Gauhati High Court
Kiron Chandra Borah vs State Of Assam And Ors. on 4 December, 2000
Equivalent citations: (2003)1GLR337
JUDGMENT I.A. Ansari, J.
1. This is one of those few classic cases in which the object of the employer in removing from service his employee may be acceptable, but the manner of such removal may not stand scrutiny of law. The object, therefore, gets defeated, which may have its own unpleasant reverberations on the society, but such reverberations alone may not be a reason for the Court to approve and uphold such removal of the employee.
2. In a narrow compass, the case of the petitioner may be put as follows ;
The petitioner, a diploma holder in civil engineering, joined the department of Animal Husbandry and Veterinary, Government of Assam, on 27.7.1968 and he was promoted as Assistant Engineer in the same department on 8.8.1985. Considering his merit and seniority, a proposal was mooted by the department concerned for promotion of the petitioner to the post of Executive Engineer. Soon after the promotion of one Sri C. Barsaikia from the post of the Executive Engineer to the post of Joint Director (Engineering) in the said department, the respondent No. 2 allowed the petitioner, vide order, dated 30.12.1989, to hold temporarily the charge of the office of the Executive Engineer in the said department and accordingly, the petitioner continue to hold the charge of the office of the Executive Engineer, at Guwahati, since 1.1.1990. The Government, then, vide order, dated 5.10.1991 (Annexure 5 to the writ petition) allowed the petitioner to cross the efficiency bar at the stage of Rs. 2175 raising his pay to Rs. 2795 with effect from 1.1.1990. As the Government did not promote the petitioner to the post of Executive Engineer permanently, the petitioner approached this Court by making a writ application, which gave rise to the Civil Rule No. 1235/1991. While this writ petition was pending, the Director of the department concerned, again, moved the proposal for promotion of the petitioner as Executive Engineer. However, instead of promoting the petitioner, respondent No. 2, vide order No. VFV-173/94/31, dated 11.4.1994 (Annexure 6 to the writ petition) retired the petitioner compulsorily with immediate effect in public interest and a banker's cheque of Rs. 15,820, being 3 months gross salary was also enclosed with the said order of 11.4.1994. On the same day, by order No. VFV-173/ 94/39, dated 11.4.1994, Respondent No. 2 also retired compuisorily Dr. Hemkanta Phukan, Officer-in-Charge, Intensive Cattle Development Project, Tezpur. The petitioner submitted his written representation, dated 12.4.1994 (Annexure 7 to the writ petition) against the said order of compuisorily retirement. As the Government did not take any action on his representation, the petitioner approached this Court by way of another writ petition, which gave rise to Civil Rule No. 1526/1994. The respondent No. 2, vide order No. VFV-173/94/P1/13, dated 6.7.1994, retired compulsorily one Dr. Blshnu Baishya, Assistant Director, Central Veterinary Stores. After his compulsory retirement, the petitioner was issued letter No. VFV-275/94/43, dated 27.1.1995 (Annexure 8 to the writ petition) issued by the respondent No. 2 directing the petitioner to show cause under Rule 21 of the Assam Services Pension Rules, 1969, as to why penalties prescribed in Rule 21 should not be inflicted on the petitioner on the charges based on the statements of allegations. The said notice of show cause was accompanied by article of charges, statements of allegations, list of witnesses, etc. The petitioner did not, however, receive the said show cause notice, but he came to know of the same vide letter, No. VFV-275/94/62, dated 21.4.1995, of the Joint Secretary of the department of Veterinary and, on the request of the petitioner, copies of the show cause notice, dated 27.1.1995, aforementioned, etc., were furnished to the petitioner. On receipt of the notice along with the charge aforementioned, the petitioner made, on 9.5.1995, an application (Annexure 9 to the writ petition) addressed to the respondent No. 2 with request to allow him to inspect 18 numbers of documents in connection with the charge leveled against him. Thereafter, the petitioner addressed several letters to the department concerned with request to make available documents, in question, for inspection and for obtaining copies thereof, but the authorities concerned allowed the petitioner to inspect only four of the-said documents and insisted on the petitioner that he should file his reply to the said show cause notice. The petitioner further informed the authorities concerned that he had already challenged the order of his compulsory retirement before this Court and since the matter was subjudice, the Government may not pass any order in the disciplinary matter. Thereafter, the department concerned did not proceed with the matter; rather, the respondent No. 2 vide order No. VFV-288/92/Pt./68, dated 12.5.1998 (Annexure 10 to the writ petition) cancelled the earlier order, dated 11.4.1994, of compulsory retirement of Dr. Hemkanta Phukan aforementioned and reinstated him in service without prejudice to the continuation of the departmental proceeding pending against him. It was made clear in this order that as Dr. Phukan had not rendered any service to the government since the date of his retirement, he need not be paid his salary for the period aforementioned. By another order, dated 12.5.1998 (Annexure 11 to the writ petition) the respondent No, 2 appointed Dr. Phukan as Forest Development Officer, Bokakhat. On coming to know about the reinstatement of Dr. Phukan, the petitioner too submitted his appeal before the Government with request to cancel his order of compulsory retirement, dated 11.4.1994. By order, dated 6.7.1998, (Annexure 12 to the writ petition) respondent No. 2 cancelled the Government's earlier order, dated 6.7.1994, aforementioned and reinstated Dr. Bishnu Baishya in service with immediate effect on the same terms and conditions as in the case of Dr. Phukan. The respondent No. 2 vide order, dated 6.7.1998 (Annexure 13 to the writ petition) posted Dr. Bishnu Baishya as Assistant Director (Monitor) in the department of Animal Husbandry and Veterinary. The petitioner, again, submitted representation (Annexure 14 to the writ petition) seeking revocation of his compulsory retirement. By another order, dated 8.10.1998, (Annexure 15 to the writ petition) passed by the Joint Secretary to the department concerned, the period of compulsory retirement of Dr. Bishnu Baishya was directed to be treated as a period spent on duty for the purpose of increment, promotion, etc., except for payment of salary. The petitioner, then, made his representation before the Minister concerned seeking revocation of his compulsory retirement. By order, dated 2.1.1999, (Annexure 17 to the writ petition) the respondent No. 2 directed that Dr. Baishya would be entitled to full benefits including salary on his reinstatement in service. Eventually, by order, dated 26.2.1999, (Annexure 18 to the writ petition) issued by respondent No. 2, the petitioner too was reinstated in service with effect from the date of his taking over the charge pending departmental proceeding and by the same order, the writ petitioner was posted as Assistant Engineer in the Directorate of Animal Husbandry and Veterinary and the petitioner accordingly joined the said post on 1.3.1999. However, by another order, dated 9.4.1999, (Annexure 20 to the writ petition) the respondent No. 2 withdrew the order of reinstatement or the petitioner with immediate effect. In the order withdrawing the direction for reinstatement of the petitioner, it was stated that there was no provision in FR.56 for revocation of the order of compulsory retirement. This order, dated 26.2.1999 also made it clear that the earlier order, dated 11.4.1994, compulsorily retiring the petitioner had been passed on the ground that the petitioner had outlived his utility and was of doubtful integrity. By this notification, the petitioner was directed to submit his papers relating to retirement benefits, etc. The petitioner, now, claims that since the date of his appointment, he has been working sincerely and honestly to the satisfaction of all concerned and to the knowledge of the petitioner, there is no adverse entry or remark in his service record and at no point of time, he was charged with any allegation of misconduct.
3. The petitioner has, therefore, approached this Court with the help of his present application made under Article 226 of the Constitution of India seeking issuance of appropriate writ(s) setting aside and quashing the impugned order, dated 11.4.1994 (Annexure 6 to the writ petition) and 9.4.1999 (Annexure 20 to the writ petition) aforementioned and for necessary consequential releifs.
4. The respondents have filed their affidavit-in-opposition, their case being, briefly stated, thus : Since the petitioner was retired compulsorily in public interest under the provisions of FR 56(b), his retirement was neither arbitrary nor mala fide. The petitioner has falsely submitted that he did not, initially, receive the notice of show cause containing the charge and statement of allegation. The petitioner had accepted the order of his compulsory retirement and vide Civil Rule No. 1526/1994 prayed for release and payment of his provident fund and other post-retiral benefits, such as, pension, gratuity, etc. On the basis of the Civil Rule aforementioned, Misc. Case No. 373/96 was registered, but the petitioner has concealed the fact that vide order, dated 27-03-96, this misc. case was finally disposed of with the following directions: "Amount of Provident Fund and other pensionary benefits such as, pension, Gratuity, Group Insurance be paid to the petitioner in accordance with law and subject to recovery if any recovery to be made from the petitioner as permissible under the Law/Rules/."The retirement orders of not only of the writ petitioner, but also of Dr. Baishya and Dr. Phukan aforementioned were passed erroneously and as soon as the revocation/cancellation of the compulsory retirement was brought to the notice of the respondents concerned, the same was cancelled with the approval of the Minister-in-charge of the department concerned. Similarly, the reinstatement orders of Dr. Baishya and Dr. Phukan were also cancelled. There was no intention on the part of the Govt. to cast any aspersion on the conduct or character of the Govt. employees, while passing the order of compulsory retirement. The work/performance of these officers including the Writ-petitioner were assessed by a Screening Committee constituted by the Govt. and the committee opined that the officers had outlived their utility as Govt. servant and their continuance in Govt. service in future was detrimental to the public interest. As such, on the basis of the opinion of the Screening Committee, they were retired compulsorily under FR 56 (b). Since there is no provision under FR 56 (b) for revocation of the order of compulsory retirement, action was taken to cancel the order of reinstatement of not only the petitioner, but also of Dr. Bishnu Baishya and Dr. H.K. Phukan. There is no illegality and/or infirmity in issuing the order, dated 26.2.1999, aforementioned and it was passed as a corrective measure. .
5. I have carefully perused the materials on record including the impugned orders. I have heard Mr. A.K. Bhattacharjee, learned Senior counsel for the petitioner, and Mr. H. Mahanta, learned Govt. Advocate appearing on behalf of the respondents.
6. Projecting the case of the petitioner, Mr, Bhattacharjee has submitted that the petitioner, initially, joined the department concerned way back on 27.7.1968 and thereafter, he was promoted, on 8.1.1985, to the post of Assistant Engineer. It cannot, therefore, be said, submits Mr. Bhattacharjee, that the petitioner had no utility in the department, and, at least, till 8.1.1985, the petitioner's service was found satisfactory and that was why, he was so promoted. Thereafter too, points out Mr. Bhattacharjee, a proposal was mooted in the department concerned as far back as on 5.5.1989 to promote the petitioner as Executive Engineer and, in fact, upon promotion of Sri C. Barsaikla to the post of Joint Director, the petitioner was allowed to hold the charge of the office of the Executive Engineer in the said Directorate. This is yet another circumstance, which shows, according to Mr. Bhattacharjee, that the petitioner was working sincerely in the department concerned and the department had nothing against him so much so that on 5.10.1991, the Government of Assam, vide Annexure E to the writ petition, points out Mr. Bhattacharjee, allowed the petitioner to cross the Efficiency Bar with effect from 1.1.1990. This shows, contends Mr. Bhattacharjee, that till, at least, 510.1991, the petitioner's service was found to be satisfactory by the Government. Reliance to support his contention is placed by Mr. Bhattacharjee on Swami Saran Saksena v. State of U.P. (AIR 1980 SC 269).
7. It has been submitted by Mr. Bhattacharjee that the petitioner was once compulsorily retired from service on 11.4.1994 and, similarly, Dr. H .K. Phukan and Dr. B. Baishya too were compulsorily retired vide orders, dated 11.4.1994 and 6.7.1994, respectively. It has also been submitted by Mr. Bhattacharjee that after his retirement, the petitioner was served with a notice to show cause against a charge, which was to the effect that he had certified a false bill amounting to Rs. 58,000, though the work of earth-filling was not undertaken at all at the site and as an Executive Engineer, he ought not have certified the bill without verifying the works at the site. Though the petitioner, submits Mr. Bhattacharjee, applied for inspection of certain documents and to allow him to take copies thereof, only some of the documents were made available for inspection by the petitioner. This shows the unfair attitude of the authorities concerned. So contends Mr. Bhattacharjee.
8. Pausing at this stage, Mr. Bhattacharjee has pointed out that the power vested in the Government to retire its employee under FR 56(b) cannot be used as a substitute for departmental proceeding and/or for not holding of the departmental proceeding and/or for avoiding the burden of proving the charge brought against the delinquent concerned. In the case at hand, submits Mr. Bhattacharjee, the very fact that accusation was brought against the petitioner to the effect that he had passed a bill without verification of the work at the shows, contends Mr. Bhattacharjee, that the petitioner has been removed malafide and with ulterior motives by way of compulsory retirement instead or taking the risk of proving the charge against him in a regular departmental proceeding.
9. Support for his above contentions is sought to be derived by Mr. Bhattacharjee from the decisions rendered in Lohit Chandra Sarma v. State of Assam and Anr., reported in 2000 (3) GLT 72, Baikuntha Nath Das and Anr. v. Chief District Medical Officer, reported in (1992) 2 SCC 299, Sukhdeo v. Commissioner, Amravati Division, Amravati and Anr., reported in (1996) 5 SCC 103, Md. All Saikia v. Meghaiaya State Electricity Board and Ors., reported in 1998 (1) GLT 82, Bishnu Baishya v. State of Assam and Ors. reported in 2000(2) SC 1368, Ram Ekhal Sharma v. State of Bihar and Anr., reported in AIR 1990 SC 1368, Swami Saran Saksena v. State of Uttar Pradesh reported in AIR 1980 SC 269 and R. Pulhunainar Alhithan and Ors. v. P.M. Pandian and Ors., reported in (1996) 3 SCC 624.
10. In support of his submission, Mr. Bhattacharjee has also referred to (1990) 3 SCC 504 and AIR 1998 SC 3058.
11. Be that as it may, submits, Mr. Bhattacharjee, Dr. Phukan and Dr. Baishya were reinstated before the petitioner and on coming to know of the same, the petitioner also made a representation for reinstatement and he was accordingly reinstated, but he was again, arbitrarily, removed by way of compulsory retirement.
12. Controverting the above submissions made on behalf of the petitioner, Mr. Mahanta has submitted that though the petitioner had filed Civil Rule No. 1526/1994 challenging his compulsory retirement, he gracefully accepted his pension, gratuity, etc., and having accepted the same, he cannot, now, challenge the order compulsorily retiring him from service.
13. It is also submitted by Mr. Mahanta that no order of compulsory retirement is subject to review and since it subsequently came to the notice of the department concerned that there was no provision for review or appeal of the order of compulsory retirement of a government employee, the department concerned had no option but to set things right and accordingly respondent No. 2 issued the impugned order, dated 9.04.1999, compulsorily retiring the petitioner from service. It is further submitted by Mr. Mahanta that the Screening Committee, on examing the service career of the petitioner, found that the petitioner had outlived his utility in the said department and, hence, the Committee recommended his compulsory retirement from service, which recommendation the Government acted upon without any malice not only in the case of the petitioner alone, but also in the case of other similarly situated persons, such as, Dr. H.K. Phukan and Dr. B. Baishya and, hence, the petitioner cannot legally express any grievances thereto.
14. Reacting to the above submissions made on behalf of the respondents, Mr. Bhattacharjee has contended that the submissions, ' made on behalf of the respondents, are misconceived. In this regard, Mr. Bhattacharjee has pointed out that the petitioner did not withdraw the Civil Rule No. 1526/1994 aforementioned and while the Civil Rule was pending, the petitioner applied for necessary directions and accordingly, this Court directed that the amount of provident fund, etc., be paid to him. Acceptance of this post-retirement benefits did not, in any way, evaporate, submits Mr. Bhattacharjee, the grievances of the petitioner made in Civil Rule No. 1526/1994 that his compulsory retirement from service was illegal, arbitrary and mala fide.
15. Even if for a moment it is assumed, submits Mr. Bhattacharjee, that the order of compulsory retirement cannot be reviewed and/ or appealed against, the fact remains that this Court is, now, required to determine if in the given facts and circumstances of the case and on the basis of the service record of the petitioner, he could have been compulsorily retired by taking resort to FR 56(b). In this regard, submits Mr. Bhattacharjee, consistent view of law is that compulsory retirement can be resorted to not as a measure of punishment but on consideration of entire service record. The service record of the petitioner produced by the respondents, submits Mr. Bhattacharjee, may be perused, but if nothing adverse to his integrity, character, reputation or performance is reflected from his service records, the order retiring him from service may be set aside.
16. Before entering into the merit of the conflicting submissions made before me on behalf of the parties, it is apposite to ascertain the position of law vis-a-vis the controversies involved in the present writ petition.
17. With the above end in view, let me first, refer to the case of Baikuntha Nath Das (supra), wherein after considering its earlier decisions, the Supreme Court has authoritatively laid down the principles governing compulsory retirement as follows:
"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an Appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential record/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." (Emphasis is supplied)
18. What the Supreme Court has laid down in Baikuntha Nath Das' case (supra) indicates that the order of compulsory retirement is passed on the subjective satisfaction of the Government and in exercise of its power of judicial review, the High Court would not examine the matter as an appellate court and may interfere only if it is satisfied that the order was passed (a) mala fide or (b) that it was based on no evidence or (c) that it was arbitrary or perverse in the sense that no reasonable person would form the requisite opinion on the given materials.
19. It is also crystal clear from the principles laid down in Baikuntha Nath Das (supra) that compulsory retirement cannot be resorted to as a punishment. In other words, compulsory retirement cannot be resorted to as a substitute for, or in order to dispense, with holding of regular disciplinary proceeding against the employee concerned.
20. From what the Supreme Court laid down in Baikuntha Nath Das (supra), it also becomes clear that the government or the Screening Committee, as the case may be, shall have to consider the entire records of service before taking any decision in the matter, though it has to attach more importance to the records of performance during the later years and that the records to be considered would include entries in the confidential reports/character rolls, favourable as well as adverse.
21. In S. Ramchandra Raju v. State of Orissa, AIR 1995 SC 111, the Apex Court, after referring to the principles laid down in the case of Baikuntha Nath Das (supra), further held as follows :-
"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 retrial benefits including pension, the government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood need to be removed to augment efficiency. Integrity in public service need to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace in public service and injurious to public interest. The entire service record or character rolls or confidential reports maintained would furnish the back drop 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 particularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a government officer." (Emphasis is added)
22. Thus, in S. Ramachandra Raju (supra) too, the Supreme Court reiterated that the entire service records, more particularly the latest ones, should form the foundation for the opinion for exercising the powers under the relevant rules to compulsorily retire a government officer. In this decision, the Supreme Court held that the exercise of power by the Government to compulsorily retire S. Ramchandra Raju was arbitrary, because the government had not taken into consideration his total records of service, but had taken only solitary adverse report of 1987-88 existing against him as the foundation to compulsorily retire him from service and accordingly, the Apex Court quashed the order of compulsory retirement.
23. In State of Gujarat v. Suryakanta Chunilal Shah, (1999) 1 SCC 529, the Apex Court, after discussing, at length, its earlier decisions on compulsory retirement including the decision in the case of Baikuntha Nath Das (supra), found that although there was no entry in the character roll of the government officer that his integrity was doubtful, the Review Committee, on it own, probably on the basis of the FIR lodged against him that he had granted permits to vague and bogus institutions, formed the opinion that he was a person of doubtful integrity and should be compulsorily retired from service and the Supreme Court held that there was no material on the basis of which a reasonable person could form the opinion that the government servant had outlived his unitility as a government servant or that he had lost his efficiency and had become a dead wood. In this decision, the Apex Court further held that the order of compulsory retirement, in the face of the facts of that case, was punitive in nature having been passed for a collateral purpose of his immediate removal rather than public interest and the Division Bench of the High Court was justified in directing reinstatement of the government servant.
24. Thus, the case of Suryakanta Chunilal Shah (supra) affirms the principle that the order for compulsory retirement cannot be punitive in nature and the power to compulsorily retire a government servant cannot be exercised for solitary lapse and/or for collateral purpose of removing the government servant from service as an easier course rather than doing the needful in consonance with the provisions of Article 311(2) for inflicting punishment of removal from service.
25. In the case of Ram Ekbal Sharma (supra), the Apex Court clarified the position of law further by laying down that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant, who was directed to be compulsorily retired from service, the Court in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant or the order has been made bona fide and not with any oblique or extraneous purposes.
26. The principle that a government servant cannot be retired compulsorily as a tool of convenience to remove him from service instead of inflicting punishment in a regularly drawn disciplinary proceeding has been reiterated in the case of Iswar Chand Jain v. High Court of Punjab & Haryana (1999) 4 SCC 579 and on finding in this case that the conclusion of the Full Court of the High Court of Punjab & Haryana to compulsorily retire Shri Iswar Chand Jain was based on the allegation of misconduct which was the subject-matter of enquiry before a judge of the High Court, the Apex Court held that the impugned order of compulsory retirement of Shri Jain, though innocuously worded, was, in fact, an order of removal from service and cannot be sustained.
27. It is worth noticing that in Dinesh Chandra Sangma (supra) the Supreme Court upheld the constitutional validity of the provisions of FR 56(b) on the ground that it does not amount to removal/ dismissal by way of punishment. Hence, it logically follows, as a corollary, that FR 56(b) cannot be resorted to by way of punishment, particularly, for one lapse in service career - no matter how grave the lapse was.
28. I am also tempted to refer to the case of Anoop Jaiswal v. Govt. of India, AIR 1984 SC 636, wherein the Apex Court has succinctly laid down the law on the subject as follows :-
"It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a clock for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employees."
29. From the decisions of the Apex Court catalogued above, it will be clear that the High Court, in exercise of its powers of judicial review, cannot examine the matter relating to compulsory retirement as an appellate court but can, undoubtedly, interfere with such order if it finds that the order of compulsory retirement is arbitrary or perverse. Further, where the government or the Review/Screening Committee, as the case may be, does not consider the entire service records including the entries in the confidential reports/character roils of the government servant, the order of compulsory retirement may become arbitrary. This is so, because it is only on consideration of the entire service records of the government servant that a reasonable person can form the requisite opinion that the government servant is inefficient or a dead wood and has outlived his utility or that he is of a doubtful integrity. Furthermore, even where the order of compulsory retirement is couched in innocuous language and does not make any imputation against the government servant sought to be compulsory retired from service, the Court has, in appropriate cases, the power to lift the veil and look into the relevant materials and if the Court finds that the order of compulsory retirement is actually punitive in nature, it is not bona fide and is based on allegation of misconduct against the government servant and has been passed for the collateral purpose of immediately removing him from service, the Court will set aside the order of compulsory retirement. Hence, mere form and language in which the order is worded is not material. What is material is as to why really the order has been passed.
30. Keeping in view the law as discussed above, let me now, turn to the factual matrix of the present case. On reverting to the case at hand, what attracts my eyes, most prominently, is that the essential facts of this case are not in dispute, namely, that the petitioner, being a diploma holder in Civil Engineering, was brought in service, way back on : 27.7.1968, as a drafts man and he was promoted to the post of Assistant Engineer on 8.1.1985. This shows that till 8.1.1985, the petitioner's performance, as rightly contended by Mr. Bhattacharjee, was found to be satisfactory. This apart, as per the department concerned, there was a proposal for his regular appointment as Executive Engineer in the said department and pending action on this proposal, the petitioner was allowed to hold the charge of the office of the Executive Engineer in his department. This is yet another circumstance, which indicates that petitioner's character was not found objectionable till 30.12.1989, that is, the date on which he was allowed to hold the charge of the office of the Executive Engineer. Thereafter too, the petitioner was allowed to cross Efficiency Bar as late as on 5.10.1991. This too shows that till 5.10.1991, the petitioner was found suitable for crossing efficiency bar. This, in turn, shows that the petitioner had not outlined his utility till 5.10.1991 nor was his integrity under scanner. Thus, the reference made by Shri Bhattacharjee to the case of Swami Saran Saksena (supra) is not misplaced inasmuch as the observations of the Apex Court in this case show that crossing of efficiency bar, in the opinion of the Apex Court, is, indeed, a favourable circumstances for an employee, who is compulsorily retired from service. In the face of these materials, it cannot be said that the petitioner's entire service record was a reflection of his lack of integrity and/or suggestive of his having outlived his utility in the service of the said department. The stand taken by the State Government in their affidavit also does not show that the decision to retire the petitioner was taken on consideration of the petitioner's ACRs and/or Service Record. It does not even indicate that the overall performance of the officer was assessed before the decision to compulsorily retire him was taken.
31. It may be pointed out that at the time of hearing, Mr. Mahanta has produced the confidential report, dated 8.4.1994, which formed the basis for compulsorily retiring the petitioner from service. This report is of the Screening Committee.
32. Upon perusal of the report of the Committee, it does not transpire at all that the Committee had examined the entire service record of the petitioner. What the Committee had done was to look into and consider certain records, other than service records, pertaining to a particular scandal, which had engulfed the department, and found that the petitioner along with others had indulged in malpractice/ fraudulent dealings, which had led to the scandal, and the fraudulent activities indicated, according to the assessment of the Committee, that the petitioner and his colleagues had outlived their utility and brought dispute to the department concerned and accordingly, the Committee recommended that on account of their doubtful integrity and having out-lived their utility in service, the petitioner along with others named in the recommendation of the Committee be retired under FR 56(b).
33. Apart from the fact that Mr. Mahanta has not been able to produce anything from petitioner's service records except the Screening Committee's recommendations to indicate that the past performance of the petitioner in service was unimpressive and/or reflective of his lack of integrity and/or indicative of his having outlived his utility in service, the report of the Screening Committee, as indicated hereinabove, is, I notice, directed against a particular scandal, which involved the department, as a whole, and this scandal, according to the Committee, became possible, because of the mal-practices/ fraudulent activities, which the petitioner and some others named in the said report had indulged in. This shows that the Committee's report was directed against a particular scandal and the compulsory retirement has been suggested as a way out to get rid of the petitioner from service instead of holding regular disciplinary proceeding and taking action against him according to the law,
34. In fact, in the order, dated 9.4.1999 (Annexure 20 to the writ petition) whereby the order of reinstatement of the petitioner was withdrawn and the order for compulsory retirement passed against the petitioner on 11.4.1994 (Annexure-6 to the writ petition) was brought back into force, it is clearly stated that the petitioner was being compulsorily retired by the appropriate authority on being satisfied that he had out lifted his utility and was of doubtful integrity. This shows that though, initially, the order of compulsory retirement, dated 11.4.1994, aforementioned was innocuously worded, the subsequent order, dated 9.4.1999, aforementioned clarifies that the reason for removal of the petitioner was his alleged doubtful integrity.
35. What logically follows from the above is that in the instant case, even though the impugned order of compulsory retirement, dated 11.4.1994, is innocuously worded and does not make any imputation against the petitioner, the Screening Committee recommended compulsory retirement of the petitioner and the government accepted the said recommendation, because the petitioner was allegedly involved in the aforesaid scandal. The impugned order of compulsory retirement is really an order to remove the petitioner from service for a charge of misconduct; it is, thus, punitive in nature and could not have been passed without following the procedure laid down in Article 311(2) or the Constitution. This apart and contrary to the settled position of law, the entire service record of the petitioner including his ACRs were not, as already indicated above, considered by the Screening Committee, which recommended compulsory retirement of the petitioner under FR 56(b).
36. The impugned order of compulsory retirement is, therefore, arbitrary in the sense that no reasonable person could have formed an opinion only on the basis of the reports of the said scandal placed before the Screening Committee that the petitioner had outlived his utility and/or that he was an officer of doubtful integrity and should be compulsorily retired from service in the public interest under FR 56(b).
37. What, thus, crystallizes from the above discussion is that the order compulsory retiring the petitioner from service is wholly illegal and cannot be allowed to stand good on record. At the same time, however, I must hasten to add that this conclusion does not mean that at no future time, the petitioner can be removed from service.
38. In the result and for the reasons discussed above, this writ petition succeeds. The impugned orders, dated 11.4.1994 (Annexure 6 to the writ petition) and 9.4.1999 (Annexure 20 to the writ petition) are set aside and quashed and the petitioner is directed to be reinstated in service with effect from 11.4.1994 and with all service benefits including seniority treating his service carrier as uninterrupted subject to the condition that he has not attained the age or superannuation. If he has already attained the age of superannuation, he shall be given all back wages, full pension and other lawfully due post-retrial benefits treating his services as uninterrupted. The respondents are, however, left to take such disciplinary or penal action against the petitioner as the facts and circumstances of the case may warrant and as may be permissible under the law.
39. Before parting with this writ petition, I may point out that though it has been agitated before me that the order, dated 26.2.1999, reinstating the petitioner in service was illegal and without jurisdiction on the ground that no such power of review vests in the Government, I have consciously refrained from dealing with this aspect of the matter inasmuch as not only that the order, dated 9.4.1999, aforementioned withdrawing the reinstatement order was challenged in this writ petition, but that even the order, dated 11.4.1994, whereby the petitioner was compulsorily retired, stood challenged. It, therefore, did not remain material for the disposal of this writ petition as to whether the Government had any power to review the order, dated 11.4.1994, aforementioned or not.
40. In view of the fact that this Court has formed the opinion that the order, dated 11.4.1994, aforementioned is bad in law and must be struck down, this Court need not go into the question as to whether the order, dated 26.2.1999, whereby the order, dated 11.4.1994, was withdrawn was legal or not.
41. The parties are left to bear their respective costs.