Lakhan Lal vs Indian Roads Congress

Hima Kohli, J.—The petitioner has filed the present writ petition praying inter alia for issuing directions to the respondent, Indian Roads Congress not to take any action in respect of its Order dated 30th December, 1988 by which it was decided to retire the petitioner upon attaining the age of 55 years, with effect from 3rd April, 1989 in public interest, in exercise of powers conferred under Rule 56(j) of the Fundamental Rules and Memorandum dated 24th February, 1989 issued by the Representation Committee rejecting the representation of the petitioner holding that it would not be in public interest to continue the petitioner in service. Counsel for the petitioner submitted that the petitioner was working as a Section Officer with the respondent since the year 1954 and there was no complaint regarding his performance, and that for the first time in September 1987. the petitioner received two Memos from the respondent, dated 14th September and 24th September, 1987 regarding his unsatisfactory performance. On 21st November, 1988, the petitioner received an Office Memorandum from the respondent by which shortcomings in his character roll for the periods ending December 1984. December 1985 and December 1987'' were conveyed to him and he was advised to be more careful in timely disposal as well as handling of office work. The aforesaid Office Memorandum was followed by the impugned order dated 30th December, 1988, compulsorily retiring the petitioner upon attaining the age of 55 years with effect from 3rd April, 1989.

Counsel for the petitioner contended that the adverse entries made against the petitioner as communicated to him in the Office Memorandum dated 21st November, 1988 could not be taken into consideration for passing the impugned order as the said entries were never notified to the petitioner prior to the order year 1988. Secondly, it was submitted that no material was put forth either before the Review Committee or the Representation Committee for issuing the impugned order of compulsorily retiring the petitioner. Counsel for the petitioner also contended that none of the observations made in the Office Memorandum dated 21st November, 1988 or impugned order dated 30th December, 1988 showed that the petitioner was proposed to be compulsorily retired in public interest.

In support of his submissions, counsel for the petitioner relied on the following judgments:

(i) Baldev Raj Chadha Vs. Union of India (UOI) and Others,

(ii) Trilok singh v. Union of India & Ors. 1989 (1) DL 99 (DB).

(iii) T. Ramegowda Vs. R. Krishnamurthy and others,

(iv) Registrar, High Court of M.P., Jabalpur Vs. Kumari Rajabai Gorkar and Another,

(v) Sukhdeo Vs. Commissioner Amravati Division, Amravati and Another,

(vi) The State of Gujarat and Another Vs. Suryakant Chunilal Shah,

It was further argued on behalf of the petitioner that his date of birth being 3rd March, 1933, he could have been prematurely retired only upon his completing the age of 50 years, 55 years or on completing the next year of service and therefore he could not have been retired on 3rd April, 1989, It was also stated that the respondent could have reviewed the case of the petitioner in the quarter of July-September of the previous year, i.e. in the year 1988 and, he could not have been retired either prior to or later than 3rd March of the said year, i.e. when he completed the age for premature retirement and that the Government of India''s Guidelines and Rules in this regard do not allow the respondent to retire a person in between the year of his service.

Counsel for the petitioner further urged that the services of the petitioner having been reviewed twice, i.e. once at the age of 50 years and the second time at the age of 55 years, there was no reason to direct his premature retirement, one year after the petitioner attained the age of 55 years, as done by the respondent. Furthermore, it was argued that while rejecting the representation of the petitioner vide the impugned Memorandum dated 24th February, 1989, the petitioner was not granted any personal hearing and hence the principles of natural justice were violated by the respondent.

On the other hand, counsel for the respondent disputed the contentions of the petitioner and supported the orders of his premature retirement on the ground that the said orders were legal, valid and justified. Counsel for the respondent denied that the services of the petitioner were reviewed twice as claimed by him. It was stated that the petitioner was a Grade C employee, in terms of Fundamental Rules 56(j) and his services were reviewed after he attained the age of 55 years. He further submitted that the petitioner has failed to show any Rule or Regulation of the Government of India in support of his contention that as his case was not reviewed in the quarter of July-September of the previous year and since his date of birth fell on 3rd March, the petitioner could not have been retired prior to or later than 3rd March.

It was submitted that after being prematurely retired vide order dated 31st March, 1989, the petitioner asked for payment of pension which amount was released to him and thus he was not entitled to claim any relief in the writ petition. It was further submitted that the prayer made in the writ petition is not for quashing the impugned orders by issuance of a writ of certiorari, but only for directing the respondent not to take any action on the two impugned orders which relief had been rendered infructuous, the petitioner having already been prematurely retired. It was further stated that the petitioner was given an option by the respondent to continue in service in the next lower post of ''Assistant'' at the time when he was prematurely retired, but he did not opt for revision within the stipulated period and thus he stood retired prematurely. It was stated that the retirement of the petitioner was decided by the Review Committee of the respondent which was a high level body which considered the case of the petitioner along with similar other cases and the decision to retire him prematurely was based on the service records of the petitioner duly scrutinized by the Review Committee. There being no allegations of malafides by the petitioner against any of the members of the Review Committee, and the decision of Review Committee having been approved by the competent authority of the respondent, the respondent was justified in retiring the petitioner prematurely in public interest.

It was submitted that after examining the entire service records of the petitioner, it was found that the petitioner was not fit to be retained after attaining the age of 55 years, in public interest and the said decision did not deserve to be interfered with, there being no violation of FR 56(j) on the part of the respondent. In support of his contentions, counsel for the respondent relied on the following judgments :

(i) Posts and Telegraphs Board and others Vs. C.S.N. Murthy,

(ii) Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another,

(iii) Union of India (UOI) and Others Vs. Dulal Dutt,

(iv) State of U.P. and Another Vs. Bihari Lal,

(v) Parbodh Sagar Vs. Punjab State Electricity Board and Others,

(vi) Purushottam Kumar Jha Vs. State of Jharkhand and Others,

I have heard the learned counsels for both the parties and have perused the documents placed on record, including the original records produced by the counsel for the respondent.

The first contention raised by the counsel for the petitioner is that the adverse entries made against the petitioner as communicated to him by the respondent for the first time only in the year 1988 vide Office Memorandum dated 21st November 1988 ought not to have been taken into consideration while passing the impugned order. In this regard, it is pertinent to note that though communication of adverse entries to the employee is desirable so that he could be given an opportunity for improvement, however mere non communication of adverse remarks is not a ground for setting aside an order of compulsory retirement. Support may be drawn from the following observations of the Supreme Court in the case of Bihari Lal, (supra):

We have issued notice to the respondent who appeared through counsel and filed counter affidavit. It is now settled law that the entire service record should be considered before taking a decision to compulsorily retire a government servant exercising the power under Rule 56(j) of the Fundamental Rules. It is not necessary that adverse remarks should be communicated or every remark, which may sometimes be categorised as adverse, be communicated. It is on an overall assessment of the record, the authority would reach a decision whether the government servant should be compulsorily retired in public interest. In an appropriate case, there may not be tangible material but the reputation of officer built around him could be such that his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants. Therefore, the government could legitimately exercise their power to compulsory retire a government servant. The court has to see whether before the exercise of the power, the authority has taken into consideration the overall record even including some of the adverse remarks, though for technical reasons might be expunged on appeal or revision. What is needed to be looked into is the bona fide decision taken in the public interest to augment efficiency in the public service. In the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the Court/Tribunal in exercise of its judicial review......

In the case of Baikuntha Nath Das and Anr. (supra), the Supreme Court laid down certain principles with respect to compulsory retirement under FR 56(j) or a rule corresponding to it. One of the principles so laid down was that the principles of natural justice have no place while dealing with an order of compulsory retirement, since it is not an order of punishment and that the High Court or the Supreme Court would not examine the matter as an appellate court, unless they are satisfied that the order is passed malafide, or on the basis of no evidence, or it was arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, in short, if it is found to be perverse. It was further held that an order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it, uncommunicated remarks were also taken into consideration.

In the present case, a perusal of the Minutes of the Meeting of the Review Committee as also that of the Representation Committee held on 1st December, 1988 and 23rd February, 1989 respectively show that both the Committees went through the entire service records of the petitioner and on the basis of the said records, arrived at the conclusion that the petitioner was unfit to hold the office of Selection Officer, in public interest. Also, nothing has been stated on behalf of the petitioner to show that the impugned order was passed against the petitioner by the respondent with a malafide intention. In the case of Purshottam Kumar Jha (supra), the Supreme Court observed as below:-

It is well settled that whenever allegations as to malafides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was malafide and malicious is not enough. In absence of material particulars, the Court is not expected to make ''fishing'' inquiry into the matter. It is equally well established and needs no authority that the burden of proving malafides is on the person making the allegations and such burden is ''very heavy''. Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be ''made than made out'' and hence it is necessary for courts to examine it with extreme care, caution and circumspection. It has been rightly described as ''the last refuge of a losing litigant''. (Vide Gulam Mustafa and Others Vs. The State of Maharashtra and Others, ; Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others,

There being no clear and unambiguous allegations of malafide in the present case, it is not open for this Court to interfere in an administrative decision of the respondent while exercising jurisdiction under Article 226 of the Constitution of India.

It may be emphasized that an order of compulsory retirement is not an order of punishment. F.R. 56(j) authorizes the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide and the matter is well within the subjective satisfaction of the department concerned. The courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of the material available on record. Reference in this regard may be made to the judgment of the Supreme Court in the case of Post and Telegraphs Board and Ors. (supra) wherein it held as below:

It will be clear from the extracts referred to above, that though the respondent''s conduct was quite satisfactory till March, 1970, his standard of work had declined in the last two years under review. In both these years, it was found that he was not taking adequate interest in his work and was responsible for delays of various kinds. As has already been pointed out, an order of compulsory retirement is not an order of punishment. F.R.56(j) authorizes the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. 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 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 plea of the petitioner that the order of compulsory retirement did not show that the petitioner was being compulsorily retired in public interest is devoid of merits. It is settled law that an order of compulsory retirement is not an order of punishment. [Refer: R.L. Butah Vs. Union of India (UOI) and Others, , Union of India (UOI) Vs. Col. J.N. Sinha and Another, Nor is an order of compulsory retirement required to be a speaking order. [Refer: Union of India (UOI) and Others Vs. Dulal Dutt,

The judgments cited by the counsel for the petitioner also in principle state that the Government should form the opinion that the government officer needs to be compulsorily retired from service only on consideration of the totality of the facts and circumstances. In the case in hand, the original documents produced by the respondent reveal that Review Committee had duly considered the case of the petitioner along with similar other cases, and had arrived at the decision to compulsorily retire him, only after taking his entire service records into consideration.

The Court also finds force in the argument of the counsel for the respondent that since the petitioner was a Grade''" employee, sub clause (i) of the Fundamental Rule 56(j) did not apply to the petitioner, and as per the requirements of FR 56(j)(ii) his services were reviewed after he attained the age of 55 years. Also, the petitioner has failed to place on record, any Rule or Regulation issued by the Government of India to show that his case could be reviewed only in the quarter of July-September of the previous year or to show that since his date of birth was 3rd March it, could only be retired on that particular date, and not prior to or later on. the said argument of the counsel of the petitioner remains unsubstantiated by any documents and therefore fails. In view of the facts and circumstances of the present case and the position of law as discussed above, the Court is not inclined to interfere with the impugned order dated 30th December, 1988 or the impugned Memorandum dated 24th February, 1989. The writ petition therefore fails and is dismissed. Parties shall bear their own costs.