Central Industrial Security Force vs HC (GD) Om Prakash

Hemant Gupta, J

The present appeal arises out of an order dated 14.10.2011 passed by the Division Bench of the High Court of Delhi whereby the order of

premature retirement passed against the respondent was set aside.

The respondent, Head Constable Om Prakash [Hereinafter referred to as the ‘Writ Petitioner’] was prematurely retired on 16.08.2011 in

exercise of the powers conferred under Rule 56(j) of the Fundamental Rules read with Rule 48(1)(b) of CCS (Pension) Rules, 1972 [For short ‘the

Rules’] after completion of 30 years of service. The order is to the effect that the Superannuation Review Committee under Rule 48(1)(b) of the

Rules found the writ petitioner not fit to continue in service beyond 30 years of qualifying service with immediate effect.

In the writ petition challenging such order, the High Court set aside the order of premature retirement on the ground that the writ petitioner was

promoted as Head Constable on 14.06.2000 and thus penalties imposed prior to the year 2000 have to be ignored while determining suitability of the

writ petitioner to be retained in service. The two penalties of sleeping on duty and overstaying leave by two days were inflicted in the year 2005 and

2008 respectively which were minor penalties. The Annual Confidential Reports [ACR] grading of the writ petitioner in the preceding five years have

to be considered with greater focus while noticing the fact that even earlier ACR’s had to be taken into consideration. The ACR’s from 1990

till the year 2009 were either good or very good. The ACR for the year 2010 was graded average but the same was not conveyed to the writ

petitioner. Therefore, such ACR could not be taken into consideration while arriving at an opinion that the writ petitioner is a dead wood. The High

Court referred to a three Judge Bench judgment of this Court reported as Baikuntha Nath Das and Another v. Chief District Medical Officer,

Baripada and Another (1992) 2 SCC 299 wherein it has been held that the order of compulsory retirement is not a punishment. It implies no stigma nor

any suggestion of misbehaviour. The order of compulsory retirement is in public interest and is passed on the subjective satisfaction of the Government

and is not liable to be quashed by the Court merely for the reason that uncommunicated adverse remarks were taken into consideration.

This Court approved the earlier judgment of this Court reported as Union of India v. M. E. Reddy and Another (1980) 2 SCC 15 wherein it was

held as under:

“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.â€​

We find that the High Court has completely misdirected itself while setting aside the order of premature retirement of the writ petitioner. The writ

petitioner has been awarded number of punishments prior to his promotion including receiving illegal gratification from a transporter while on duty in

the year 1993. There are also allegations of absence from duty and overstaying of leave. After promotion, a punishment of four days fine was

imposed on the charge of sleeping on duty and two days fine was imposed for overstayed from joining time. Apart from the said punishments, the writ

petitioner has a mixed bag of ACRs such as average, below average, satisfactory good and very good. In the last 5 years, he has been graded

average for the period 01.01.2010 to 31.12.2010.

After the judgment in Baikuntha Nath Das, a three Judge Bench in a judgment reported as Posts and Telegraphs Board and Others v. C.S.N.

Murthy (1992) 2 SCC 317 held that the courts would not interfere with the exercise of the power of compulsory retirement if arrived at bonafidely and

on the basis of material available on record. The Court held as under:

“5. …. 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 the department as

being mala fide, perverse, arbitrary or unreasonable.â€​

A three Judge Bench of this Court reported as Union of India and Others v. Dulal Dutt (1993) 2 SCC 179 examined the order of compulsory

retirement of a Controller of Stores in Indian Railway. It was held that an order of compulsory retirement is not an order of punishment. It is a

prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government and that it is

not required to be a speaking order. This Court held 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 v. Union of India [(1970) 2 SCC 876]

and Union of India v. 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.â€​

In another judgment reported as Secretary to the Government and Another v. 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.

In Union of India v. V.P. Seth and Another (1994) SCC (L&S) 1052, relying upon Baikuntha Nath Das and other judgments, it was held as under:

“3. These principles 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.â€​

A three Judge Bench of this Court in a judgment reported as State of Punjab v. Gurdas Singh (1998) 4 SCC 92 considered the argument that the

order of compulsory retirement was based on material which was non-existent inasmuch as there were no adverse remarks against him and if there

were any such remarks, it should have been communicated to him.

This Court held as under:

“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.â€​

In State of U.P. and Others v. Raj Kishore Goel (2001) 10 SCC 183, the order of the High Court setting aside the order of compulsory retirement

was set aside when the order of compulsory retirement was on account of uncommunicated ACR.

In the judgment reported as Rajasthan State Road Transport Corporation and Others v. Babu Lal Jangir (2013) 10 SCC 551, the High Court had

taken into consideration adverse entries for the period 12 years prior to premature retirement. This Court held that Brij Mohan Singh Chopra v. State

of Punjab (1987) 2 SCC 188 was overruled only on the second proposition that an order of compulsory retirement is required to be passed after

complying with the principles of natural justice. This Court also considered the “washed-off theory†i.e., the remarks would be wiped off on

account of such record being of remote past. Reliance was placed upon a three Judge Bench judgment of this Court reported as Pyare Mohan Lal v.

State of Jharkhand and Others (2010) 10 SCC 693 and it was observed that:

“22. It clearly follows from the above that the clarification given by a two-Judge Bench judgment in Badrinath [(2000) 8 SCC 395 : 2001 SCC

(L&S) 13 : (2000) 6 Scale 618] is not correct and the observations of this Court in Gurdas Singh [(1998) 4 SCC 92 : 1998 SCC (L&S) 1004 : AIR

1998 SC 1661] 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.

The principle of law which is clarified and stands crystallised after the judgment in Pyare Mohan Lal v. State of Jharkhand [(2010) 10 SCC 693 :

(2011) 1 SCC (L&S) 550] 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 recordâ€, 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 may be sufficient to justify the order of premature retirement of the government servant.â€​

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. This

Court in Ram Murti Yadav v. State of Uttar Pradesh and Another (2020) 1 SCC 801 held as under:

“6. ….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.â€​

Thus, we find that the High Court has not only misread the judgment of this Court in Baikuntha Nath Das 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.

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.

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.