 punishment, attracting the provisions of Article 311(2) of the Constitution.
vi. Unless it is shown that the order of compulsory retirement was passed arbitrarily and without application of mind or that such formation of opinion to retire compulsorily was based on no evidence or that the order of compulsory retirement was totally perverse, the court cannot interfere.
Scope of judicial review:
10. In Syed T.A. Naqshbandi Vrs. State of J&K, (2003) 9 SCC 592, it was held that while exercising powers of judicial review the Courts should not substitute themselves for the Committee. In the said Judgment, it has been observed as follows:
"10. Neither the High Court nor this Court, in exercise of its powers of judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of the High Court concerned, to make an independent reassessment of the same, as if sitting on an appeal. On a careful consideration of the entire materials brought to our notice by learned counsel on either side, we are satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinion is neither so arbitrary or capricious nor can be said to be so irrational as to shock the W.P.(C) No.9716 of 2021 Page 124 of 174 conscience of the Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be overblown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court."
10.1. In the case of State of Uttar Pradesh Vrs. Chandra Mohan Nigam, AIR 1977 SC 2411 = (1978) 1 SCR 521 it has been laid down that, "Under Rule 16(2)8, a Government servant has a right to retire prematurely by giving three months‟ previous notice to the Government. Similarly under Rule 16(3), after a Government servant serves a period of 30 years or attains the age of 50 years, he cannot insist on a right to be retained in the service. The Government may also exercise a corresponding right under Rule 16(3) to prematurely retire him at the age of 50 or 55 after giving three months‟ notice. This termination of service by way of premature retirement 8 The All India Services (Death-cum-Retirement Benefits) Rules, 1958.W.P.(C) No.9716 of 2021 Page 125 of 174
cannot be equated with a penal order of removal or dismissal. Even so, an order of compulsory retirement may be challenged in a court if it is arbitrary or is actuated by mala tides."
Analysis and discussion:
11. Rule 71 of the OSC carves out exception to the normal process of retirement on attaining age of superannuation, that Appropriate Authority may require any officer to retire in public interest any time after he has completed thirty years‟ of qualifying service or attained the age of fifty years. For this purpose the Appropriate Authority is obligated to give a notice in writing to the Government servant at least three months before the date on which he is required to retire or by giving three months‟ pay and allowances in lieu of such notice.
11.1. Rule 13 of the OCS (CCA) Rules enumerates different types of penalties to be imposed on good and sufficient reasons assigned. While items (i) to (v) ibid. are minor penalties, the rest of the items (vi) to (ix) are identified as major penalties. Item (vii) thereof, i.e., compulsory retirement is, therefore, treated to be major penalty.
Nonetheless, in Explanation appended to Rule 13 makes it explicit that compulsory retirement of a Government servant in accordance with the provision W.P.(C) No.9716 of 2021 Page 126 of 174 relating to his superannuation or retirement shall not amount to penalty within the meaning of said rule.
11.2. Therefore, it can safely said that the order of retirement passed by the Government in exercise of power under clause (a) of Rule 71 of the OSC would come within the connotation of "premature retirement", even though it may be loosely worded as "compulsory retirement". A reference to Bishwanath Prasad Singh Vrs. State of Bihar, (2000) Supp.5 SCR 718, would suffice to comprehend the concept of compulsory retirement and premature retirement. In the said case it has been observed as follows:
"The use of the words „compulsory retirement‟ for the judicial officers allowed to superannuate at the age of 58 years and the expressions such as „compulsory retirement on attaining the age of 58 years according to the procedure for compulsory retirement under the rules‟ have emboldened the petitioner to raise the plea that subsequent to the judgment of this court in 1993 case, the retirement of a judicial officer at the age of 58 years is not retirement in ordinary course but compulsory retirement and, therefore, the procedure for compulsory retirement has to be followed. In our opinion such a submission cannot be entertained on an overall reading of the judgment of this court in 1993 case. Compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent Government servant consequent upon a finding of guilt being recorded in W.P.(C) No.9716 of 2021 Page 127 of 174 disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. Such compulsory retirement in the case of a Government servant must also withstand the scrutiny of Article 311 of the Constitution. Then there are service rules, such as Rule 56(j) of Fundamental Rules, which confer on the Government or the appropriate authority, an absolute (but not arbitrary) right to retire a Government servant on his attaining a particular age or on his having completed a certain number of years of service on formation of an opinion that in public interest it is necessary to compulsorily retire a Government servant. In that case, it is neither a punishment nor a penalty with loss of retiral benefits. *** More appropriately it is like premature retirement. It does not cast any stigma. The Government servant shall be entitled to the pension actually earned and other retiral benefits. So long as the opinion forming basis of the order for compulsory retirement in public interest is formed bona fide, the opinion cannot be ordinarily interfered with by a judicial forum. Such an order may be subjected to judicial review on very limited grounds such as the order being mala fide, based on no material or on collateral grounds or having been passed by an authority not competent to do so. The object of such compulsory retirement is not to punish or penalise the Government servant but to weed out the worthless who have lost their utility for the administration by their insensitive, unintelligent or dubious conduct impeding the flow of W.P.(C) No.9716 of 2021 Page 128 of 174 administration or promoting stagnation. The country needs speed, sensitivity, probity, non-irritative public relation and enthusiastic creativity which can be achieved by eliminating the dead wood, the paper- logged and callous."
11.3. The provisions juxtaposed with the conspectus of decisions referred to above would create no ambiguity that action taken under Rule 71 of the OSC is not pernicious in view of the fact that the order of premature retirement does not pose as stigma nor is it construed as a penalty within the ken of nature/ categories of penalties enumerated under Rule 13 of the OCS (CCA) Rules. An order of premature/ compulsory retirement under Rule 71 of the OSC causes no prejudice to the Government servant as he is made to lead a restful life enjoying full pensionary and other benefits. Recourse to Rule 71 of the OSC by the Government any time after the Government servant completes thirty years of qualifying service or attains the age of fifty years.
12. Scanning through the documents available on record it transpires that the petitioner was put under suspension by Order dated 20.12.2019 invoking provisions of Rule 12 of the OCS (CCA) Rules and proposal to hold enquiry under Rule 15 thereof on the alleged charges of misconduct was communicated to W.P.(C) No.9716 of 2021 Page 129 of 174 him by issue of Memorandum dated 11.02.2020 by the Home Department.
12.1. It is transpired from the record that on detection of alleged offences under Section 85 of the Odisha Forest Act, 1972 read with violation of provisions of Rules 4, 7, 10, 12 and 21 of the Odisha Timber and Other Forest Produce Transit Rules, 1980, a First Information Report being lodged, the learned Judicial Magistrate First Class had taken cognizance of the offences and proceeded with the criminal trial.
12.2. Letter dated 10.12.2019 issued by the Inspector General of Police, Special Armed Police, Odisha, Bhubaneswar (Annexure-C/1 to the counter affidavit) indicates that connected records and documents were submitted to the Special Director General of Police, Special Armed Police, Odisha, Bhubaneswar.
12.3. The proceedings of the Review Committee undertaken on 29.12.2020 to consider premature retirement of the petitioner shows his involvement in transportation of timber in Government vehicle without due permission at his instance was taken into consideration. Scrutiny of copies of statement of drivers of the vehicle, Forest Guard and transcript of conversation over mobile phone of the petitioner with one Nabin Sahu of Keonjhar, AD-525, as recorded leads to show that W.P.(C) No.9716 of 2021 Page 130 of 174 clear instruction was imparted with respect to unloading of wooden planks transported in a Government vehicle using the subordinate staff.
12.4. Thus, there being in existence preponderance of probability on the basis of material available on record, though in a disciplinary proceeding there could be scope afforded to the petitioner to rebut the charges, even though it is vehemently contended that by Judgment dated 15.05.2023 of the Judicial Magistrate First Class in 2(b) CC No.4 of 2019 (TR No.8 of 2021) he was acquitted on the ground of failure on the part of the prosecution to bring home the charges in the criminal case by leading evidence beyond all reasonable doubt. It is hotly contested by the learned Additional Government Advocate that when the petitioner is found to have indulged in such activity of dishonesty, the subsequent event of acquittal that too on failure to prove charges beyond all reasonable doubt in criminal case, there is no point in waiting the disciplinary proceeding to culminate. Refuting stand point of Sri Manoj Kumar Mishra, learned Senior Advocate, Smt. Saswata Pattnaik, the learned Additional Government has made out a case in favour of the opposite parties that immediate halt to misuse of power vested in the official position necessitated action under Rule 71 of the OSC. Such a W.P.(C) No.9716 of 2021 Page 131 of 174 step is in the right direction for sending message to other employees in the Government.
12.5. Rule 3 of the Odisha Government Servants‟ Conduct Rules, 1959 enjoins every Government servant to maintain at all times absolute integrity, decorum of conduct and devotion to duty and prohibits any act which amounts to personal immorality or failure to discharge duties properly.
12.6. In Radheshyam Kejriwal Vrs. State of West Bengal, (2011) 3 SCC 581, following principles were laid down:
"38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of W.P.(C) No.9716 of 2021 Page 132 of 174 the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."
12.7. This Court finds support from the decision of the Hon‟ble Supreme Court of India rendered in the case of Union of India Vrs. Sitaram Mishra, (2019) 9 SCR 585 wherein the following observation has been made:
"10. This part of the admission of the first respondent clearly indicates that it was as a result of the handling of the weapon by the first respondent that the bullets were fired and the death of his colleague occurred in consequence. None of the material facts are in dispute.
11. In this view of the matter, the High Court was manifestly in error in interfering with the findings of the disciplinary enquiry, particularly when a learned Single Judge had, in the course of his judgment, found no irregularity in the enquiry.W.P.(C) No.9716 of 2021 Page 133 of 174
The punishment of dismissal is not disproportionate to the misconduct proved.
12. The second ground, which has weighed with the High Court, is equally specious. A disciplinary enquiry is governed by a different standard of proof than that which applies to a criminal case. In a criminal trial, the burden lies on the prosecution to establish the charge beyond reasonable doubt. The purpose of a disciplinary enquiry is to enable the employer to determine as to whether an employee has committed a breach of the service rules. *** The fact that the first respondent was acquitted in the course of the criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct which has been arrived at during the course of the disciplinary proceedings. The High Court, in our view, has drawn an erroneous inference from the decision of this Court in Capt. M. Paul Anthony Vrs. Bharat Gold Mines Ltd. (1999) 3 SCC 679. The High Court adverted to the following principle of law laid down in the above judgment:
„*** While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.‟ W.P.(C) No.9716 of 2021 Page 134 of 174
13. It is undoubtedly correct that the charge in the criminal trial arose from the death of a co- employee in the course of the incident resulting from the firing of a bullet which took place from the weapon which was assigned to the first respondent as a member of the Force. But the charge of misconduct is on the ground of the negligence of the first respondent in handling his weapon and his failure to comply with the departmental instructions in regard to the manner in which the weapon should be handled. Consequently, the acquittal in the criminal case was not a ground for setting aside the penalty which was imposed in the course of the disciplinary enquiry. Hence, having regard to the parameters that govern the exercise of judicial review in disciplinary matters, we are of the view that the judgment of the Division Bench of the High Court is unsustainable"
12.8. Reference to State of M.P. Vrs. Bunty, (2020) 17 SCC 654 may be apt in the present context. In the said case, it is stated thus:
"3. It is not in dispute that respondent Bunty was involved in a case involving moral turpitude for the commission of an offence under Sections 392 and 411 of the Penal Code, 1860. He was given benefit of doubt in the said case and was acquitted vide judgment and order dated 07.01.2015 and same has attained finality.
*** W.P.(C) No.9716 of 2021 Page 135 of 174
6. The learned counsel appearing on behalf of the State has relied upon the decisions of this Court in State Vrs. Mehar Singh, (2013) 7 SCC 685, State of M.P. Vrs. Parvez Khan (2015) 2 SCC 591, State (UT of Chandigarh) Vrs. Pradeep Kumar, (2018) 1 SCC 797, to contend that when the Screening Committee has formed an opinion with objectivity considered the allegations and overall material the decision is not open to judicial review until and unless it has acted arbitrarily or its decision is perverse. The learned counsel further submitted that mere acquittal on the ground of benefit of doubt could not have enured in favour of the appellant so as to be entitled to appointment, as a matter of course as observed by the Division Bench of the High Court.
***
10. The learned Single Judge of the High Court in the factual matrix projected, has rightly relied upon the decision in State Vrs. Mehar Singh, (2013) 7 SCC 685, wherein this Court has observed as under:
„35. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or W.P.(C) No.9716 of 2021 Page 136 of 174 discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crime poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of the trust reposed in it and must treat all candidates with an even hand.‟
11. That apart, when we consider the decision of the three-Judge Bench of this Court in Avtar Singh Vrs. Union of India, (2016) 8 SCC 471 the Court observed:
„38.4.3. If acquittal had already been recorded in a case involving moral W.P.(C) No.9716 of 2021 Page 137 of 174 turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.‟
12. In State (UT of Chandigarh) Vrs. Pradeep Kumar, (2018) 1 SCC 797 this Court has observed:
„15. From the above details, we find that the Screening Committee examined each and every case of the respondents and reasonings for their acquittal and taken the decision. While deciding whether a person involved in a criminal case has been acquitted or discharged should be appointed to a post in a police force, nature of offence in which he is involved, whether it was an honourable acquittal or only an extension of benefit of doubt because of witnesses turned hostile and flaws in the prosecution are all the aspects to be considered by the Screening Committee for taking the decision whether the candidate is suitable for the post. As pointed out earlier, the Screening Committee examined each and every case and reasonings for their acquittal and took the decision that the respondents are not suitable for the post of Constable in Chandigarh Police. The procedure followed is as per Guideline 2(A)(b) W.P.(C) No.9716 of 2021 Page 138 of 174 and object of such screening is to ensure that only persons with impeccable character enter police force. While so, the court cannot substitute its views for the decision of the Screening Committee.‟
13. The law laid down in the aforesaid decisions makes it clear that in case acquittal in a criminal case is based on the benefit of doubt or any other technical reason, the employer can take into consideration all relevant facts to take an appropriate decision as to the fitness of an incumbent for appointment/ continuance in service. The decision taken by the Screening Committee in the instant case could not have been faulted by the Division Bench."
12.9. In the case of Union of India Vrs. Methu Meda, (2022) 1 SCC 1 it has been held, "12. In view of the above, if the acquittal is directed by the court on consideration of facts and material evidence on record with the finding of false implication or the finding that the guilt had not been proved, accepting the explanation of accused as just, it be treated as honourable acquittal. In other words, if prosecution could not prove the guilt for other reasons and not "honourably"
acquitted by the court, it be treated other than "honourable", and proceedings may follow.
13. The expression "honourable acquittal" has been considered in State Vrs. S. Samuthiram, (2013) 1 SCC 598 after considering the judgments in RBI Vrs. Bhopal Singh Panchal, (1994) 1 SCC 541 and W.P.(C) No.9716 of 2021 Page 139 of 174 R.P. Kapur Vrs. Union of India, AIR 1964 SC 787, State of Assam Vrs. Raghava Rajgopalachari, 1967 SCC OnLine SC 1; this Court observed that the standard of proof required for holding a person guilty by a criminal court and enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing guilt of the accused is on the prosecution, until proved beyond reasonable doubt. In case, the prosecution failed to take steps to examine crucial witnesses or the witnesses turned hostile, such acquittal would fall within the purview of giving benefit of doubt and the accused cannot be treated as honourably acquitted by the criminal court. While, in a case of departmental proceedings, the guilt may be proved on the basis of preponderance of probabilities, it is thus observed that acquittal giving benefit of doubt would not automatically lead to reinstatement of candidate unless the rules provide so.
***
20. In view of the aforesaid, it is clear the respondent who wishes to join the police force must be a person of utmost rectitude and have impeccable character and integrity. A person having a criminal antecedents would not be fit in this category. The employer is having right to consider the nature of acquittal or decide until he is completely exonerated because even a possibility of his taking to the life of crimes W.P.(C) No.9716 of 2021 Page 140 of 174 poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee and the decision of the Committee would be final unless mala fide. In State (UT of Chandigarh) Vrs. Pradeep Kumar, (2018) 1 SCC 797, this Court has taken the same view, as reiterated in State Vrs. Mehar Singh, (2013) 7 SCC 685. The same view has again been reiterated by this Court in State Vrs. Raj Kumar, (2021) 8 SCC 347."
12.10. In the present case Sri Manoj Kumar Mishra, learned Senior Advocate strenuously argued that since the petitioner has been acquitted from criminal charges after decision being taken by the Review Committee, and though the Judgment dated 15.05.2023 of the learned Judicial Magistrate First Class was not available at the time of consideration, now the matter can be reconsidered taking into view that the charges against the petitioner could not be proved. This Court having had the opportunity to have perusal of said Judgment, finds the following:
"Therefore, I am of the opinion that there is no opportunity lies with the prosecution to establish the case beyond all reasonable doubt. So it is a fit case where the accused is entitled for acquittal."
12.11. Since such acquittal is on account of failure to prove beyond all reasonable doubt, in view of the above referred cases, the acquittal cannot be said to be W.P.(C) No.9716 of 2021 Page 141 of 174 honourable acquittal. Hence, it is misnomer to contend that further proceeding in the disciplinary proceeding an empty formality. This Court feels persuaded on the material available on record that the disciplinary proceeding being initiated for examination of misconduct, the same could continue beyond the date of retirement of the petitioner on attaining age of superannuation.
12.12. It is unequivocal from Rule 6(1) of the Odisha Civil Services (Pension) Rules, 1992 that "future good conduct shall be an implied of every grant of pension and its continuance under these rules". As per sub- rule (2) thereof, if the pensioner inter alia is found to have committed grave misconduct, the Pension Sanctioning Authority may by order in writing, withhold or withdraw a pension or part thereof. In view of sub-rule (4) of Rule 6 ibid., on prima facie consideration of the Government servant leads to guilty of grave misconduct, there is scope for the authority concerned to withhold or withdraw pension.
12.13. This Court was drawn attention to sub-rule (2) of Rule 7 of the Odisha Civil Services (Pension) Rules, wherein the untrammelled provision spells out that the departmental proceedings, if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after W.P.(C) No.9716 of 2021 Page 142 of 174 the final retirement of the Government servant, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.
12.14. The enquiry report dated 10.12.2019 along with copies of statements of persons contacted as recorded and other relevant related documents was submitted by Inspector General of Police (SAP), Odisha, Bhubaneswar, (Annexure-C/1 to the counter affidavit) reading of which gives lucid narration of events and inter alia it was observed as follows:
"The Commandant-in-Charge Sri D.N. Behera could not be examined during the enquiry process, as he was found absent from BN. Hdqrs. and therefore not available for the purpose on 06/07.12.2019.
On the basis of the statements of the above officers and staff of 9 SIR Bn, Kalahandi & Forest Department, recorded conversations held between the AD/525 Nabin Sahu and in-Charge Commandant, the Offence Report No.340 K/2019-20 of Kesinga Forest Range, and its related documents such as seizure list, statements of the accused persons recorded by the forest officials, arrest memo etc., it can be safely deducted that, prima facie In-Charge Commandant Sri Debendra Nath Behera had collected the seized Teak Wood Planks employing his subordinates through irregular methods. He himself had instructed his subordinates to transport the illegally acquired wooden W.P.(C) No.9716 of 2021 Page 143 of 174 planks in Battalion Bus, later identified by the forest department as Teak Wood as to be delivered at Keonjhar. This fact was corroborated by the call recording between AD/525 Nabin Sahu and In-Charge Commandant Sri D.N. Behera. Said wooden planks transported in BN‟s Bus were intercepted and seized by the Forest Department in Kesinga. An Offence Report Vide No.340 K/2019-20 of Kesinga Forest Range was lodged by the Forest Department for transporting the wooden planks without permission against Hav. Tanmaya Chardia and two Asst. Drivers. Two AD/526 Banshi Nahak, AD/525, Nabin Sahu and Hav. Tanmaya Chardia were arrested and forwarded to court on 01.12.2019. Subsequently, on the basis of statements recorded before the Investigation Officer, Court took cognizance of offence and directed I.O. to produce the main accused at whose behest planks were transported."
12.15. Sri Manoj Kumar Mishra, learned Senior Counsel except for submitting the legal position that entire service records should have been scanned by the Review Committee, has not raised any dispute that these material were not before the said Committee for appraisal. Before the Review Committee entire record was available including the PARs. The document at Annexure-A/3 enclosed to counter affidavit dated 02.08.2023 clearly depicts that the fact of the disciplinary proceeding and the criminal case being pending was appraised.
W.P.(C) No.9716 of 2021 Page 144 of 17412.16. The Review Committee in its proceeding dated 29.12.2020 (Annexure-12 enclosed to Additional Affidavit dated 21.06.2022 filed by the petitioner) clearly mentioned about cause for suspension and pendency of such proceedings. This apart the Review Committee has taken note of the fact that the petitioner was at the age of 56 years as on 31.03.2021 having completed 35 years of service. He was due to retire on 31.07.2024. Therefore, it was not irrational or illogical for them to consider that instead of continuing the disciplinary proceeding further, to recommend for premature retirement invoking Rule 71(a) of the OSC so that the same would not be construed as punitive or stigma. In such event, there was no impediment for consideration of grant of pension and other retirement benefits.
12.17. Further scrutiny of document enclosed to Annexure-12 would depict that besides commendations and accolades found mentioned at the relevant column of the Service Book maintained in Human Resource Management System, the pendency of proceedings of the petitioner was also reflected therein. The Special Director General of Police, SAP, Odisha, Bhubaneswar (Recommending Authority) has, therefore, observed that, W.P.(C) No.9716 of 2021 Page 145 of 174 "A criminal case pending against him for theft of forest wood. Departmental proceedings continuing. Doubtful integrity."
12.18. Black‟s Law Dictionary, Fourth Edition published in 1968 defines "integrity" as follows:
"Integrity.--
As occasionally used in statutes prescribing the qualifications of public officers, trustees, etc., this term means soundness of moral principle and character, as shown by one person dealing with others in the making and performance of contracts, and fidelity and honesty in the discharge of trusts; it is synonymous with „probity,‟ „honesty,‟ and „uprightness.‟ ***"
12.19. In Union of India Vrs. P. Gunasekaran, (2015) 2 SCC 610 it was held:
"Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the Court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is „moral uprightness; honesty‟. It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, W.P.(C) No.9716 of 2021 Page 146 of 174 genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
12.20. Regard may be had to the meaning of „doubt‟ as referred to by the Hon‟ble Supreme Court of India in Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1 which is to the following effect:
"28. In P. Ramanatha Aiyar‟s The Major Law Lexicon, 4th Edn., the words „doubt‟ and „question‟ have been dealt with in the following manner:
„Doubt, question.--
These terms express the act of the mind in staying its decision. Doubt lies altogether in the mind; it is a less active feeling than question; by the former we merely suspend decision; by the latter we actually demand proofs in order to assist us in deciding. We may doubt in silence. We cannot question without expressing it directly or indirectly. He who suggests doubts does it with caution: he who makes a question throws in difficulties with a degree of confidence. We doubt the truth of a position; we question the veracity of an author. (Crabb)‟ As per Concise Oxford Dictionary (10th Edn.), „question‟ means „a doubt; the raising of a doubt or objection; a problem requiring solution‟.
In Black‟s Law Dictionary, „doubt‟, as a verb, has been defined as follows:W.P.(C) No.9716 of 2021 Page 147 of 174
„Doubt.--
To question or hold questionable.‟ The word „doubt‟, as a noun, has been described as under:
„Doubt.--
Uncertainty of mind; the absence of a settled opinion or conviction; the attitude of mind towards the acceptance of or belief in a proposition, theory, or statement, in which the judgment is not at rest but inclines alternately to either side."
12.21. With the above understanding of "doubtful integrity", as the petitioner was alleged to be involved in misconduct by misuse of power, the continuance in service would have been detrimental to public interest and considering the rigmarole of disciplinary proceeding beyond date of usual retirement, i.e., 31.07.2024, the Review Committee seemly suggested the Government to take step to invoke provisions of Rule 71(a) of the OSC, so that he would not be deprived of pension and other retirement benefit.
12.22. It may, thus, be noted that the events post decision making would not be relevant factor for reconsideration. It may now be pertinent to examine the PARs of the petitioner. The petitioner has been rated by his superior authorities as "good" and "very good" in most of the periods. The abstract of rewards W.P.(C) No.9716 of 2021 Page 148 of 174 as placed by the petitioner by way of an Additional Affidavit filed on 22.06.2022 reflects 49 Good Service Mark, 34 commendations, 10 money prizes and 88 appreciation, he was warned in SB vide DO No.3145, dated 09.12.1993 (minor punishment).
12.23. Aforesaid analysis of material available on record, thus, would go to indicate that there can be no gainsaying that he was not impeccably honest with high degree of integrity.
12.24. The "doubtful" integrity does not demand evidence to be proved, but the Review Committee had the same in mind. Therefore, there is no scope for holding that the decision of the Review Committee is tainted with arbitrariness.
13. Sri Manoj Kumar Mishra, learned Senior Advocate has made feeble attempt to impute mala fides against members of the Review Committee. In absence of the member(s) being arrayed as party to this proceeding in their personal capacity, the allegation of mala fide needs no indulgence. At paragraph 11 of the writ petition it has been alleged as follows:
"In the instant case, a departmental proceeding has been in progress at the stage of evidence it is accordingly not appropriate legally for the authorities to pass this impugned order of compulsory retirement during the pendency of this proceeding. It seems the W.P.(C) No.9716 of 2021 Page 149 of 174 opposite parties have issued this order arbitrarily, unfairly and unlawfully to avoid the departmental proceeding already initiated against the petitioner in terms of Odisha Civil Services (Classification, Control and Appeal) Rules, 1962. It should have been just and proper for the Government to wait for the completion of the enquiry by affording opportunities to him to defend himself and to reach at the logical conclusion on receipt of the enquiry report. This sort of action of the opposite parties in giving go-bye to the statutory Rules can be tainted as malicious and mala fide which is absolutely bad in the eyes of law."
13.1. In Purushottam Kumar Jha Vrs. State of Jharkhand, (2006) 9 SCC 458 the law has been stated thus:
"It is well settled that whenever allegations as to mala fides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala fide and malicious is not enough. In the absence of material particulars, the court is not expected to make "fishing"
inquiry into the matter. It is equally well established and needs no authority that the burden of proving mala fides is on the person making the allegations and such burden is "very heavy". Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be "made than made out" and hence it is necessary for the courts to examine it with extreme care, caution and circumspection. It has been rightly described as "the last refuge of a losing litigant". (Vide Gulam Mustafa Vrs. State of Maharashtra, (1976) 1 SCC 800; Ajit Kumar Nag Vrs. GM (PJ), Indian Oil Corporation Ltd., (2005) 7 SCC 764)."
W.P.(C) No.9716 of 2021 Page 150 of 17413.2. A Division Bench of this Court in Kalinga Warriors Security Service Vrs. State of Odisha, 2023 SCC OnLine Ori 5726 as regards allegation of "mala fides" against the authorities, has observed as follows:
"7.9. The issue of „malus animus‟ was considered in Tara Chand Khatri Vrs. Municipal Corporation of Delhi, AIR 1977 SC 567, wherein the Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.
7.10. Similarly, in E.P. Royappa Vrs. State of Tamil Nadu, AIR 1974 SC 555, the Supreme Court observed as under:
Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. *** The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other, not because of any special status... but because otherwise, functioning effectively would become difificult in a democracy.‟ W.P.(C) No.9716 of 2021 Page 151 of 174 7.11. The Hon‟ble Supreme Court of India in Sukhwinder Pal Bipan Kumar Vrs. State of Punjab, AIR 1982 SC 65; and Shivajirao Nilangekar Patil Vrs. Dr. Mahesh Madhav Gosavi & ors., AIR 1987 SC 294 has made similar observations.
7.12. In M. Sankaranarayanan, IAS Vrs. State of Karnataka, (1993) 1 SCC 54, the Supreme Court observed that:
„12. It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.‟ 7.13. In N.K. Singh Vrs. Union of India, (1994) 6 SCC 98 the Supreme Court of India has held that:
„the inference of mala fides should be drawn by reading in between the lines and taking into account the attendant circumstances.‟ 7.14. There has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. [Vide State of U.P. Vrs. Dr. V.N. Prasad, 1995 Suppl (2) SCC 151;
Arvind Dattatraya Dhande Vrs. State of W.P.(C) No.9716 of 2021 Page 152 of 174 Maharashtra, (1997) 6 SCC 169; Utkal University Vrs. Dr. Nrusingha Charan Sarangi, (1999) 2 SCC 193; Kiran Gupta Vrs. State of U.P., (2000) 7 SCC 719; Netai Bag Vrs. State of W.B., (2000) 8 SCC 262].
7.15. In State of Punjab Vrs. V.K. Khanna, (2001) 2 SCC 330, the Supreme Court of India examined the issue of bias and mala fide, observing as under:
„Whereas fairness. is synonymous with reasonableness-- bias stands included within the attributes and, broader purview of the word malice‟ which in common acceptation means and implies „spite‟ or „ill will. One redeeming feature in the matter of attributing bias or malice and is now well-settled that mere general statements will not be sufficient for the purpose of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice *** In almost all legal inquiries, „intention as distinguished from motive is the all-important factor‟ and in common parlance a malicious act stands equated with an intentional act without just cause or excuse.‟ 7.16. Identical view has been reiterated in Samant Vrs.
Bombay Stock Exchange, (2001) 5 SCC 323.
7.17. In First Land Acquisition Collector Vrs. Nirodhi Gangoli, (2002) 4 SCC 160; and Jasvinder Singh Vrs. State of J&K, (2003) 2 SCC 132, the Hon‟ble Supreme Court held that burden of proving mala fides is very heavy on the person who alleges it.
W.P.(C) No.9716 of 2021 Page 153 of 174Mere allegation is not enough. Party making such allegations is under the legal obligation to place specific materials before the Court to substantiate the said allegations.
7.18. It is settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise the allegations cannot be considered. [Vide State of Bihar Vrs. P.P. Sharma, I.A.S. of Delhi, AIR 1996 SC 326; All India State Bank Officers‟ Federation Vrs. Union of India, (1997) 9 SCC 151; and I.K. Mishra Vrs. Union of India, (1997) 6 SCC 228].
7.19. In Federation of Railway Officers Association Vrs.
Union of India, AIR 2003 SC 1344, the Supreme Court of India has been pleased to hold that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration."
13.3. This Court having perused the record finds that in absence of impleadment of proper and necessary party, declines to examine the ground of mala fides against the Review Committee.
13.4. In absence of material on record to question the bona fide decision of the Review Committee by the petitioner, it is believed that the members of the Review Committee have proceeded to consider the case of the petitioner for premature retirement under Rule W.P.(C) No.9716 of 2021 Page 154 of 174 71 of the OSC appropriately. In this regard, regard be had to R.L. Butail Vrs. Union of India, (1971) 2 SCR 55, wherein it has been observed that, "That the requisite notice in terms of cl. (j) of F.R. 56 was served on the appellant is not in dispute. In Union of India Vrs. Col. J. N. Sinha, (1971) 1 SCR 791 this Court stated that F.R. 56(j) in express terms confers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 55 years if such authority is of the opinion that it is in public interest so to do. The decision further states:
„If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision.‟*** It may well be that in spite of the work of the appellant being satisfactory, as he claimed it was, there may have been other relevant factors, such as the history of the appellant‟s entire service and confidential reports throughout the period of his service, upon which the appropriate authority may still decide to order appellant‟s retirement under F.R. 56(j). Further, there is nothing to show that the impugned order was not in public interest. As aforesaid, Col. J.N. Sinha‟s case, (1971) 1 SCR 791 clearly lays down that the question as to the correctness of such a decision by the appropriate authority, provided it is bona fide, would not be gone into by this Court. We have already negatived the plea of mala fides raised by W.P.(C) No.9716 of 2021 Page 155 of 174 the appellant. Consequently, a plea of lack of bona fides can hardly be entertained. Likewise, the plea that the appropriate authority had not applied its mind must also fail in view of the clear averments made in that regard in the affidavits cited earlier, no reason having been adequately shown to discard those statements as untrue or otherwise unbelievable."
13.5. So long as power is vested in the appropriate authority under Rule 71 of the OSC and said authority has bona fide exercised such power notwithstanding pendency of disciplinary proceeding under the OCS (CCA) Rules or criminal case, it cannot be stated that the Review Committee exercised such power arbitrarily.
Conclusion:
14. To get a Government employee retired prematurely without conducting disciplinary enquiry, as a prelude regard be had to Aureliano Fernandes Vrs. State of Goa, (2023) 7 SCR 772, wherein the scope of Article 311 of the Constitution of India has been succinctly spelt out in the following lines:
"31. This Court has held that in matters of dismissal, removal or reduction in rank of public servants, Article 311 of the Constitution is a manifestation of the essential principles of natural justice. It imposes a duty on the Government to ensure that any such decision against the public servant is preceded by an inquiry that contemplates an opportunity of hearing to be granted to the public W.P.(C) No.9716 of 2021 Page 156 of 174 servant, who is also entitled to make a representation against such a decision.9 Article 311 reads as under :
"311.Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.--
(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply--
(a) where a person is dismissed or
removed or reduced in rank on the
9 Nisha Priya Bhatia Vrs. Union of India, (2020) 13 SCC 56.
W.P.(C) No.9716 of 2021 Page 157 of 174
ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
32. To provide a sense of security of tenure to Government servants, the Framers of the Constitution have incorporated safeguards in respect of the punishment or dismissal or removal or reduction in their rank as provided for in Clauses (1) and (2) of Article 311. At the same time, being mindful of the very same public interest and public good which does not permit that Government servants found to be corrupt, dishonest or inefficient be continued in service, a remedy is provided under the second proviso to Clause (2) of Article 311 whereunder their services can be dispensed W.P.(C) No.9716 of 2021 Page 158 of 174 with, without conducting a disciplinary inquiry.
33. Thus, the golden thread that weaves through Articles 309, 310 and 311 is public interest, directed towards larger public good. Together, they form a triad and symbolize the overarching Doctrine of Public Policy."
14.1. A Division Bench of this Court in Rama Chandra Mohanty, 2021 (I) ILR-CUT 726 laid down that, "15. Needless to say that the object of compulsory retirement is to weed out the dishonest, the corrupt and the deadwood. It is true that if an honest and sincere judicial officer is compulsorily retired, it might lower the morale of his colleagues. Equally, an officer having sound knowledge of the law but lacking in integrity or having a dubious character, is a great danger to the smooth functioning of the judiciary. What is to be weighed is the performance of the officer on an overall evaluation of his entire service period. Above all, his impartiality, reputation, integrity as well as moral character should be taken into account."
15. From the averments and responses in the pleadings, arguments advanced before this Court and short note points submitted by the petitioner with note of submissions on behalf of the opposite parties what falls for consideration is (see, short note points):
W.P.(C) No.9716 of 2021 Page 159 of 174"The Review Committee without waiting for proving of the allegations, without considering the entire service record, basing only on the allegations, recommended for premature retirement of the petitioner which is clear non-application of mind, arbitrary, mala fide and actuated with extraneous reasons."
16. On factual analysis with reference to the scope of examination of legality of acceptance of the recommendation of the Review Committee by the Government of Odisha in Home Department for premature retirement, it is manifest from the inquiry report dated 10.12.2019 submitted by the Inspector General of Police, SAP, Odisha, Bhubaneswar (Annexure-C/1 to the counter affidavit filed on 14.07.2021) that exhaustive fact finding report is prepared based on the following:
"With reference to the aforesaid letter on the subject, the undersigned conducted enquiry into the allegation of illegal transportation/smuggling of timber by 9 th IRBn personnel at 9th SIRBn Headquarters, Jaring, Kalahandi on 06.12.2019. Sri B. Gangadhar, IPS, SP, Kalahandi and Sri B.K. Hota, Deputy Commandant, SAP, Headquarters, Bhubaneswar assisted during the enquiry. All the 9th IRBn personnel were alleged to have involved in illegal procurement/transportation or smuggling, and the personnel acquainted with the fact were summoned, examined and their self written statements were obtained. During the enquiry the certified copies of the documents such as the O.R. lodged by the Forest Department along with the seizure W.P.(C) No.9716 of 2021 Page 160 of 174 memo and the statements of the battalion personnel recorded by the Forest Department, the command certificate, copy of in and out register and CL certificate, etc. were obtained. All the copies of the collected documents and the statements of battalion personnel and forest officers were enclosed herewith as annexures.
*** The Commandant-in-Charge Sri D.N. Behera could not be examined during the enquiry process, as he was found absent from Battalion Headquarters and therefore not available for the purpose on 06/07.12.2019.
***"
After recording synopsis of outcome of examination, enquiry report was submitted.
16.1. Further counter affidavit of the opposite parties filed on 03.08.2023 depicts that:
"3. That a consolidated information sheet in respect of the petitioner along with the recommendation/ report of Special, Director General of Police, Special Armed Police, proceeding available 5 years PAR of the officers, details of Departmental Proceeding initiated against him and the entire service book was submitted before the Review Committee for taking a decision regarding premature retirement. Copy of the documents submitted before the Review Committee is annexed hereto and marked as Annexure-A/3.W.P.(C) No.9716 of 2021 Page 161 of 174
4. That in the nomination roll for premature retirement of Government servants, the Special Director General of Police, Special Armed Police, Odisha, Bhubaneswar, in his recommendation, has stated that, „A criminal case is pending against Shri Behera for theft of forest wood. Departmental Proceedings continuing. Doubtful integrity. Fitness may be assessed accordingly‟."
16.2. The Review Committee comprising of the Principal Secretary, Home Department, Director General and Inspector General of Police, the Controlling Officer of the OAPS Cadre, Director General of Prisons and DCS, Odisha, the Controlling Officer of the Odisha Jail Service Cadre and the representative of General Administration and Public Grievance Department as members under the Chairmanship of the Chief Secretary reviewed the services of the petitioner on the basis of records made available in the Proceeding held on 29.12.2020.
16.3. Considering the fact that both the criminal case and the departmental proceeding being pending with respect to transportation of wooden planks in Government vehicle with the help of staff of the battalion-- which is indicative of "doubtful integrity and recording that the petitioner had already completed 35 years of service" and "attained the age of more than 56 years" and was "going to retire on W.P.(C) No.9716 of 2021 Page 162 of 174 attaining the age of superannuation on 31.07.2024, recommended for premature retirement.
16.4. As it appears instead of proposing to continue with the rigmarole of the disciplinary proceeding when the petitioner was at the verge of retirement, the Review Committee took a decision to retire him prematurely in terms of provisions contained in Rule 71(a) of the OSC.
16.5. Such recommendation on the basis of satisfaction of the Review Committee, being not punitive leading to stigma, nevertheless it is benevolent in the sense that the petitioner may not be deprived of pension and retirement benefit contemplated under Rule 41 of the Odisha Civil Services (Pension) Rules, 1992, which otherwise would entail invocation of provisions of Rule 7 ibid.
16.6. This Court on perusal of record, considering the submissions of the respective parties and being abreast of principles on the subject as cited by counsel for the respective parties and conscious of scope for exercise of power under Article 226 of the Constitution of India for judicial review qua the decision of the Review Committee followed by acceptance by the Home Department for retiring the petitioner prematurely, finds no arbitrariness. It is trite that it is not the decision, rather this Court may examine the W.P.(C) No.9716 of 2021 Page 163 of 174 decision making process. This Court does not find any infirmity in decision making process of the Review Committee.
16.7. There was no arbitrariness in considering the case of the petitioner. As the service record shows proceedings (criminal and departmental) were pending as on the date of Meeting of the Review Committee, no irregularity has been perceived in invoking provisions of Rule 71(a) of the Odisha Service Code.
16.8. Nothing is placed on record to cite that the PARs were not placed before the Review Committee. Rather service book maintained in the Human Resource Management System along with PARs goes to show that the petitioner was once awarded with minor penalty and on most of the occasions he was rated "good". Be that as it may, this Court has limited scope to comment upon the expertise of the Review Committee. So long as Rule 71 of the OSC does not restrict exercise of power by providing with conditions, this Court does not find any reason to interfere with the rational decision taken by the Review Committee.
16.9. Basing on the parameters laid down by the Hon‟ble Supreme Court of India and High Courts, the Review Committee has taken decision being conscious of the fact that the petitioner had completed 35 years of W.P.(C) No.9716 of 2021 Page 164 of 174 service and attained the age of 56 years. By suggesting premature retirement to the Home Department, no prejudice appears to have caused. There being no pecuniary loss caused to the Government of Odisha, appropriate decision has been taken under Rule 71(a) of the OSC, as continuance of the petitioner in service would not be conducive in public interest. The statements of the drivers during inquiry as also the transcript of the conversation between the petitioner and staff/person at Keonjhar goes to speak volumes about the doubtful integrity of the petitioner. Therefore, taking cue from the meaning of "doubtful" and "integrity" as noticed by the Hon‟ble Supreme Court of India in the decisions as referred to supra, it is unequivocal that the Review Committee has taken relevant material and germane factors into consideration to doubt the integrity of the petitioner.
16.10. Emphasis was laid by Sri Manoj Kumar Mishra, learned Senior Counsel on the fact that subsequent to taking decision by the Review Committee, the criminal trial ended with acquittal. Caveat to observe that subsequent event cannot be a ground to set aside the decision of the Review Committee based on material available on the date of Proceeding. Furthermore, such acquittal is not honourable acquittal, rather the criminal case ended by observing that the prosecution W.P.(C) No.9716 of 2021 Page 165 of 174 failed to establish the charges by leading evidence. It may also be taken note of that the disciplinary proceeding-- where charges are to be proved on the principle of preponderance of probabilities-- was pending adjudication on the date of Proceeding of the Review Committee.
16.11. Mere acquittal of the petitioner on failure of the prosecution to prove the criminal charges against the petitioner beyond all reasonable doubts would not restrain the Government of Odisha to continue with the departmental proceeding under the OCS (CCA) Rules. In the instant case as the petitioner had already attained the age of 56 years and served the State for 35 years continuance of disciplinary proceeding beyond the age of superannuation may not be beneficial to either of the parties. Hypothetically, on continuance of disciplinary proceeding not only the petitioner would be deprived of full salary till 31.07.2024, i.e., the age of usual superannuation as he was under suspension, but also may face withholding/withdrawing of pension and retirement benefit in terms of Rule 7 of the Odisha Civil Services (Pension) Rules, 1992. There may be likelihood of the petitioner being found guilty of misconduct in the disciplinary proceeding. In such eventuality, he may have to visit with major penalty like dismissal from W.P.(C) No.9716 of 2021 Page 166 of 174 service which may entail grant of pension and retirement benefit invoking Rule 45 of the Odisha Civil Services (Pension) Rules. Nonetheless, the decision taken by the Government of Odisha on the recommendation of the Review Committee would posit beneficial for the petitioner to live dignified life after retirement as the order of premature retirement would not be treated as punitive measure leading to stigma.
16.12. The decision of this Court in Single Bench rendered in Ajit Kumar Mohapatra Vrs. State of Odisha, 2023 SCC OnLine Ori 6135 relied on by the learned Senior Counsel is distinguishable on facts. It is also noticed that at paragraph 28 of the said decision the following is reflected:
"28. He also referred to the judgment of a Division Bench of this Court in the case of Epari Vasudeva Rao Vrs. State of Odisha, 2014 (II) OLR 381 to demonstrate the scope of judicial review in the matter of premature retirement from service of a Government employee and submitted that when such an order has been challenged in a Court of law, the Court of law has to examine whether any ground or material germane to issue exists or not. The relevant paragraphs which have been relied upon by the learned Senior Counsel appearing for the petitioner that is Paragraphs Nos. 44, 48, 49, 50, 51, 55 & 58 have been quoted herein below:
„*** W.P.(C) No.9716 of 2021 Page 167 of 174
49. In the case of High Court of Judicature at Patna, through R.G. Vrs. Shyam Deo Singh, [Civil Appeal No. 2529 of 2002, disposed of on March 28, 2004, reported at (2014) 4 SCR 541], a three-Judge Bench of the Hon‟ble Supreme Court, held as under:
„9. The subsequent ACRs of the respondent for the years 1997-1998 and 2000- 2001 are sufficiently positive and depicts the respondent as an efficient judicial officer with a good reputation for honesty and impartiality. The respondent was promoted to the post of District and Sessions Judge on 5.9.1998. By Notification dated
17.2.2000 he was promoted to the selection grade of the Bihar Superior Judicial Service with effect from 1.1.1997. Therefore, not only the adverse remark dated 15.12.1995 was not acted upon but subsequent thereto promotion to the highest level in the district judiciary as well as selection grade in the said cadre was granted to the respondent. Promotion to the highest post of District Judge and placement in the selection grade is on an assessment of positive merit and ability. The said promotion (s), therefore, would have the effect of wiping out the adverse remark dated 15.12.1995. Such a view has in fact been expressed in Brij Mohan Singh Chopra Vrs. State of Punjab, (1987) W.P.(C) No.9716 of 2021 Page 168 of 174 2 SCC 188 (para 10). In the light of the above facts, we do not see how the High Court, on the administrative side, can be found to be justified in refusing to continue with the service of the respondent beyond the age of 58 years. The order dated 20.2.2001 passed by the High Court setting aside the said decision, therefore, will have to be affirmed and the present appeal dismissed. We order accordingly."
50. Now, let us see what are the performances of the petitioner during later years. The above discussed two adverse remarks relate to the years 1985 and 1998.
***"
16.13. It is observed that the decision in Brij Mohan Singh Chopra Vrs. State of Punjab, (1987) 2 SCC 188 so far as consideration of adverse entries of remote past has been taken note of in Rajasthan State Road Transport Corporation Vrs. Babu Lal Jangir, (2013) 10 SCC 551 by the Hon‟ble Supreme Court of India, wherein it is stated that, "No doubt, in Gurdas Singh case, (1998) 4 SCC 92 = AIR 1998 SC 1661, it has been specifically remarked that the judgment in Brij Mohan Singh Chopra, (1987) 2 SCC 188 has been overruled in Baikuntha Nath Das, (1992) 2 SCC 299. It would be relevant to point out that even Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 was a case relating to uncommunicated adverse W.P.(C) No.9716 of 2021 Page 169 of 174 entries. Therefore, Brij Mohan Singh Chopra, (1987) 2 SCC 188 was overruled only on the second proposition."
16.14. In Central Industrial Security Force Vrs. HC (GD) Om Prakash, 2022 LiveLaw (SC) 128 = (2022) 2 SCR 203 it has been reiterated as follows:
"In another judgment reported as Secretary to the Government Vrs. Nityananda Pati, (1993) Supp. 2 SCC 391 the order of the High Court setting aside the compulsory retirement for the reason that certain uncommunicated adverse remarks were taken into consideration was set aside by this Court."
16.15. In Ajit Kumar Mohapatra Vrs. State of Odisha, 2023 SCC OnLine Ori 6135 this Court has referred to a decision rendered in Captain Pramod Kumar Bajaj Vrs. Union of India, (2023) 2 SCR 30, which is a case of beyond doubtful integrity. The Hon‟ble Supreme Court held in the said case as follows:
"38. *** It has been repeatedly held that any exercise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent or is on the face of it, so patently arbitrary that it cannot withstand judicial scrutiny, must be struck down. In the instant case, though the appellant has levelled allegations of institutional bias and prejudice against the respondents, particularly against the then W.P.(C) No.9716 of 2021 Page 170 of 174 Chairman, CBDT who was a Member of the Review Committee, the said officer was not joined by the appellant as a party before the Tribunal or the High Court, for him to have had an opportunity to clarify his stand by filing a counter affidavit. Hence, these allegations cannot be looked into by this Court.
39. De hors the aforesaid allegations of institutional bias and malice, having perused the material placed on record, we find merit in the other grounds taken by the appellant. It is noticed that though FR 56(j) contemplates that the respondents have an absolute right to retire a Government servant in public interest and such an order could have been passed against the appellant any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of compulsory retirement was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as „Outstanding‟ and had assessed his integrity as „Beyond doubt‟. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 W.P.(C) No.9716 of 2021 Page 171 of 174 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public."
16.16. The present case is of the nature "doubtful integrity" as opposed to "inefficiency" on account of adverse remarks much less uncommunicated adverse remarks. The petitioner herein having alleged to have abused his official capacity in transportation of wooden planks in the official vehicle with the help of staff of Battalion, the conduct being considered by the Review Committee to be of "doubtful integrity"
recommended premature retirement, which the Government of Odisha in Home Department accepted. Nothing is cited by the petitioner to demonstrate that the opposite parties have taken into consideration W.P.(C) No.9716 of 2021 Page 172 of 174 extraneous material and allowed him to retire prematurely as a punitive measure so as to hold that the decision of the Review Committee fell foul of.
16.17. This Court does acknowledge that the Review Committee thoroughly followed the parameters laid in the Guidelines dated 24.09.2019 (Annexure-7). In the present context it can be stated based on such Guidelines that it is not prudent in the public interest to retain a Government employee in service if he lacks integrity and such employee, whose integrity is doubtful, is liable to be retired prematurely.
17. Under the aforesaid premises, for the discussions made and reasons ascribed hereinabove this Court finds neither non-application of mind on the part of the Review Committee in the decision nor was there any arbitrariness in the decision making process on the part of the oppsoite parties. So far as allegation of mala fide is concerned, as has already been discussed in the foregoing paragraphs, this Court desists from making any observation in this regard. As regards attack of the petitioner on the ground that the decision of the Review Committee in making recommedation for premature retirement is actuated with extraneous reasons, this Court finds no substance to show indulgence.W.P.(C) No.9716 of 2021 Page 173 of 174
18. In the wake of the above, finding no infirmity nor illegality in the Order dated 05.01.2021 of the Government of Odisha in Home Department (Annexure-6) passed in exercise of powers conferred under clause (a) of Rule 71 of the Odisha Service Code accepting the recommendation for premature retirement of the petitioner vide Proceedings of the Review Committee dated 29.12.2020, this writ petition is dismissed, but in the circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 4th November, 2024//Aswini/MRS/Suchitra Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Nov-2024 17:54:56 W.P.(C) No.9716 of 2021 Page 174 of 174