HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 97 of 2007(S)
Ajit Narayan
- V/s -
Union of India and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Petitioner Shri Ajit Narayan in person.
Shri Vikram Singh for respondent No.1.
Shri R.N. Singh, Senior Advocate, with Shri
Arpan Pawar for respondent No.2.
Shri Brian D'Silva, Senior Advocate, with
Ms. Kanak Gaharwar for respondent No.3.
Shri R.G. Mahajan for respondent No.4.
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Whether approved for reporting: Yes / No.
ORDER
/08/2010
Challenging the order-dated 28.9.2007 – Annexure P/31,
compulsorily retiring the petitioner, petitioner has filed this writ petition.
2- It is the case of the petitioner that in pursuance to a
selection conducted by a duly appointed selection committee, petitioner
was appointed as a Registrar in respondent No.2’s institute on 22.12.90.
He had been performing his duties sincerely, honestly and with
dedication, when all of a sudden he has been compulsorily retired by the
impugned order. It is the case of the petitioner that he is a Group A
officer and the establishment of respondent No.2 was initially registered
as a Society under the Societies Registration Act, 1860. It was earlier
known as Maulana Azad College of Technology and was a Regional
Engineering College functioning under the joint supervision of the
2
Central Government and the State Government. Subsequently, in the
year 2002, it was declared as a National Institute of Technology and was
renamed as Maulana Azad National Institute of Technology Society,
Bhopal. Memorandum of Association and documents evidencing
incorporation of the Society are Annexure P/1. It is further stated that the
University Grants Commission (hereinafter referred to as ‘UGC’)
exercising powers conferred by Section 3 of the University Grants
Commission Act, 1956 has issued a Notification – Annexure P/2, on
26.6.2002, granting the status of deemed university to respondent No.2
and circulars in this regard have been issued vide Annexure P/3 on
29.6.2002. According to the petitioner, the service conditions of the
employee after the change made in the set up of respondent’s
establishment, as indicated hereinabove, continued to remain the same
till resultant changes were made by the Central Government. It is the
case of the respondent that in the Institute in question the non-teaching
staff retire in accordance to the Circular – Annexure P/10 dated
12.11.2003 and as the provisions of Fundamental Rule 56 (j) [hereinafter
referred to as ‘FR 56 (j)’], applicable to the central government
employees are not applicable, it is stated that compulsory retirement of
the petitioner under the aforesaid rule is illegal.
3- By bringing on record various documents and circulars in
this regard, petitioner has tried to demonstrate before this Court that he
has an unblemished career, but ever since there has been change in the
set up of the Institute in question, petitioner was being harassed and
somehow or the other respondents were trying to device means to
remove the petitioner from the post. Initially, petitioner’s services were
tried to be terminated, but on a petition filed by the petitioner before this
Court in the light of the order passed on 20.7.94, in M.P.No.2726/1993,
petitioner was reinstated and thereafter, again the respondents were
somehow trying to device methods to remove the petitioner from
service. It is stated that with a design to remove the petitioner from the
post in question, provisions of FR 56 (j) has been applied and the
petitioner compulsorily retired. Apart from contending that the
3
provisions of FR 56 (j) are not applicable to the respondent’s institute,
the petitioner, who has appeared in person, has taken me through the
various documents filed by him as Annexure P/1 to P/31 and by
referring to the procedure followed for removing the petitioner from
service, it is emphasized by him that action is taken on the basis of an
enquiry conducted behind the back of the petitioner and on the basis of
an enquiry report submitted vide Annexure P/24, with regard to his
appointment and entitlement to continue in service. It is argued by the
petitioner that in the enquiry conducted, petitioner was not noticed, he
was not heard, behind his back evidences were collected and based on
the enquiry report the Board of Directors took a decision to compulsorily
retire the petitioner. Referring to the decision of the Board of directors
dated 5.12.2005, available on record as Annexure R-2/8, and the
subsequent decision again taken by the Board ratifying the earlier
decision dated 5.12.2005, on 29.10.2006, and the impugned action taken
thereof, petitioner submitted that the Board of Directors have taken
action only on the basis of the enquiry report without assessing the
overall service record of the petitioner. It is the case of the petitioner that
in the present case compulsory retirement of the petitioner is nothing but
an act for punishing the petitioner, without holding a proper enquiry, in
violation of the principles of natural justice and, therefore, the same is
unsustainable. By taking me through the documents filed, the
representation submitted and the other material available on record
petitioner tried to emphasize that the respondents have acted in a biased
and malafide manner and only to harass and victimize the petitioner the
impugned action is taken. It was argued by him that respondents have in
total disregard to the principles governing compulsory retirement, to
weed out dead wood, have acted in a manner which is impermissible
under law and, therefore, he prays for interference into the matter.
4- Shri R.N. Singh, learned Senior Advocate for
Institute/respondent No.2, supported the order passed by the Institute and
pointed out that petitioner is a Group-A employee, as is evident from the
Staffing Pattern – Annexure P/6 and as the Fundamental Rules have
4
been adopted by the Institute, it is argued by Shri R.N. Singh, learned
Senior Advocate, that the provisions of FR 56 (j) would apply to all
Group A and Group B employees and the action taken by the Institute
for compulsorily retiring the petitioner under FR 56 (j) is said to be
proper. Referring to the Notifications available on record filed by the
petitioner as Annexures P/8, P/9, P/10 and P/11 and the decision of the
Board of Directors Shri R.N. Singh, learned Senior Advocate, tried to
emphasize that the contention of the petitioner that FR 56 (j) does not
apply is wholly misconceived.
5- Shri R.N. Singh, learned Senior Advocate, further pointed
out that appointment of the petitioner was found to be contrary to the
rules, it was made on a post reserved for a scheduled caste candidate and
even though petitioner was below the age required for appointment to
the post, in an illegal and arbitrary manner undue benefit was conferred
on the petitioner and he was appointed illegally. When complaints in this
regard were received in the year 2001, an enquiry was constituted and in
the enquiry the report indicated that petitioner’s appointment itself in the
department was illegal. Referring to the enquiry report – Annexure P/4
and the findings recorded therein, learned Senior Counsel emphasized
that petitioner’s appointment itself being illegal action taken by the
respondents are proper. Thereafter, taking me through the service
records of the petitioner and the performance appraisal for the years
2003-04, 2005-06 and 2006-07, filed collectively as Annexure R-2/10 to
R-2/12, and available from page 40 to page 63 of the return filed by the
respondents, Shri R.N. Singh emphasized that the entire service record
of the petitioner was bad, his performance was always poor and below
standard and, therefore, assessing the overall performance the Board of
Directors took a decision to compulsorily retire the petitioner and
accordingly the action is taken. Referring to the decision of the Board of
Directors on 5.12.2005 vide Annexure R-2/8 and ratified vide Annexure
R-2/9 on 29.10.2006, learned Senior Advocate submitted that as
petitioner is compulsorily retired, considering his overall performance
and suitability to the department, the action taken does not warrant any
5
interference. Placing reliance on the following judgments namely;
Bishwanath Prasad Singh Vs. State of Bihar and others, (2001) 2
SCC 305; State of Gujarat Vs. Umed Bhai M. Patel, (2001) 3 SCC
314; Jugal Chandra Saikia Vs. State of Assam and Another, (2003) 4
SCC 59; and, finally a judgment of the Supreme Court in the case of R.
Vishwanatha Pillai Vs. State of Kerala and others, (2004) 2 SCC
105, Shri R.N. Singh, learned Senior Advocate, argues that in the present
case petitioner is only compulsorily retired after considering his overall
service performance, the same does not amount to punishment and,
therefore, interference into the matter is not warranted. Accordingly,
learned Senior Advocate submitted that there is no merit in the claim
made by the petitioner and, therefore, the petition be dismissed.
6- Shri Vikram Singh, learned counsel appearing for
respondent No.1, apart from adopting the arguments advanced by Shri
R.N. Singh, learned Senior Advocate, points out that the institute in
question is managed by Central Government and after it became a
National Institute of Technology, the service conditions at par with the
same applicable to the Indian Institute of Technology, New Delhi has
been made applicable. Taking me through the averments made by
respondent No.1 in paragraphs 10 and 11 of the reply, and the
documents available on record, it is argued by Shri Vikram Singh that
vide notification – R-1/2 dated 9.11.2003, the rules and regulations
applicable to Indian Institute of Technology, New Delhi has been
adopted and as the provisions of FR 56 (j) is applicable to the Indian
Institute of Technology, New Delhi the same governs the service
conditions of the petitioner also. By referring to the rules applicable to
the Indian Institute of Technology, New Delhi – Annexure R-1/4, Shri
Vikram Singh submitted that petitioner’s case is governed by the
provisions of FR 56 (j) and in applying the same respondents have not
committed any error. That apart, inviting my attention to the statutory
rules now framed in the matter of prescribing the service conditions for
Registrars of the National Institute of Technology i.e…The National
Institute of Technology [NITs] Registrars Recruitment Rules 2008, Shri
6
Vikram Singh submits that the rules applicable to Group A employees of
the Central Government are also applicable to the Registrars and,
therefore, the respondents have not committed any error in taking action
under the said rules. That apart, taking me through the enquiry report –
Annexure P/24 separately filed by respondent No.1; the appraisal reports
of the petitioner for the years 2004-04, 2004-05 and 2005-06, Shri
Vikram Singh emphasized that compulsory retirement is not a
punishment and as action is taken by the Board of Directors after
evaluating the service rendered, no case is made out for interference.
Placing reliance on various judgments to show that compulsory
retirement is not a punishment and for compulsorily retiring an
employee, the principles of nature justice are not applicable, Shri
Vikram Singh tried to justify the action of the respondents.
7- Shri Brian D’Silva, learned Senior Advocate appearing for
respondent No.3, argued on the same lines as was done by Shri R.N.
Singh and further submitted that as petitioner is proceeded against and
action is taken for compulsorily retiring him, no case is made out for
interference.
8- Shri Mahajan, learned counsel appearing for respondent
No.4, adopted the arguments canvassed by learned counsel for
respondents 1 to 3, and sought for dismissal of this writ petition.
9- Having heard learned counsel for the parties at length and
on consideration of the totality of the facts and circumstances, this Court
is of the considered view that following two questions arise for
consideration in this writ petition:
The first question would be as to whether the provisions of
FR 56 (j) applies; and, the second question would be as to
whether the order of compulsory retirement passed meets
the legal parameters required and is in accordance to law?
10- As far as the first question is concerned, it is clear that
initially the Institute of respondent No.2 was a registered society, but it
became a National Institute of Technology by virtue of the Notification
issued by the Central Government and subsequently it became a deemed
7
university. It is also an admitted position that the institute is fully owned
and governed by the State Government and functions in accordance to
the circulars and policies laid down by the Ministry of Human Resources
and Development, Government of India. It is also an admitted position
that the Institute has been granted the status of National University by
UGC. Documents available on record are sufficient to hold so. As far as
applicability of the service rules are concerned, after conversion of the
Maulana Azad National Institute, Bhopal as National Institute of
Technology, Government of India and the Ministry of Human Resources
and Development issued the circular – Annexure P/4 on 26.6.02, and
indicated in the said circular in paragraph 3 that every person employed
in the Maulana Azad College of Technology, Bhopal immediately before
conversion shall hold office or service in the National Institute of
Technology, Bhopal at the same remuneration and upon the same terms
and conditions, with the same rights and privileges and the change, if
any, to be brought in the light of the new memorandum of association,
shall be referred to the Central Government for decision on case to case
basis. The faculty and staff pattern of the Institute as is evident from
Annexure P/6, filed by the petitioner, clearly indicates that the post of
Registrar is a Group A post and petitioner admits to the same in the writ
petition.
11- In the office memorandum and notifications – Annexures
P/7 and P/8, Government of India has laid down rules and regulations
governing service conditions of employees of the National Institute of
Technology. A perusal of Annexure P/8 indicates that for the purpose of
conduct and discipline rules, leave rules, period of probation,
recruitment, the rules governing the same and applicable in the Institute
of Technology, New Delhi is made applicable. Similarly various other
rules have been adopted. The Institute also issued a circular – Annexure
P/9 on 8.4.2004, laying down the service condition of employees of the
Institute and it is stated that in the matter of retirement and
superannuation, the circular Annexure P/10 dated 12.11.2003 would be
applicable. Petitioner wants this Court to hold that in the light of the
8
circulars – Annexures P/9 and P/10, screening of an employee for
compulsory retirement can be done only beyond the age of 58 years and
as petitioner has not reached the age of 58 years, he cannot be
compulsorily retired and, therefore, it is stated that FR 56 (j) does not
apply.
12- As far as Annexure P/10 is concerned, it speaks about
retirement on superannuation. The circular – Annexure P/10 dated
12.11.2003, is a memorandum issued by the Government of India in the
Ministry of Human Resources and Development with regard to
extension of service of the employees after 58 years. The said circular is
being misconstrued by the petitioner. This circular does not contemplate
a provision akin to FR 56 (j), for compulsorily retiring an employee. On
the contrary, this circular relates to screening of an employee to find out
his suitability of continuing in service after he has completed 58 years of
age upto the age of 60. If the aforesaid circular is perused, it would be
seen that this circular only speaks about extension of service beyond the
age of 58 years and does not speak about compulsory retirement of an
employee. FR 56 (j), on the other hand reads as under:
“FR 56 (j): Notwithstanding anything contained in this
rule, the appropriate authority shall, it is of the opinion that
it is in the public interest so to do, have the absolute right to
retire any Government servant by giving him notice or not
less than three months in writing or three months’ pay and
allowances in lieu of such notice….
(i) If he is, in Group ‘A’ or Group ‘B’ service or post in
a substantive, quasi-permanent of temporary capacity
and had entered Government service before attaining
the age of 35 years, after he has attained the age of
50 years.
(ii) In any other case after he has attained the age of
fifty-five years.”
and, contemplates a provision for retiring an employee
compulsorily on public interest. That being so, contention of the
9
petitioner that the circular – Annexure P/10 contemplates compulsory
retirement only after 58 years is not correct. On the contrary, if the
circular – Annexure P/11 dated 21.7.2004 clarifying circular – Annexure
P/10 dated 12.11.2003 is seen, it would be clear that even for the
purpose of screening of an employee after crossing the age of 58 years,
for the purposes of superannuation after crossing the age of 58 years, the
principle akin to FR 56 (j) is held to be applicable. It is, therefore, clear
that the scope of FR 56 (j) and the circular – Annexure P/10 are entirely
different.
13- Accordingly, I am of the considered view that the
contention of the petitioner to the effect that compulsory retirement in
the respondents’ institute is governed by the Circular Annexure P/10,
dated 12.11.2003 is not correct. The said circular pertains to screening of
the employees, for the purposes of their continuation in service beyond
the age of 58 years (i.e… the age of superannuation) and does not, in any
manner whatsoever, prescribe procedure for compulsory retirement of a
person.
14- In this regard, if the principle laid down by the Supreme
Court in the case of Bishwanath Prasad Singh (supra), relied upon by
Shri R.N. Singh, learned Senior Advocate, is taken note of, it would be
seen that in that case also after taking note of the judgment and
directions of the Supreme Court in the case of All India Judges’
Association case, 1993(4) SCC 288. The distinction between
compulsory retirement and continuation of an employee beyond the age
of 58 years is taken note of and the distinction pointed out. The same
position is applicable in the present scenario also.
15- As far as applicability of FR 56 (j) is concerned, the
Notifications and the circulars issued by the Central Government vide
Annexures P/8 and P/9 clearly establishes that the service conditions of
the employees of the National Institute of Technology are based on the
service conditions of the employees working in the Central Government
and for the purpose of leave rules, conduct and disciplinary appeal rules
etc, the rules applicable to Indian Institute of Technology, New Delhi
10
has been made applicable. The rules applicable to Indian Institute of
Technology, New Delhi filed by Government of India alongwith their
return – Annexure R-1/4 clearly indicates that the provisions of the
Fundamental Rules and Supplementary Rules are applicable and,
therefore, if the totality of the circumstances is evaluated, it has to be
held that FR 56 (j) is adopted by the respondents and is made applicable
to the Institute in question. That apart, the statutory rules now framed
i.e…. The National Institute of Technology [NITs] Registrars
Recruitment Rules, also makes applicable the rules of the Central
Government, particularly the Fundamental Rules, to employees of the
Institute, particularly the Registrars and, therefore, the first ground of
challenge made by the petitioner is devoid of substance and cannot be
accepted. The same is accordingly rejected.
16- As far as the second ground is concerned, if the facts of the
present case are scrutinized, it would be seen that petitioner was
appointed on 22.12.1990. It seems that certain complaints were received
against him and, therefore, after instructions from the State Government,
an enquiry was ordered into the facts leading to appointment of the
petitioner. The complaints were particularly with regard to the
educational qualification of the petitioner, his entitlement to be
appointed on the post of Registrar, reservation to the post of Registrar
etc. The enquiry report is available on record. It is filed by the petitioner
as Annexure P/24 and by respondent No.2 as Annexure R-2/5. A perusal
of this report indicates that the enquiry was ordered on the basis of
certain complaints received by the State Government with regard to
appointment of the petitioner by Scheduled Caste and Scheduled Tribe
Persons Association. The points of enquiry are with regard to
qualification of the petitioner, his entitlement to be appointed to the post
of Registrar and the fact of Reservation Policy being violated in the
appointment. The report of the enquiry officer indicates that the enquiry
officer visited the office of the Institute and took the statements of Dr.
M.C. Soni, Principal, MACT, Bhopal; Shri R.K. Baghel, Liaison
Officer, Scheduled Caste and Scheduled Tribe; and Shri Manoj
11
Shrivastava, Assistant Registrar (Establishment), scrutinized certain
records and gave a finding holding that the petitioner was appointed
contrary to the provisions of law. It is the case of the petitioner that in
this enquiry he was never heard, he was not permitted to participate and
the report was given on the basis of material collected behind his back.
The said assertion of the petitioner seems to be correct as in the inquiry
report there is no mention with regard to hearing of the petitioner or
recording of his defence. Even in their reply, none of the respondents
contend that petitioner was heard in the enquiry and the report is
submitted after hearing him. That being so, it has to be held that the
enquiry in question and the report submitted as contained in Annexure
P/25 and Annexure R-2/5, is based on an enquiry conducted exparte,
behind the back of the petitioner and without granting him any
opportunity of hearing. On the basis of the enquiry report, the Principal
of the Institute placed the matter for consideration and the Board of
Directors considered the enquiry report against the petitioner and in its
meeting held on 5.12.2005 – Annexure R-2/8, decided to compulsorily
retire the petitioner in the light of the enquiry report received against
him. The agenda of the meeting and the decision approved by the Board
of Directors reads as under:
“Item BG-2005-2/14 – ENQUIRY REPORT AGAINST
THE REGISTRAR SHRI AJIT NARAYAN AND
PROPOSAL FOR HIS COMPULSORY RETIREMENT-
The Board has considered the proposal to retire
Shri Ajit Narayan, Registrar from the Institute service as he
has completed sufficient/required service/age for
compulsory retirement.
'-ppvd'
'Approved'
CHAIRMAN MEMBER SECRETARY."
12
Even though this Resolution was passed on 5.12.2005,
nothing was done for about 8-9 months and again in a Board Meeting
held on 29.10.2006, vide Annexure R-2/9, the Resolution dated
5.12.2005 was approved and thereafter the impugned action taken. If the
proceedings of the meeting of the Board of Directors held on 5.12.2005
and 29.10.2006 are scanned, it would be seen that the decision to
compulsorily retire the petitioner is taken on the basis of the enquiry
report and there is no scrutiny of the service record of the petitioner to
find out as to whether he is a dead wood and, therefore, liable to be
compulsorily retired under FR 56 (j).
17- At this point of time, it would be appropriate to consider the
law governing compulsory retirement. Apart from the four judgments
relied upon by Shri R.N. Singh, the principles governing compulsory
retirement have been laid down in the case of Baldev Raj, Ex-
Constable Vs. State of Punjab, AIR 1984 SC 984; State of UP and
others Vs. Vijay Kumar Jain, 2002(3) SCC 641; and, by a Division
Bench of this Court in the case of State of MP and another Vs. Noor
Jama Khan and another, 2002(3) MPLJ 147. All these judgments
have been considered by this Court recently in the case of Yogiraj
Sharma (DR) Vs. State of MP, ILR (2009) MP 959 and after taking
note of all the judgments referred to hereinabove so also the judgment of
the Supreme Court, in the case of Umed Bhai M. Patel (supra) relied
upon by Shri R.N. Singh, the matter has been dealt with by a Bench of
this Court in the case of Yogiraj Sharma (supra) in paragraphs 9
onwards:
“9- Having heard learned counsel for the parties at
length and on consideration of the facts that have come
on record, this Court deems it appropriate to
evaluate at the very outset the principles laid down
by the Supreme Court in the matter of compulsorily
retiring an employee on the grounds of public interest.
It is the application of this principle in the facts and
circumstances of the present case, which is required to be
done for adjudication of the present petition.
13
10- Normally an employee is retired compulsorily
in public interest earlier to his normal age of superannuation
after he has put in a specified period of service as
contemplated under the Rules. In the present case, Rule
42(1)(b) empowers the State Government to proceed in the
matter in public interest if the employee concerned has
completed 20 years of qualifying service or has attained the
age of 50 years, whichever is earlier. In such a case action
can be taken by the appointing authority after approval by
the State Government. On a close scrutiny of the various
judgments available on the subject in question, it would be
seen that the Courts have taken a general view that for
compulsorily retiring an employee grant of opportunity of
hearing is not necessary. Challenge to an order of
compulsory retirement on the ground of violation of the
principles of natural justice is not normally available. The
aforesaid view is based on the principle that compulsory
retirement in public interest does not amount to dismissal, it
is neither a punishment nor any stigma is attached to such
an action and, therefore, the effected employee need not be
heard. The aforesaid principle would be clear on a complete
reading of the law laid down by the Supreme Court, in the
case of Baikuntha Nath Das (supra).
11- Justification or otherwise of an order of
compulsory retirement is done on the basis of requirement
of public interest. In the case of Baldev Raj, Ex-constable
Vs. State of Punjab, AIR 1984 SC 984, when it was
submitted before the Supreme Court that a police officer
has been proceeded against and action is taken against him
in public interest. It has been observed by the Supreme
Court that public interest is an “unruly horse” and once it is
alleged that the impugned action is a device to circumvent
some decision of the Court or some statutory provision,
then it is obligatory for the State to explain as to how the
public interest is involved and what is the impending danger
in keeping the person in service. It is clear from a reading of
the judgment of the Supreme Court in various cases that the
principle idea underlying compulsory retirement or pre-
mature retirement is to weed out inefficient employees and
deadwood from the department. Action taken in this regard,
if not properly structured, is open to abuse. In a series of
cases over a period of time Supreme Court and various
other Courts have interfered with administrative discretions
exercised in the area of compulsory retirement on the
ground of abuse of power, taking note of irrelevant
consideration or non-application of mind. In the case of
Baldev Raj (supra), after taking note of the provisions of
Rule 56(j) of the fundamental rules, which is para materia
14
with Rule 42 of the Rules of 1966, the Supreme Court and
particularly Justice V. Krishna Iyer, for the Bench, has
observed that while taking action for compulsory
retirement, the appropriate authority must form the requisite
opinion, not subjective suggestions, but objective and
bonafide based on relevant material and the opinion should
indicate that retirement of the employee is in public interest
and not on personal, political or other interest. It is held by
the learned Judge that the right to retire under this provision
is not absolute, naked and arbitrary exercise of power is
said to be bad in law and in the guise of public interest
unlimited discretion to prematurely retire an employee
cannot be granted. It is held that the action should not be
unreasonable, arbitrary and amounting to disguised
dismissal. It is held in the aforesaid case that whenever an
order of retirement is challenged, the State must disclose the
material so that the Court can analyse the material and from
the material produced come to a conclusion as to whether a
reasonable man, reasonably instructed in law, would take
action in public interest justifying forced retirement of an
employee.
12- At this stage it would be relevant to consider
the case of Umed Bhai M. Patel (supra), relied upon by
Smt. Shobha Menon, learned Senior Advocate. In the
aforesaid case, reliance has been placed on various earlier
judgments on the subject, including the case of Baikuntha
Nath Das (supra), and the facts of the said case indicates
that the employee concerned was an Executive Engineer
working in the Narmada Development Department of the
State of Gujarat. Pending departmental enquiry into
allegations of misuse of power in the matter of purchasing
tarpaulin, he was suspended on 22.5.86. Departmental
proceedings were initiated against him, a charge sheet was
issued, but before enquiry into the charge sheet could be
completed he was compulsorily retired from service. The
facts in the case of Umed Bhai M. Patel (supra) is similar
to the present case. After evaluating the judgments and the
principles laid down in the case of Baikuntha Nath Das
(supra), pertaining to the law governing action to be taken
for compulsory retirement, it was held by the Supreme
Court that the order of compulsory retirement was based on
extraneous reasons and the action was taken which was
mainly based on the allegations, which formed part of the
charge sheet on which the enquiry was pending and without
waiting for conclusion of the enquiry, decision taken on the
basis of allegations, which were not proved and in the
absence of the entire service record being not adverse,
compulsory retirement was quashed. If the case of the
15
petitioner is evaluated in the backdrop of the principles laid
down and the facts in the case of Umed Bhai M. Patel
(supra), it would be seen that the present case is somewhat
similar to or rather identical to the one which has been
decided by the Supreme Court.
13- In the case of Umed Bhai M. Patel (supra),
reference has been made to the principle laid down in the
case of State of Orissa Vs. Ram Chandra Das, 1996(5)
SCC 331, and emphasis is placed on the fact that while
compulsorily retiring an employee from service, the
department should consider the entire record of service of
the government servant, including the last reports.
14- Same principles are laid down by the Supreme
Court in the case of State of UP and others Vs. Vijay
Kumar Jain, 2002(3) SCC 641. In the case of Vijay
Kumar Jain (supra), the Supreme Court has so considered
the matter in paragraphs 10,11,13 and 14:
“10. Before we advert to the question which we are
required to decide, it is necessary to notice the nature
of an order of compulsorily retiring a government
servant under FR 56 (c). In Shyam Lal v. State of
U.P., (1955) 1 SCR 26, it was held that an order of
compulsory retirement is neither a punishment nor
any stigma attached to it and it was held therein as
thus:
“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
of note 1 to Article 465-A make it
abundantly clear that an imputation or
charge is not in terms made a
condition for the exercise of the
power. In other words, a compulsory
16retirement has no stigma or
implication of misbehaviour or
incapacity.”
11. In Union of India v. Col. J.N. Sinha, (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.
13. In Baikuntha Nath Das and Another v.
Chief District Medical Officer Baripada and
Another, 1992 (2) SCC 299, this Court laid down
certain principles, which are as under:
“34. (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
17
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
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.”
14. In State of Punjab v. Gurdas Singh, 1998 (4)
SCC 92, it was held thus:
“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
18any uncommunicated adverse entries
as well.”
And, finally the principles are laid down in paragraph
15, in the following manner:
“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
sub-rule (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 woods 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 obstruct
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
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 its opinion whether an employee is to
be compulsorily retired or not.”
(Emphasis supplied)
15- It is clear from the aforesaid principle that the
entire service record has to be evaluated and if the integrity
of the government employee is doubtful and there are
19material to show existence of the aforesaid fact, action can
be taken.
16- Similar principle is laid down in the case of
M.L. Binjolkar Vs. State of MP, 2005(6) SCC 224.
17- Finally, a Division Bench of this Court in the
case of State of MP and another Vs. Noor Jama Khan
and another, 2002(3) MPLJ 147, has taken note of various
judgments, including the judgment in the case of Umed
Bhai M. Patel (supra), and the principles have been
crystallized in the following manner:
“The order of compulsory retirement is the
prerogative of the Government and it can be passed
on the subjective satisfaction of the State
Government. Subjective satisfaction cannot be done
in a manner which a prudent man can never conceive.
Satisfaction like discretion has to be based on proper
consideration and weighment of material. In the
name of subjective satisfaction no one can be allowed
to behave in a whimsical or capricious manner. Fancy
has no place in law. Subjective satisfaction cannot be
scanned as if done one is sitting in an appeal, but it
must meet the requirement of appreciation expected
of a prudent man and the appreciation should be
relevant and germane to the purpose apropos to its
context. It cannot be conceived for a moment that the
subjective satisfaction would take away the order
from the purview of judicial scrutiny solely on the
basis that the committee has been subjectively
satisfied. It must indicate the satisfaction of a prudent
and fair man and there should be no perversity of
approach.”
(Emphasis supplied)”
18- The judgment of the Single Bench, in the case of Yogiraj
Sharma (supra) was further considered by the Division Bench on a writ
appeal being filed by the State Government in the case of State of MP
Vs. Yogiraj Sharma, 2009(4) MPHT 250, and the Division Bench has
approved the decision.
19- It is, therefore, clear from the principle governing the law
relating to compulsory retirement that an employee is retired
compulsorily in public interest earlier to his normal age of
20
superannuation, after he has completed the requisite period of service
and when it is found that he is a dead wood in the department.
Compulsory retirement is neither a punishment nor does it cast a stigma
on the employee concerned. However, before taking a decision to
compulsory retire an employee his entire service, character roll etc are to
be placed before the appropriate Screening Committee and on scrutiny
of the same the Committee has to decide as to whether the employee is
useful to the department or is a deadwood.
20- As held by the Division Bench of this Court, in the case of
Noor Jama Khan (supra), compulsory retirement is the prerogative of
the government and it can be passed on the subjective decision of the
government. However, subjective decision has to be done in a manner,
which a prudent man would normally do. The entire service record has
to be assessed and the discretion is to be passed on proper consideration
of the material and a reasonable prudent man’s approach should be
adopted. If the action taken in the present case, in the backdrop of the
principles laid down as indicated hereinabove, are taken note of, it would
be seen that there is no screening of the entire service record of the
petitioner. The decision to compulsorily retire the petitioner is taken by
the Board of Directors on 5.12.2005 and as indicated hereinabove the
decision of the Board of Directors to compulsorily retire the petitioner is
taken on the basis of the enquiry report – Annexure P/24 and Annexure
R-2/5. There is nothing in the proceedings of the Board of Directors –
Annexure R/8 to indicate that the service record of the petitioner was
scrutinized and he was found to be a dead wood in the department. On
the contrary, the proceedings of the meeting indicates that without
scrutiny of the service record of the petitioner a decision is taken to
compulsorily retire him, based on the enquiry report obtained behind the
back of the petitioner. This enquiry report, which has been obtained
without hearing the petitioner and without granting him any opportunity
to give his say, cannot be used against the petitioner, as it is obtained in
total violation to and in disregard to the principles of natural justice. The
proceedings of the Board of Directors held on 5.12.2005 is approved by
21
the Board of Directors again on 29.2.2006 and the action taken. Even
though respondents by filing the performance appraisal reports of the
petitioner – Annexures R-2/10, for the period July 2003 to July 2007,
have tried to emphasize that his service record is not ‘good’, this Court is
not to scrutinize the service record and take a decision. Scrutiny of the
service record to assess the suitability or otherwise of the petitioner and
to determine as to whether he is deadwood or not was to be done either
by a proper scrutiny committee or by the Board of Directors. Nothing of
this sort is done and based on an enquiry report, obtained behind the
back of the petitioner, the decision is taken to compulsorily retire the
petitioner. This procedure followed by the respondents is wholly illegal,
it is unknown to law and not a procedure approved by law for
compulsorily retiring a person under FR 56(j) or any other analogous
statutory provision.
21- If the facts and circumstances of the case in hand, as has
been indicated above, is evaluated in the backdrop of the principles laid
down for compulsorily retiring an employee by treating him to be a
deadwood in the department is concerned, it would be clear that in the
present case, petitioner is found to be guilty of certain allegations
regarding his appointment and the guilt against the petitioner is recorded
in an exparte enquiry conducted behind his back. Based on this enquiry
report, petitioner is infact punished by compulsory retirement and the
respondents want this Court to uphold the said action on the ground that
the compulsory retirement is in accordance to law i.e…. FR 56(j) and
petitioner is a deadwood in the department. I am afraid the said stand of
the respondents cannot be accepted or upheld by this court. It is a case
where action taken by the respondents does not fulfil the requirement of
law, is in contravention and in total disregard to the principles governing
compulsory retirement of an employee and, therefore, has to be quashed.
22- Accordingly, in view of the above, it has to be held that the
action of the respondents in compulsorily retiring the petitioner is illegal,
contrary to the principles of law and has to be quashed. In view of the
above, the decision of the Board of Directors taken on 5.12.2005 and on
22
29.2.2006, and the impugned order-dated 28.9.2007 – Annexure P/31 are
quashed. Respondents are directed to reinstate the petitioner on the post
held by him at the time of retirement and grant him all consequential
benefit of salary and other monetary benefits in accordance to his
entitlement after deducting the post retiral benefits already granted to
him, after his compulsory retirement. Benefits accruing to the petitioner,
mandatory in nature, be extended within a period of two months from
the date of receipt of certified copy of this order.
23- Petition stands allowed and disposed of without any order
so as to costs.
( RAJENDRA MENON )
JUDGE
Aks/-