PETITIONER: STATE OF ORISSA & ORS. Vs. RESPONDENT: RAM CHANDRA DAS DATE OF JUDGMENT: 08/05/1996 BENCH: K. RAMASWAMY, FAIZAN UDDIN, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
This appeals by special arises from the judgment and
order passed by the Orissa Administrative Tribunal in O.A.
No.340/87 on July 18, 1992. The respondent while working as
Assistant Conservator of Forests was compulsorily retired
from service by proceedings dated August 1, 1983 which came
to be challenged by the respondent in the above proceedings.
The Tribunal allowed the application on three grounds; (1)
the respondent was allowed to cross the efficiency bar; (ii)
since he was promoted, after the adverse remarks were made,
the records were wiped out; and (iii) the entire, record
overall consideration thereof was not done and, therefore,
the exercise of the power of compulsory retirement under
Section 71(a) was not valid in law. The question is: whether
the view taken by the Tribunal is correct in law” It is
needless to reiterate that the settled leal position is that
the Government is empowered and would be entitled to
compulsorily retire a Government servant in public interest
with a view to improve efficiency of the administration or
to weed out the people of doubtful integrity or corrupt but
sufficiency evidence was not available to take disciplinary
action in accordance with the rules so as to inculcate a
sense of discipline in the service. But the Government,
before taking such decision to retire a Government employee
compulsorily from service, have to consider the entire
record of the Government servant including the latest
reports.
Rule 71 (a) of the Orissa Service Code empowers the
Government to do the needful and reads as under:
“Rule-71(a) – Except as otherwise
provided in the other clauses of
this rule the date of compulsory
retirement of a Government Servant,
except a ministerial servant who
was in Government service on the
31st March, 1939 and Class IV
Government servant, is the date on
which he or she attains the age of
50 years subject o the condition
that a review shall be conducted in
respect of the Government servant
in the 55th year of age in order to
remain in service up to the date of
the completion of the age of 50
years or retired on completing the
of 55 years in public interest.”
A reading thereof would indicate that the Government
has been empowered, in the public interest, to compulsorily
retire a Government servant on his attaining the age of 50
years or on completion of 55 years by review of the service
record.
It is seen that though the respondent has contended
that neither the entire record of service was placed before
the Review Committee, nor the Committee had gone into, nor
had the advantage of it; and it considered only the adverse
remarks for the years 1980-81 and 1981-82 in the rejoinder
affidavit filed in this Court, it was specifically stated
that the entire record of service from 1964-65 to 1981-82
and also the pending proceedings in the departmental enquiry
against the respondent were placed before the Review
Committee and the same were duly considered by it. It is
also seen that when the case was argued before the Tribunal,
the copy of proceedings and report of the Review Committee
and record was produced. The Tribunal had also noted in para
5 of the order thus:
“Learned Government Advocate
produced before us a copy of the
proceedings of the Review Committee
meeting held on 8.6.83. On perusal
of the same, we find that the
Committee perused the C.C.Rs.,
entries of the applicant and took
consideration the allegations
against him in the departmental
proceedings on charges of misses of
powers, suppression of facts, etc.
which were pending enquiry before
the Administrative Tribunal on the
basis of the aforesaid materials,
the committee felt that continuance
of the applicant in Government
service would not be in public
interest and, therefore, they
recommended that he should be
prematurely retired.”
It is contended for the respondent that adverse entries
for the two years referred to earlier and pending
departmental proceedings would not be sufficient to
compulsorily retire the Government servant on the premise
that after promotion they would become irrelevant and minor
penalty was imposed. It is true that the Government servant
was allowed to cross the efficiency bar to enable him to
avail the benefits to draw higher scale of pay after
crossing the efficiency bar. The adverse remarks made are
after promotion. Even otherwise, the remarks form part of
service record and character role. The record of enquiry on
conduct also would be material. Though minor penalty may be
imposed on given facts and circumstances to act of
misconduct, nevertheless remains part of the record for
overall consideration to retire a Government servant
compulsorily. The object always is public interest. The
material question is: whether the entire record of service
was considered or not? It is not for the court/tribunal to
see whether the decision of the Government to compulsorily
retire the Government servant is justified or not. It 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 entires were made, cannot be a ground to
note that compulsorily retirement of the Government servant
could not be ordered. The evidence does not become
inadmissible or irrelevant as opined by the Tribunal. what
would be relevant is whether upon that state of record as a
reasonable prudent man would the Government or competent
officer reach that decision. We find that self-same material
after promotion may not be taken into consideration only 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.
Under these circumstances, we are of the considered
view that the Tribunal was wholly unjustified in interfering
with the decision to retire the respondent compulsorily from
service on the aforesaid grounds.
The appeal is accordingly allowed but, in the
circumstances, without costs.