Ch. Angou Singh and Others vs State of Manipur and Others

H.K. Sema, J.—Petitioners are 14 in number. They were appointed to various posts under the Government of Manipur, and at the relevant time they were on deputation under Manipur State Road Transport Corporation, in short (MSRTC). They were ordered to go on compulsory retirement with immediate effect under F.R. 56(j). The order read thus:

GOVERNMENT OF MANIPUR SECRETARIAT : TRANSPORT DEPARTMENT ORDERS BY THE GOVERNOR : MANIPUR Dtd/Imphul, the 2nd February, 1993

No. 4/3/90-T (MSRTC) : WHEREAS the service of the following employees of the State Government, now on deputation to the Manipur State Road Transport Corporation, on attaining the age of 55 years, have been reviewed by a Review Committee constituted in accordance with the order No. 5/1/79(AIS)-DP dated 28.10.87 of the Department of Personnel and Administrative Reforms (Personnel Division), Govt. of Manipur.

AND WHEREAS the Review Committee, after due assessment and consideration of the service of the said employees, have recommended for pre-mature retirement of the said employees as their service cannot be utilized properly, effectively and fruitfully as well as no contribution in work can be expected further from them as they are old aged, physically not fit and in-efficient for the service and thereby no longer required for retaining them in service or reversion to a lower post;

AND WHEREAS the "State Government have accepted the recommendations of the Review Committee;

AND WHEREAS, also in pursuance of the order dated 9/12/1992 in C.R.No. 1241 of 1992 of the Guhati High Court, Imphal Bench, the order No. 1/691/92. MSRTC (E) dated 18.8.92 issued by the Managing Director, M.S.R.T.C. for prematters (sic, premature retirement in respect of 26 (twenty six) employees is hereby cancelled and superseded;

AND WHEREAS the State Government is of the opinion that it is in the public interest to do so;

NOW, THEREFORE, in exercise of the powers conferred by Clause (j) of Rule 56 of the Fundamental Rules, the Governor of Manipur hereby retires the following employees of the State Govt. with immediate effect. The Governor also directs that in lieu of notice, each of the employees given below shall be paid a sum equivalent to the amount of his pay plus allowances for a period of three months calculated in the same rate at which he was drawing them immediately before his retirement.

Sl. No. Name & designation

Shri L. Bidhu Singh, Conductor.

Shri L. Baburam Singh, Conductor.

Md. Sahabuddin, Conductor.

Shri L. Iboton Singh, Mechanic-I

Shri R.K. Chaoren Singh, Mechanic-I

Shri Th. Shamu Singh, Mechanic-I

Shri Ch. Ibobi Singh, Mechanic-I Sr. Shri N. Kornol singh, Mechanic-I

Shri R.K. Kanhaisana Singh, Mechanic-II

Shri Y. Tombi Singh, Mechanic-III (Sr).

Shri Ng. Lala Singh, Mechanic-III (Sr).

Shri Ch. Angou Singh, Mechanic-III (Sr)

Shri P. Gouramani Singh, Mechanic-III (Sr).

Shri L. Chaoba Singh, Driver (Sr).

Siri N. Bidlui Singh, Driver (Jr).

Shri N. Modhu Singh, Carpenter-III.

By orders & in the name of Governor; Sd/- A. Saratchandra Singh, Secretary (Transport) to the Government of Manipur

Rule 56(j) of FR & SR empowers the appropriate authority absolute right to retire any Government servant by giving him notice of three months or three months pay and allowances in lieu of such notice. The relevant portion of Rule 56(j) reads thus:

Notwithstanding anything contained in this rule, the appropriate authority shall, if 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 of not less than three months in writing or three month''s pay and allowances in lieu of such notice.

By now it is well settled principle of law that the order of compulsorily retiring a Government servant passed under FR 56 (j) does not amount to punishment and hence principles of natural justice not required to observe in passing such order. Judicial review of the order is open only on grounds of mala fide arbitrariness and perversity.

In R.L. Butah Vs. Union of India (UOI) and Others, it was pointed out by the Apex Court as under:

That Fundamental Rule 56(j) in express terms confers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 55 years if such authority is of the opinion that it is in public interest so to do. If that authority bona file forms that opinion, the correctness of that opinion cannot be challenged before courts.

In Union of India (UOI) Vs. Col. J.N. Sinha and Another, it was pointed out by the Apex Court is para 9 of its judgment as under:

That compulsory retirement involves no civil consequences and that a Government servant does not lose any of the rights acquired by him before retirement. Fundamental Rule 56(j) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should no be there in public interest.

In The State of U.P. Vs. Sri Shyam Lal Sharma, the Apex Court had enunciated the following principle:

Firstly, in ascertaining whether the order of compulsory retirement is one of punishment it has to be ascertained whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order for compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Thirdly, as order for compulsory retirement on the completion of 25 years of service or an order of compulsory retirement made in the public interest to dispense with further service will not amount to an order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be field to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects, namely, that the Officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired.

In Shyam Lal Sharma (Supra), the Respondent was made to retire on the basis of the proposal dated 14.2.62 which was considered by the Respondent to be stigma runs in para 2 of the letter as under:

He is considered to be a bad lot incorrigible and no longer useful.

This proposal was accepted by a letter dated 16.3.62. In the letter accepting the proposal there was no stigma. The Apex Court had held that the concluding para of the proposal did not contain any stigma or imputation against the Respondent. The Apex Court after enunciating the principle as aforesaid comes to the conclusion in para 20 of its judgment as under:

Unless it is established from the order of compulsory retirement itself that a charge or imputation against the officer is made the condition of the exercise of that power or that by the order the Officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal on removal in the nature of penalty or punishment.

In. I.N. Saksena Vs. State of Madhya Pradesh, it was pointed out that:

Where an order requiring a Government servant to retire compulsorily contains express words from which a stigma can be inferred, that order may amount to removal within the meaning of Article 311. But where there are no express words in the order itself, which would throw any stigma on the Government servant, the Court cannot look into the background resulting in the passing of such order in order to discover whether some kind of stigma could be inferred.

It was further pointed out that:

It is the order of compulsory retirement which alone is for examination. If the order itself does not contain any imputation or charge against the officer the fact that consideration of misconduct or misbehaviour weighed with the Government in coming to its conclusion to retire him compulsorily does not amount to any imputation or charge against the Officer.

(Emphasis supplied)

In the light of law enunciated by the Apex Court as referred to above, I shall now examine the case at hand.

Mr. T. Nandakumar referred to the 2nd para of the impugned order and submits that the order compulsorily retiring Petitioner was by way of punishment and Article 311 is attracted, 2nd para of the order reads as under:

AND WHERE AS the Review Committee, after due assessment and consideration of the service of the said employees, have recommended for pre-mature retirement of the said employees as their service cannot be utilized properly, effectively and fruitfully as Well as no contribution in work can be expected further from them as they are old aged, physically not fit and in-efficient for the service and thereby no longer required for retaining them in service or reversion to a lower post.

Mr. T. Nandakumar has strenuously urged that the language employed in the second para of the order, "their service cannot be utilized properly, effectively and fruitfully and has no contribution in work can be expected further from them as they are old aged, physically not fit and inefficient for the service etc.". According to the learned Counsel this has constituted a stigma in (sic) Order compulsorily retiring the Petitioners, and it is by way of removal and Article 311 is attracted.

In this connection, learned Counsel has referred to a decision of the Apex Court rendered in The State of Uttar Pradesh Vs. Madan Mohan Nagar, In the said case, the Apex Court had held that:

The order of retirement stating that the employee is retired as he has outlived his utility cases a stigma and amounts to punishment and is "removal" within the meaning of Article 311.

In Madan Mohan (Supra), the order of compulsory retirement was in the following terms:

I am directed to say that the Governor has been pleased to order in the public interest under Article 465-A and Note (1) thereof of the Civil Service Regulations, the compulsory retirement with effect from September 1, 1960 of Sri Madan Mohan Nagar, Director State Museum, Lucknow, who completed 52 years of age on July 1, 1960, and 28 years and 3 months of qualifying service on 31st May 1960, as he has outlived his utility.

(Emphasis supplied)

From the order of compulsory retirement of Government servant as referred above, there is an express stigma in the order itself. It is in this circumstances, the Apex Court had held that compulsory retiring a Government servant casts a stigma and amount to punishment.

In the case in hand, although the appropriate authority in the order impugned has referred to the report of tie Review Committee in para 2 of the impugned order as quoted above, the concluding part forming an opinion compulsorily retiring the Petitioners runs as under;

Now, therefore, in exercise of the powers conferred by Clause (j) of Rule 56 of the Fundamental Rules, the Governor of Manipur hereby retires the following employees of the Suite Govt. with immediate effect. The Governor also directs that in lieu of notice, each of the employees given below shall be paid a sum equivalent to the amount of his pay plus allowances for a period of three months calculated at the same rate at which he was drawing them immediately before His retirement.

From the conclusion of the order forming an opinion to retire the Petitioners compulsorily, no stigma whatsoever has been cast. The appropriate authority has simply accepted the recommendation of Review Committee and forming an opinion to retire the Petitioners compulsorily. The order of compulsory retirement also did not deprive the Petitioners of the benefits already earned by them. Therefore, the argument that the Petitioner have been mad*; to retire compulsorily by way of punishment and is removal within the meaning of Article 311 must fail.

It is always open (sic) the appropriate authority to have formed an opinion on the basis of materials available before the authority to retire any Government servant by giving notice as contemplated in Rule 56(J). In the case in hand, the appropriate authority formed an opinion on the basis of materials supplied by the Review Committee, which was quoted in the impugned order. This cannot be taken to be the expression of stigma casts against the Petitioners in the impugned order.

For the aforestated reasons there is no merit in this writ petition and the same is accordingly dismissed. Parties are asked to bear their own costs.