Dwipen Konwar and Others vs State of Assam and Another

M. Ramakrishna, C.J.—Writ Appeal No. 390/95 arises out of the common judgment and order made by the learned Single Judge of this Court while disposing of Civil Rule No. 1577/94, presented by Taranath Gogoi, son of Late Surjya Kanta Gogoi, and No. 1578/94, presented by Shri Dwipen Konwar, son of Late Madhav Konwar, by order made on 8th May, 1995. However, the Writ Appeal No. 390/95 had been presented by only Taranath Gogoi, Shri Dwipen Konwar, however, has presented a separate Writ Appeal No. 353/95 challenging that common order made by the learned Single Judge of this Court disposing of the above two Civil Rules, dated 8th May 1995. Whereas Writ Appeal No. 419/95 is presented by Shri Malin Chandra Gohain, son of Late Kanak Chandra Gohain, against the judgment and order made by the learned Single Judge of this Court in Civil Rule No. 3757/94, dated 24th May, 1995.

Since all these appeals arise out of identical questions of law in the said Civil Rules which were heard and disposed of by the learned Single Judge by two different sets of orders referred to above, we propose to dispose of these three Writ Appeals by the following common judgment.

We will refer to the salient facts of the two appeals, namely Writ Appeals No. 353/95 and 390/95, arising out of Civil Rules Nos. 1577/94 and 1578/94, which were heard and disposed of by the common judgment and order made by the learned Single Judge, dated 8th May, 1995. They are as follows:

In Civil Rules Nos. 1577/94 and 1578/94, which were presented with a common set of facts and grounds clubbing together seeking for a common relief challenging the two identical orders impugned in the writ petitions. The case of the Petitioners was that both the Petitioners had been serving the Government of Assam as Assam Government Civil Servants. At the relevant point of time, that is, between 2.8.91 to 25.11.92, Petitioner in C.R. No. 1577/94 (Taranath Gogoi) had been serving as Deputy Secretary to the Government of Assam, Animal Husbandry & Veterinary Department, while the Petitioner in Civil Rule No. 1578/94 (Dwipen Konwar) had been serving in the same capacity from 6.1.92 to September, 1992. The allegations are that during this period these two Petitioners issued Letters of Credit (in short, LOCs). The amount of money involved in these several LOCs run into several crores. The general allegations made in the writ petitions are that there were large scale manipulations and forgery, forging the LOCs, and this factum of large scale forgery resulting in misappropriation of a large amount of money in the Animal Husbandry & Veterinary Department of the State was highlighted in the press. It was alleged that there was involvement of these two Petitioners while they were administering the Department by issuing LOCs. These'' anomalies came to be known as "LOC Scandal". It is alleged mat as there was so much of pressure from the opposition parties for holding enquiries into the alleged LOC scam, the Govt. of Assam ultimately appointed an one man committee, known as the "K.S. Rao Committee", to go into the question of allegations and to submit a report. However, before the submission of the report by the Rao Committee, orders were passed by the Government suspending the Petitioners by orders made on 5.8.93. The allegation was that as these Petitioners were involved in the scam, they were placed under suspension pending submission of the report by the Rao Committee. These orders of suspension were challenged by the Petitioners before this Court in Civil Rules Nos. 2198/93 and 2199/93. However, despite the orders made by this Court on 26.11.93 quashing the orders of suspension, these Petitioners were not taken back to duty. On the other hand, charge sheets were submitted against them by an order made on 13.1.94 in respect of the issuance of LOCs by these Officers.

It is alleged that, referring to the large number of LOCs signed and issued by these Officers, a large number of LOCs were said to have been forged and that based upon such forged LOCs, large amount of money had been withdrawn by certain other persons. It is alleged that these Petitioners cannot be held responsible for the forgery and withdrawal of money through the forged LOCs.

The Rao Committee, however, submitted its report in which there are specific findings recorded against these Petitioners. The specific finding of the Rao Committee is that these persons (the Petitioners) were also very much involved in the scam.

It is further alleged that based upon these findings of the Rao Committee, departmental proceedings had been initiated against them. However, before the completion of the departmental proceedings, the Governor of Assam invoking the provisions of F.R. 56(b) of the "Fundamental Rules and Subsidiary Rules" (hereinafter referred to as the F.R.) passed orders on 11th April, 1994, resulting in compulsory retirement of these Petitioners in terms of the said order. A certain sum of money was sought to be paid in lieu of three months'' notice, as contemplated by law, along with the said order made by the Governor. Aggrieved by these orders of compulsory retirement, these Petitioners approached this Court in the above Civil Rules challenging the correctness and legality of the impugned orders of compulsory retirement.

Referring to the other set of facts arising out of Civil Rule No. 3757/94 presented by Shri Malin Chandra Gohain against the impugned order of compulsory retirement made by the Governor of Assam invoking the provisions of F.R. 56(b) seeking to compulsorily retire the Petitioner, there are no justifiable features of difference. More or less, the same set of facts are there in this petition also, except the fact that the Petitioner was serving as Treasury Officer at Sibsagar from 13.7.89 to 22.2.93, when he was placed under suspension by the Government alleging that the Petitioner during the tenure of his service as Treasury Officer, Sibsagar accepted the passed several bills of the Animal Husbandry & Veterinary Department without valid sanction and LOCs. Thereafter, departmental proceedings were initiated against the Petitioner by order dated 18th August, 1993, by issuing a show cause notice, levelling three charges against the Petitioner. These were challenged by the Petitioner before this Court in Civil Rule No. 910/94, which was disposed of by order dated 4th March, 1994, directing the authorities to complete the disciplinary proceedings within four months. However, before the completion of the departmental proceedings, an identical order of compulsory retirement was made against the Petitioner by the Governor of Assam on 11th April, 1994, which was impugned by the Petitioner in the above Civil Rule seeking for the same set of relief as found in the earlier two writ petitions. However, the learned Single Judge disposed of the first set of writ petitions referred to above by an order made on 8th may, 1995, while the other writ petition came to be disposed of on 24th May, 1995, passing speaking orders in both these sets of cases.

The learned Single Judge referring to the grounds of the writ petitions and arguments advanced by both counsel representing the Petitioners and the Respondents held that in the light of the rulings of the Supreme Court in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, and Union of India (UOI) and Others Vs. Dulal Dutt, and again 5. S. Ramachandra Raju Vs. State of Orissa, held as follows:

On total evolution of the entire record of service the Government or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the Court may not interfere with the exercise of such bona fide exercise of power but the Court has power and duty to exercise the power of judicial review not as a Court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised or is arbitrary or is vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the Government officer compulsorily from service.

Thus these writ petitions were dismissed rejecting the prayers of the Petitioners. Hence these appeals.

We have heard learned Counsel on both sides. Shri N.M. Lahiri, learned Sr. Counsel appearing for the Appellants, urged as follows:

(1) Before exercising power under F.R. 56(b) seeking to retire compulsorily these Petitioners/Appellants, the competent authority should have satisfied itself that there are acceptable grounds existed against these Petitioners based upon acceptable evidence independently. In the instant case there were no specific grounds available to invoke the provision of F.R. 56(b).

The legal argument advanced by Shri Lahiri, learned Counsel for the Appellants is that when once the Government of Assam having initiated departmental proceedings seeking to record specific findings of guilt or the involvement of the Petitioners in the LOC scam, instead of proceeding in the departmental proceedings, the Governor should not have invoked the provision of F.R. 56(b).

(2) Another thrust of the argument of Mr. Lahiri, learned Sr. counsel for the Appellants is that based upon the unilateral findings of the Rao Committee and without substantiating the same, the Governor should not have arrived at the conclusion that a case is made out to retire the Petitioners compulsorily under F.R. 56(b).

(3) The screening committee constituted by the Government and which went into the question of scam, has not provided an opportunity to the Petitioners to adduce evidence to defend themselves, and therefore, based upon the conclusion of the screening committee, the governor should not have passed orders invoking F.R. 56(b).

(4) The last submission of Shri Lahiri, learned Sr. counsel for the Appellants is that the impugned orders made by the Governor clearly shows that there is a stigma, which is punitive in character. Such being the case, the requirement of Article 311 of the Constitution of India should have been complied with. Since in the instant case there is no compliance of the mandatory requirement of law as envisaged under Article 311(2) of the Constitution, the learned Single Judge failed to appreciate this aspect of the matter.

Hence, he argued that both the orders of the learned Single Judge and the impugned orders of compulsory retirement made by the Governor are liable to be quashed.

Mr. J.M. Choudhury, learned Counsel for the Appellant in W.A. No. 419/95, sailing with Mr. N.M. Lahiri, learned Sr. counsel appearing for the Appellants in W.A. Nos. 353/95 and 390/95, adopted the argument of the latter.

Contrary to this submission of the learned Counsel for the Appellants, Mr. D.P. Chaliha and Mr. S.S. Dey, learned Sr. Govt. Advocate appearing for the Respondents, however, maintained that the view taken by the learned Single Judge in placing reliance upon the rulings of the Supreme Court is justified and that the appellate Court need not interfere with the conclusion of the learned Single Judge.

By a careful consideration of the findings recorded by the learned Single Judge of this Court while disposing of the writ petitions, he has extracted the provision of F.R. 56(b) for the purpose of interpretation of statute and that in the speaking orders he held that the High Court while exercising the power of judicial review should not be construed as a Court of appeal and that it was not permissible to reappreciate the evidence on record, inasmuch as, while following the several rulings of the Supreme Court he has reached a conclusion that the power exercised by the Governor invoking F.R. 56(b) with a view to retire a Government servant compulsorily, if found to have been based upon maintaining efficiency in the Government service and in the public interest, this Court need not interfere with such orders.

Let us now see whether Shri Lahiri, learned Sr. Counsel, by his argument, was able to make out a case to take a different view from the view expressed by the learned Single Judge.

In view of the legal arguments advanced by the learned Sr. counsel for the Appellants, the following points arise for our consideration:

(1) Whether there is any stigma attached to the impugned order of compulsory retirement made by the Governor ?

(2) Whether the impugned order of compulsory retirement was made in the public interest ?

(3) Whether there is requisite opinion arrived at by the Governor for compulsory retirement, which is in public interest ?

(4) Whether the decision arrived at by the Governor invoking F.R. 56(b) was based on collateral grounds ?

(5) Whether the order of compulsory retirement impugned in the writ petitions could be construed as an impeachment ?

(6) Lastly, whether the impugned orders could be said to be suffering from either arbitrariness or mala fide ?

We will now take the first point for consideration in these appeals, namely, whether by virtue of the arguments advanced by Mr. Lahiri, is he able to make out a case that the impugned order of compulsory retirement is attached with a stigma.

Before we consider this aspect of the matter arising out of the first point, as argued by learned Counsel for the Appellants, let us now refer to the provision of F.R. 56(b) of the Fundamental Rules and Subsidiary Rules, adopted and made applicable to the members of the service of the Government of Assam u/s 241(2)(b) of the Government of India Act, 1935, and amended by that authority from time to time, which came to be adopted by the Government of Assam. In other words, undoubtedly, these Fundamental Rules are made applicable to the members of the service under the State of Assam by virtue of a notification having been issued, which came into force on the 1st of January, 1940.

F.R. 56 under Chapter IX dealing with compulsory retirement of Government servants lays down as follows:

(a) The date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years. He may be retained in service after this age with the sanction of the State Government on public grounds which must be recorded in writing, and proposal for the retention of a Government servant in service after this age should not be made except in very special circumstances.

The age of compulsory retirement of a Government servant has been raised to 58 years from 55 years vide Notification No. AAP/143/77/37 dated 18.7.77.

(b) Notwithstanding anything contained in these rules the appropriate authority may, if he is of the opinion that it is in the public interest to do so, retire a Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice after he has attained fifty years of age or has completed 25 years of service, whichever is earlier.

By virtue of the note found under the above Rule, it is made clear that the term ''appropriate authority'' referred to in the above clauses means the authority which has the power to make substantive appointment to the post of service from which the Government servant is required or wants to retire. In other words, it is not in dispute that the writ Petitioners being gazetted officers, the competent authority who can exercise the powers under the above Rule is the Governor of the State of Assam. Again, there is no dispute about this factual position.

In all these cases, undisputedly, the impugned orders, in exercise of powers conferred under Clause (b) of F.R. 56, have been passed by the Governor of Assam in each case. It is also not in dispute that in lieu of three months notice, as contemplated under this sub-clause, a bank draft for a sum of Rs. 22,374/-, being three months gross salary which is admissible to the Petitioner (in C.R. No. 1577/94), is enclosed. It is also relevant to point out that the writ Petitioners did not choose to challenge the vires of this Rule for any ground taken therein.

Now let us examine what transpires before this impugned action was taken by the Governor.

The learned Single Judge of this Court has referred to the salient action taken by the Government of Assam before issuance of the impugned orders under F.R. 56(b), at paragraphs 11 and 12 of the judgment in C.R. Nos. 1577/94 and 1578/94. He has pointed out that a note was put up by the Secretary, Personnel Department, referring to the action to be taken by the Chief Secretary following the verbal instructions given by the competent authority for constituting a screening committee to screen these officers and also to take appropriate action. The learned Single Judge also pointed out the indictment made by the screening committee as found in the original records, marked "A" at page 1c, i.e. Sl. 5C etc. But before that, we would like to point out, by a perusal of the original records that before the impugned action was taken and before the constitution of the screening committee, by an order made on 13th January, 1994, the Government of Assam has taken action to frame charges levelled against each one of these Petitioners. A copy of the same is found in the confidential records produced before the Court. It is seen therefrom that the Secretary to the Government of Assam, Personnel Department, Dispur, Mr. Niranjan Ghose, duly signed by him, issued the following charges in respect of the Petitioner in C.R. No. 1577/94:

Charge No. 1:

That while you were holding the post of Deputy Secretary to the Government of Assam, Animal Husbandry & Veterinary Department during the period from 2.8.1991 to 25.11.1992, you were the officer responsible for issue of LOC''s. You had issued a large number of LOC''s under your signature. It was your responsibility to ensure that in issuing the LOC''s, the prescribed procedures are observed, that the LOC''s issued are in conformity with the budgetary provisions under relevant heads of account and the LOC issued by you does not also exceed the amount for which LOC was given to the Department by the Finance Department.

But inspite of all, this, you had issued LOCs under your signature without verification of the budget provision, regulating the issue to be in conformity with the budget provisions.

You acted as per your will and thereby violated all official norms, procedures, canons of financial propriety and acted in a manner unbecoming of a Government servant of your status and rank. You have also violated Rule 3 of the Assam Civil Services (Conduct) Rules, 1965.

You are, therefore, charged with failure to perform your duties and observe prescribed official procedure and canons of financial propriety and also violated Rule 3 of the Assam Civil Services (Conduct) Rules, 1965 and gross misconduct.

Charge No. 2:

That while you were holding the post of Deputy Secretary to the Government of Assam, Animal Husbandry and Veterinary Department during the period from 2.8.1991 to 25.11.1992, you were responsible for the issue of LOCs in Animal Husbandry and Veterinary Department under your signature. It was your responsibility to ensure that the LOCs issued were in conformity with the amounts for which LOC was given by the Finance Department under various heads of account, namely, 2403 and 2404.

You were well aware that an officer must be satisfied himself whether the provisions laid down in this respect were fulfilled before signing LOCs for issue. But you did not take basic precautions of verifying as to whether the demand of the Director of Animal Husbandry and Veterinary Department were in conformity with budget provisions and the amounts released by the Finance Department through LOCs before signing LOCs for issue....

But it was found that while during the year 1991-92, Finance Department issued LOCs to the tune of Rs. 723.5900 lakhs, the amount drawn on the basis of LOCs issued by you in the Kamrup, Dispur, Barpeta, Nagaon, Sibsagar, Tinsukia, Dibrugarh, Tezpur and North Lakhimpur Treasuries alone amounted to Rs. 3879.6402 lakhs.

From the above, it is very much clear that you had issued LOCs under your signature to the tune of Rs. 3156.0502 lakhs in excess of the amount actually sanctioned by the Finance Department, without any authority, intentionally, deliberately with a mala fide intention to misappropriate huge Government money in collaboration with field functionaries and suppliers for your personal gain at the cost of the Government. You violated all officials norms, procedure, discipline and acted in a manner most unbecoming of a Government servant of your status and rank and thereby violated Rule 3 of the Assam Civil Services (Conduct) Rules, 1965.

You are therefore, charged with abetting and conniving in the misappropriation of huge Government money to the tune of Rs. 3156.0S02 lakhs having issued LOCs far in excess of the amount actually sanctioned by the Finance Department, gross violation of canons of financial propriety and committing a fraudulent act, violation of official norms, procedure, discipline and Rule 3 of the Assam Civil Services (Conduct) Rules, 1965 and gross misconduct.

Charge No. 3:

That while you were holding the post of Deputy Secretary to the Government of Assam, in Animal Husbandry and Veterinary Department during the period from 2.8.1991 to 25.11.1992, the basic principle of financial propriety and fundamental precautions in dealing with a document which is an instrument for disbursement of public funds were not observed by you while signing the LOCs. As for example, the word "rupees" were not entered at the appropriate place while typing the amount for which the LOC is valid, a lot of space was left both in front and at the back of the figures giving plenty of scope for manipulation and tampering of figures. Being a member of the Assam Civil Service, a premier service of the State holding a very responsible post, it was your prime responsibility to see that the LOCs were complete in all respect as per financial procedure and that there should be no space left both in front and at the back of the figures giving any scope for manipulation/tampering of figures. But you did not take the minimum basic precaution to prevent manipulation/tampering the figures, leading to the conclusion that you were a party abetting and conniving directly in the forgery/manipulation of the figures of the LOCs with a view to misappropriate Government money for your personal gain at the cost of the Government. You had not only neglected your official duties intentionally and deliberately with a mala fide intention to misappropriate Government money but also provided ample scope for defrauding Government of huge sums of money and thereby violated Rule 3 of the Assam Civil Services (Conduct) Rules, 1965.

You are, therefore, charged with deliberate negligence of duty, connivance and abetment of manipulation of official documents, providing scope for defrauding Govt. of huge amounts of money, violation of official norms, procedure, discipline and violation of Rule 3 of the Assam Civil Services (Conduct) Rules, 1965 and gross misconduct.

Charge No. 4:

That while you were holding the post of Deputy Secretary to the Government of Assam, Animal Husbandry and Veterinary Department during the period from 2.8.91 to 25.11.1992, you issued LOCs directly to the Drawing and Disbursing Officers without any authority even though you were aware of the fact that the financial powers of the Drawing and Disbursing Officers were only Rs. 500/- for purchase of materials supplies. You were well aware that there was a Central Purchase Procedure in the Animal Husbandry and Veterinary Department. The money should have gone to the Director of Animal Husbandry and Veterinary Department for purchase of materials. You were well aware that the Drawing and Disbursing Officers have no authority to purchase material supplies directly.

Knowing the above fact fully well, you intentionally, deliberately and knowingly, signed and issued LOCs for huge amounts to the field officers (Drawing and Disbursing Officers) for purchase of materials when you had no authority to do so, with a malafide intention to connive and abet misappropriation of Govt. money in collaboration with the field officers (Drawing and Disbursing Officers) and suppliers. The major portion of the amounts released through LOCs were related for purchase of materials, such as, medicine, feed, etc. for which no particular requirement was projected by the Director of Animal Husbandry and Veterinary Department. There was also no instruction to issue LOCs direct to the Drawing and Disbursing. Officers.

Not only this, there were several instances of giving LOCs directly to the suppliers at the time of issue of LOCs when you had not authority to do so, which is contrary to prescribed procedure and violation of established practice as it is not the responsibility of the Department to deal directly with the suppliers.

For your above action, you had not only violated the established procedure, norms and practice but also violated Rule 3 of the Assam Civil Services (Conduct) Rules, 1965.

You are, therefore, charged with violation of established office procedure, norms, decorum, discipline and conniving at and abetting an act leading to misuse and misappropriation of funds at the level of the Drawing and Disbursing Officers, violation of Rule 3 of the Assam Civil Services (Conduct) Rules, 1965 and gross misconduct.

Charge No. 5:

That while you were holding the post of Deputy Secretary to the Government of Assam, in Animal Husbandry and Veterinary Department during the period from 2.8.1991 to 25.11.1992, it was your duty to maintain all relevant records for the purpose of proper account keeping of LOCs received, budget provisions, amount sanctioned by the Finance Department for issue through LOC system, LOCs issued from time to time, balance budget provisions, etc. But these records were never maintained by you in the proper format as required. You failed to maintain proper accounts intentionally and deliberately with a matafide intention to manipulate/forge/tamper the official documents to facilitate misappropriate Govt. money.

You are, therefore, charged with deliberate and gross negligence of duty, failure to observe prescribed procedure and giving scope for unscrupulous manipulation of official records, indiscipline and gross misconduct.

It is further seen that these charges are supported by statement of allegations against each one of these persons, as found in the said records. We are of the view that there is no need to reproduce the statement of allegations in support of the charges. Indeed, the statement of allegations also contained the list of documents and the list of witnesses. By a perusal of the charges and the statement of allegations in support thereof, the Petitioners were called upon to present their cases, if they so desired, with the assistance of any other Govt. servant approved by the Disciplinary Authority, but will not be allowed to engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority to present the case in support of the charges before the Inquiring Authority is a legal practitioner or unless the Disciplinary Authority so permits. As a matter of fact, it is further seen that these Petitioners were called upon to file their written statement, if they so desire, and also to inform whether they intended to be heard in person. They were also permitted to inspect the documents, if they so desired.

By a careful consideration of the charges levelled against these Petitioners, it is seen that they are very serious in nature. In each case, a large sum of money is said to have been misappropriated by illegal drawal of this money from the Treasury through LOCs. It was clearly pointed out that these drawal of large sums of money were beyond the limit of the budget amount allotted to the Animal Husbandry and Veterinary Department. Therefore, it was pointed out that the writ Petitioners being Deputy Secretaries of the Department having onerous responsibility of administering the financial administration, failed to check or control the withdrawal of large sums of money contrary to the rules and regulations imposed in this behalf by virtue of the standing rules and regulations of the Government.

It may also be pointed out that as we are aware, at a later stage, the responsibility of investigation of these matters was given to the Central Bureau of Investigation (for short, the CBI), to take up the investigation independently and to submit a report as a public interest litigation petition came up before this Court and the Division Bench of this Court by virtue of the direction given by the Supreme Court had to monitor the investigation made by the CBI and ultimately, of late, it resulted in the CBI having submitted final report in this behalf and the matter was ordered to be disposed of Further, it is relevant to mention here that in the ultimate analysis, apart from a large number of responsible officers, including officers of the IAS cadre, some of the responsible Ministers of the Government of Assam have also been sought to be prosecuted. These matters are pending at several stages. Thus, it is unnecessary for us to go into the details in regard to the factual position. Suffice it to say that a large number of cases constituting a public scandal in the name of LOC scam in relation to the Animal Husbandry and Veterinary Department had been highlighted in the electronic media and the press.

It is also not in dispute that before the impugned orders came to be passed by the Governor, there were two Screening Committees appointed by the Government of Assam for screening of officers of different categories, who have attained 50 years of age* or have completed 25 years of service. The Screening Committees consisted of the following officers:

(a) Screening Committee (officers borne in A.C.S. etc.)

(1) Shri H.N. Das, Chief Secretary, Assam - Chairman

(2) Shri B. Chutia, Secretary, Judicial Department - Member

(3) Shri Niranjan Ghose, Secretary, Personnel Department - Member

(b) Screening Committee (for officers of the Assam Financial Services in the rank of Treasury Officers, etc.)

(1) Shri C.K. Das, Commissioner & Secretary, Finance Department - Chairman

(2) Shri P.C. Sarma, Commissioner & Secretary, Education Department (nominated by Chief Secretary) - Member

(3) Shri Niranjan Ghose - Secretary, Personnel Department - Member

These Screening Committees after the review of cases of officers of the aforesaid two categories on attaining the age of 50 years or on completion of 25 years of service, under F.R. 56(b), by the orders made on 8th April, 1994, recommended as follows:

MINUTES OF THE MEETING OF THE SCREENING COMMITTEE CONSTITUTED BY THE STATE GOVERNMENT IN THE DEPARTMENT OF PERSONNEL VIDE O.M. No. AAP. 156/88/8 DATED 6.4.94 READ WITH AAP. 156/88/13 DATED 29.9.88, HELD ON APRIL 8, 1994 AT 4 P.M. IN THE OFFICE CHAMBER OF THE CHIEF SECRETARY.

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Present:

(1) Shri H.N. Das, I.A.S., Chief Secretary, Assam - Chairman

(2) Shri B. Chutia, Secretary, Judicial Department - Member

(3) Shri Niranjan Ghose, I.A.S., Secretary, Personnel Department - Member

The Committee took into consideration the cases of officers of the Assam Civil Service below the rank of Secretary, who were indicted in the report of the K.S. Rao Committee on the LOC scandal of the Animal Husbandry and Veterinary Department. The names of these officers and their date of birth and date of joining Government service/Assam Civil Service are mentioned below:

Name of officer Date of birth Date of joining Government service

Shri Taranath Gogoi, ACS 1.7.39 August, 1963.

Shri Dwipen Konwar, ACS 1.3.44 September, 1970.

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The Committee noted that the above two officers have cross the age of fifty years irrespective of their period of service in the Government.

The Committee perused the records made available by the Department in respect of the abovementioned two officers and has reason to view that these two officers have indulged in serious malpractices in undertaking fraudulent transactions constituting the LOC scandal of the Animal Husbandry and Veterinary Department and were indicted in the report of the K.S. Rao Committee constituted to enquire into the said LOC scandal. The Committee is also convinced that the officers have substantially contributed in bringing disrepute to the Government with their fraudulent actions and doubtful integrity.

The Committee, therefore, is of the opinion that the abovementioned two officers both outlived their utility and are of doubtful integrity and their continuance in Government service any further would be detrimental to public interest.

In consideration of what has been stated above, the Committee recommends that the abovementioned two officers, namely, (1) Shri Taranath Gogoi, ACS and (2) Shri Dwipen Konwar, ACS, being of doubtful integrity and having outlived their utility for continuance in Government service in-public interest, may be treated to retire as provided under F.R. 56(b)

Sd/- N. Ghose Sd/- B. Chutia, Sd/- H.N. Das 8.4.94 8.4.94 8.4.94 Secretary Secretary Chief Secretary Personnel Deptt. Judicial Deptt. Assam

A similar recommendation was made by the other Screening Committee in respect of Shri Malin Chandra Gohain and four others, as per the minutes of the meeting held on 8.4.94, which is available in the aforesaid confidential records submitted by the Government.

Pursuant to the recommendations made by these Screening Committees, after review of the cases of these officers, the Governor, by orders made on 11th April, 1994, in exercise of powers conferred under F.R. 56(b) of the Fundamental Rules, has passed the impugned orders by which these Petitioners were retired compulsorily in the light of the said impugned orders. It is the legality of these orders that is called in question in these petitions.

After analysing the factual position and the salient aspects giving rise for a serious order of compulsory retirement of these Petitioners, the Court will have to examine the legal questions now raised by the Appellants.

To reiterate, we will now examine the first point urged by Mr. Lahiri, learned Sr. counsel, as to the stigma said to have been attached to the impugned orders of compulsory retirement. The thrust of the argument of Mr. Lahiri is based upon the principles contained under Article 311 (2) of the Constitution of India.

In I.N. I.N. Saksena Vs. State of Madhya Pradesh, the Supreme Court was called upon to interpret the provision of Rule 56 of the Fundamental Rules applicable to the State of Madhya Pradesh and also refer to the provision of Article 311(2) of the Constitution of India in that case with a view to record a finding as to whether such an order contained any stigma. In paragraph 3 of the judgment, their Lordships of the Supreme Court, referring to the provision of F.R. 56 and also the age of the Petitioner for the purpose of applying this provision as a measure of compulsory retirement, recorded a finding, referring to the contentions urged for the Appellant, as follows:

His contention was two-fold, namely - (1) that the rule as it stood after the amendment of November 29, 1963, published in the gazette of December 6, 1963, contained no provision reserving power of Government to retire a Government servant after he attains the age of 55 years on three months notice without assigning any reason and, therefore, the Appellant could not be retired on December 31, 1963 in the face of the rules and (2) that as the order of his retirement cast a stigma on him it amounted to his removal, and, therefore, action under Article 311 of the Constitution was necessary, and that was admittedly not complied with.

This is on the admitted facts of that case. Further, in paragraph 7 of the judgment referring to the provision of Article 311(2) of the Constitution, the Supreme Court held as follows:

In the, circumstances we hold that as the order does not expressly contain any words from which any stigma can be inferred it cannot amount to an order of removal. What the Appellant wants us to hold is that the mere fact that a Government servant is compulsorily retired before he reaches the age of superannuation is in itself a stigma. But this is against the consistent view of the Court that if the order of compulsory retirement before the age of superannuation contains no words of stigma it cannot be held to be a removal requiring action under Article 311.

This view of the Supreme Court had been reconsidered and reiterated in Tara Singh and Others Vs. State of Rajasthan and Others, . Considering this question of law, the Supreme Court held in this case that:

Where in a writ petition against an order of compulsory retirement passed in conformity with the relevant service rules, it was contended on behalf of the Petitioner that the order was passed in the background that the Petitioner had outlived his utility to the Government, but the order did not say so.

Held that the order did not contain any stigma against the Petitioner so as to attract the applicability of Article 311(2).

(Please see paragraph 26 of the judgment).

Therefore, in the light of the foregoing rulings of the Supreme Court, the contention of Mr. Lahiri, learned Counsel for the Appellants, is without any force and hence it is rejected.

We will now consider the next point, which deals with the question as to whether the impugned orders of compulsory retirement of these Petitioners could be said to be based upon public interest. Undoubtedly, by a perusal of the impugned orders, it is seen therefrom that the language employed in the impugned orders clearly goes to show that while exercising the powers conferred under F.R. 56(b), the Governor of Assam clearly uses the words as follows:

...hereby requires...to retire from service with immediate effect, in public interest.

Therefore, the phrase used in the course of the order is in tune with this requirement of law that the order of compulsory retirement is in public interest. That apart, by a careful consideration of the findings recorded by the Screening Committee, it is abundantly made clear that the Screening Committee while recommending the cases of the Petitioners for compulsory retirement, indicated each one of them as follows:

In consideration of what has been stated above, the Committee recommends that the above-mentioned two officers,.... being of doubtful integrity and having outlived their utility for continuance in Government service in public interest may be treated to retire as provided under F.R. 56(b).

(emphasis supplied)

Therefore, the Court will have to read not only the intendment of the impugned orders made by the Governor in exercise of the powers conferred under F.R. 56(b), but also take into consideration the clear and unambiguous finding recorded by the Screening Committee making use of a very strong language extracted above. Therefore, the Court will have to consider whether the impugned orders of compulsory retirement are in tune with public interest, including weeding out of inefficient and dishonest employees, as held by the Supreme Court in Brij Mohan Singh Chopra Vs. State of Punjab,

Dealing with a similar question of law, the Supreme Court had the occasion to conclude that:

Whether it is in the public interest or not, to retain an employee in service after he completed 25 years of service is for the -Government to decide and its opinion on the point cannot be challenged before a Court of law except on the ground of mala fides.

(Please see, Jagdish Mitter Vs. The Union of India (UOI),

Further, interpreting the provision of the law in this context, the Supreme Court held that:

Even failure to consider a material fact in determining the efficiency of the employee is not a question to be challenged before the Court of law except on the ground of mala fides. (Please see, Brij Behari Lal Agarwal Vs. Hon''ble High Court of Madhya Pradesh and Others,

(Please also see, State of Uttar Pradesh Vs. Chandra Mohan Nigam and Others,

Therefore, in the light of these authorities, it is not possible to accede to the submission of Mr. Lahiri, learned Sr. Counsel appearing for the Appellants, to record a finding in his favour on this point. Therefore, the conclusion on this point is against the Appellants.

Looking at the trend of argument and the questions of law required to be considered with a view to answer points Nos. (3), (4) and (5), which are similar in character, we intend to consider all these three points together.

The third point as contended by learned Counsel for the Appellants is, whether the impugned orders of compulsory retirement made by the Governor is based upon the requisite opinion arrived at by the Governor in the public interest. The next point, as urged by learned Counsel for the Appellant is whether the decision arrived at by the Governor invoking F.R. 56(b) was based on collateral grounds and the next point is whether the impugned orders could be construed as an impeachment, we will now examine the impact and the cumulative effect of the legal arguments advanced by Mr. Lahiri, learned Counsel for the Appellants seeking to make out a specific case considering all these three points together. In other words, the Court will have to examine as to whether the Appellants have been able to make out a case with a view to enable the Court to find fault with the impugned orders keeping in view the salient aspects contained in these three points.

One of the legal contentions of Mr. Lahiri to drive home these points is that these Petitioners had been maintaining a very good reputation in their career of service and that, therefore, before invoking and exercising power under F.R. 56(b), the competent authority ought to have seen and considered the entire confidential reports including the latest, as the law contemplates. To say so, Shri Lahiri placed strong reliance upon the judgment of the Supreme Court in S. Ramachandra Raju Vs. State of Orissa, The learned Single Judge had the occasion to refer to this ruling of the Supreme Court in the course of his orders while disposing of the writ petitions. Let us now proceed, in the light of the arguments advanced by Mr. Lahiri, to consider this ruling of the Supreme Court.

Referring to the salient aspects, facts and circumstances including the questions of law arising in the case of Ramachandra Raju (supra), including the provision of Article 311 of the Constitution and Rule 71 (a) of the Orissa Service Code, their Lordships of the Supreme Court laid down the law as follows:

Though the order of compulsory retirement is not a punishment and the Government employee is entitled to draw all retiral benefits including pension, the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The entire service record of character rolls of 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. On total evolution of the entire record of service if the Government or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily the Court may not interfere with the exercise of such bona fide exercise of power but the Court has power and duty to exercise the power of judicial review not as a Court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the Government Officer compulsorily from service.

(Please see, para 9 of the judgment)

Indeed, in the case of Ramachandra Raju (supra), regard being had to the nature of the impugned orders made therein with a view to retire him compulsorily, certain typical situation had been taken into consideration with a view to ensure the requirement of Article 311(2) of the Constitution of India. While doing so, their Lordships of the Supreme Court had to say in para 10 as follows:

Where the Government took only the solitary adverse report for one year against the employee to compulsorily retire him from service and the Review Committee also considered only that report and neither earlier reports nor subsequent reports which established that the employee had meritorious record of service and that devotions to service was good, were not taken into consideration, the exercise of power by Government was arbitrary and order of compulsory retirement was liable to be set aside. It was, more so, when the employee was promoted after the adverse report and the adverse comments were communicated to him and in a mechanical way they rejected the report to expunge the adverse remarks, even without going into the contention of the employee that the senior officer, was actuated with mala fides by submitting wrongly or falsely in confidential reports.

By a careful consideration of the facts and the set of circumstances which were made the basis for the impugned order of compulsory retirement of Shri Ramachandra Raju, the Supreme Court had to delve deep into the matter to record appropriate finding in that case. It is necessary for us to note that in case of Ramachandra Raju (supra), there was no allegation of dishonesty or want of uprightness or a serious malpractice in finance, much less there was a public stigma, as was found in the instant case. In other words, the specific allegations of serious financial malpractices, dishonesty, withdrawal of large sums of money contrary to the rules and regulations in an organised manner, or the involvement of crores of rupees of public money having been taken away from the Treasury, was not to be found in Ramachandra Raju case (supra). In other words, that was a case where solely based upon certain singular confidential report which was adverse against the writ Petitioner, the Government passed the impugned order seeking to retire him compulsorily. Contrary to such case, in the instant case, where the activities of these Petitioners including others dealing with large amount of finance, withdrawal of crores of rupees from the Treasury under LOCs which became a talk of the town and a pubic scam highlighted by the electronic media and the press resulting in the CBI enquiry and seeking sanction to prosecute a large number of officers including Ministers. Therefore, there is a good deal of difference factually when compared the facts of these cases with those of Ramachandra Raju case (supra). On the question of law while interpreting the provision of Article 311, the finding of the Supreme Court in Ramachandra Raju case (supra) cannot be said to be in favour of the Petitioners herein, inasmuch as, the interpretation of the provision of Orissa Service Code, Rule 71A, read with provisions of Articles 309 and 311 of the Constitution, the ultimate conclusion is against these Petitioners, inasmuch as, apart from the Rao Committee, which was appointed by the Government immediately after the highlighting of the scam, the Government also constituted Screening Committees referred to above, with a view to review these cases. The Screening Committees, as referred to above, having reviewed these cases analysing the back drop of the withdrawal of large sums of money from the Treasury, also recorded clear indictment against these officers, not based upon the cumulative effect of the annual confidential reports, but because of the serious lapses on the part of these officers, holding high offices and discharging the onerous duties dealing with the finances of the State. In other words, while dealing with the public money, the officers who were found to have been indulging in withdrawal of large sums of money contrary to the rules and regulations, which is one of the main factors resulting in the scam. The Court cannot, therefore, loose sight of these facts. Thus, though there is a finding recorded by the Supreme Court in Ramachandra Raju case (supra) referring to the cumulative effect of the annual confidential reports of a Government servant, the factual position in Ramachandra Raju case is entirely different from those considered in the instant case. Therefore, the observations of the Supreme Court in Ramachandra Raju case (supra) would not come to the aid of these Petitioners/Appellants.

On the other hand, while considering the cases of the Petitioners herein, instead of emphasising their service records, their performance in the office and the annual confidential reports, the Court will have to take into consideration the serious repercussion of the malpractices, organised method of withdrawal of sums of money from the Treasury in connivance with the other high-ups resulting in crores of rupees LOC scam, as a result which the Government had to resort to full-fledged enquiry to be made by the CBI and the report submitted by the CBI being against the writ Petitioners and their prosecution was ordered subsequently. Therefore, the Court will have to consider all these relevant factors apart from the service records or the performance of these officers while discharging the duties in their respective offices at the relevant point of time.

While dealing with matters of this kind, the Court must also take into consideration as to what would be the repercussions on the public at large in the event of the Court taking a lenient view to enable such Government servants, who were indicted by the competent authorities as dishonest and their conduct unbecoming of a Government servant, if allowed to continue in service. On the other hand, the public interest demands that the Court must take into consideration the serious repercussion not only on the public, but also on the society at large. Both the Department as well as the Screening Committee have made use of very strong language observing that these Petitioners have outlived their utility for continuance in Government service and that it is high time that they shall not be allowed to continue in service in the public interest.

Dealing with the last point as to whether the impugned orders made by the Governor invoking F.R. S6(b) are actuated by mala fide or based upon arbitrariness, etc. as argued by Mr. Lahiri, learned Sr. counsel appearing for the Appellants, in the light of the rulings of the Supreme Court which were already cited, the writ Petitioners have not been able to make out a case either before the Writ Court or before the appellate Court that the impugned orders suffer from either mala fide or arbitrariness. Therefore, Mr. Lahiri has not been able to persuade us to take a view in his favour. Therefore, we reject this contention also.

Considering all these salient aspects of the matter including the questions of law which were examined in detail, we are clearly of the view that the Appellants failed to make out a case to take a different view from the view expressed by the Writ Court.

In the result, these appeals fail and they are dismissed. Parties to bear their own costs.