Malin Chandra Gohain vs State of Assam and Another

J.N. Sarma, J.—This application has been filed challenging the legality and validity of the order of compulsory retirement dated 11.4.94 passed by the authority in exercise of the power under Rule 56(b) of Fundamental Rules. This is Annexures-4 to the writ application and that is quoted below:

In exercise of the powers conferred under F.R. 56 (b) the Governor of Assam hereby requires Shri Molin Chandra Gohain, Financial Adviser, Assam Tribal Development Authority (under suspension), a member of the Assam Finance Service, who has already attained the age of 50 years, to retire from service with immediate effect, in public interest.

A Bank Draft bearing No. MBC/28-181274 dated 11.4.94 for Rs. 20,982/-(Rupees Twenty Thousand nine hundred eighty two) only being three months gross salary which is admissible to Shri Molin Chandra Gohain, in lieu of 3 (three) mouths notice as provided under F.R. 56(b) is enclosed.

I have heard Mr. J.M. Choudhury, learned Counsel for the Petitioner and Mr. D.P. Chalilia, learned Govt. Advocate for the Respondents.

An affidavit-in-opposition has been filed on behalf of Respondents and the record also has been produced before me. The contention of Mr. Choudhury is that this order of compulsory retirement is not in the public interest but by way of punishment and the court should look to the record by lifting the veil and consider whether the order was by way of punishment. In this connection Mr. Choudhury submits that earlier an enquiry was held regarding the defalcation by the Petitioner to the tune of Rs. 20 crores and odd and when this departmental proceeding was pending, this order of compulsory retirement was passed. The record shows that a Screening committee was constituted and the said committee submitted a report which is Annexure-(sic) at page 56 of the record submitted by the Govt. Advocate. That is quoted below:

MINUTES OF THE MEETING OF THE SCREENING COMMITTEE CONSTITUTED BY THE STATE GOVT. IN THE DEPARTMENT OF PERSONNEL VIDE No. AAP. 156/88/PT/3 DATED 4th APRIL, 1993.

MEETING MELD ON 8.4.94 AT 10.00 A.M. IN THE OFFICE CHAMBER OF THE COMMISSIONER & SECRETARY, FINANCE.

1) Shri C.K. Das, IAS, Commissioner & Secy., Finance = Chairman.

2) Shri P.C. Sarma, IAS Commissioner & Secy., Education-Department (Nominated by Chief Secretary) = Member

3) Shri Niranjan Ghose, IAS Secretary, Personnel = Member.

The Committee took into consideration the cases of officers of the Assam Financial Services in the rank of Treasury Officers/Finance & Accounts Officers who were indicated in the report of the K.S. Rao Committee on the LOC scandal of the Animal Husbandary and Veterinary Deptt.

The names of these officers with their date of birth and date of joining the Govt. service/Assam Finance Service are mentioned below:

Name of the Officer Date of birth Date of joining in Govt. Date of joining in Assam Finance

I) Shri Malin Ch. Gohain Ex-Treasury Officer, Sibsagar. 1.9.38 2.1.63 22.1.80

2) Shri Tileswar Dutta Ex-Treasury Officer, Nagaon. 1.1.44 24.9.63 28.6.84

3) Shri Prabin Ch. Sarma Treasury Officer Goal para 1.2.39 1958 Feb. 1984.

4) Shri Sushil Kr. Gogoi Ex-Treasury Officer Goal para 1.7.37 4.10.61 Feb. 1988.

5) Shri Mahendra Narayan Nath Ex Treasury Officer, Barpcia 1.3.41 2.9.61 19.6.84

The Committee noted that all the above five officers have crossed the age of 50 years irrespective of their period of service in the Govt.

The Committee perused the records made available by the Deptt. in respect of the above mentioned five officers and has reason to view that these five officers have indulged in serious malpractices in undertaking fraudulent transactions constituting the LoC scandal of the Animal Husbandary and Veterinary Deptt. and were indicted in the report of the K.S. Rao Committee constituted to inquire into the said LoC scandal. The Committee is also convinced that the above mentioned officers have substantially contributed in bringing disrepute to the Govt. with their fraudulent actions and doubtful integrity.

The Committee, therefore, is of the opinion that the above mentioned five officers have both outlived their utility and are of doubtful integrity and their continuance in Govt. service any further would be detrimental to public interest.

In consideration of what has been stated above, the Committee recommends that the above mentioned officers namely : (1) Shri Malin Ch. Gohain (Ex Treasury Officer, Sibsagar(2) Shri Tileswar Dutta (Ex-Treasury Officer, Nagaon), (3) Shri Prabin Ch. Sharma (Treasury Officer, Goalpara) and (4) Shri Sushil Kr. Gogoi (Ex Treasury Officer, Goalpara) and (5) Shri Mahendra Narayan Nath (Ex Treasury Officer, Barpeta) being of doubtful integrity and having outlived their utility for continuance in Govt. service in public interest may be considered for retirement as provided under 56(b).

Sd/-Illegible (P.C. Sarma) Commissioner & Secy. Education

Sd/-illegible (C.K. DAS) Commissioner & Secretary Finance

(Sd/-- Illegible) (NIRANJAN GHOUSE) Secretary, Personnel.

Rule 56(b) F.R. reads as follows:

F.R. 56 (a)..........

(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 Govt. 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.

Mr. Choudhury in support of his contention that it is by way of punishment and the court can quash such an order of compulsory retirement relies on Ram Ekbal Sharma Vs. State of Bihar and another, where in para 28 the Supreme Court pointed out as follows:

On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the Govt. servant who is directed to be compulsorily retired from service, the Court if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Govt. servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the concerned Govt. servant as has been held by this Court in Anoop Jaiswal''s case. This being the position the Respondent - State cannot defend the order of compulsory retirement of the Appellant in the instant case on the mere plea that the order has been made in accordance with the provision of Rule 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the Appellant. But in view of the clear and specific averments made by the Respondent-State that the impugned under has been made to compulsorily retire the Appellant from service under the aforesaid Rule as the Appellant was found to have committed grave financial irregularities leading to financial loss to me State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide.

This case of 1990 SC 1368 (Supra) was considered by the Supreme Court in its recent decision in S. Ramachandra Raju Vs. State of Orissa, where in para 6 the Supreme Court pointed out the purpose of compulsory retirement.

The whole purpose of the rule is to weed out the worthless without the punitive extremes covered by Article 311 of Constitution. After all, Administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies. They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive, insouciant, unintelligent or dubious conduct impede the flow or promote stagnation. In a country where speed, sensitivity, probity, and non-irritative public relations and enthusiastic creativity are urgently needed, paperlogged processes and callous cadres are the besetting sin of the Administration. It is in public interest to retire a never-do-well, but to juggle with confidential reports when a man''s career is at stake is a confidence trick contrary to public interest. Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision-making. The appropriate authority, not the court, makes me decision, but even so, a caveat is necessary to avoid misuse.

The Supreme Court further pointed out that exercise of the power must be bona fide and it must promote public interest. The order shall fail only if it is unreasonable, arbitrary and disguised dismissal. When an order is challenged and its validity depends on its being supported by public interest the state must disclose the material so that the court may be satisfied that me order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of ''public interest'' justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well known and it is bound to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest.

After considering the earlier cases in para 9, the Supreme Court laid down the law as follows:

It is thus settled law that though the order of compulsory retirement is not a punishment and the government employee is entitles 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 dead wood need to be removed to augment efficiency, Integrity in public service need to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace in public service and injurious to public interest. The entire service record or character rolls or 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. When an officer reaching the age of compulsory retirement, as was pointed out by this court, he could neither seek alternative appointment nor meet the family burden with the pension or oilier benefits (sic) he gets and thereby he would be subjected to great hardship and family would be greatly affected. Therefore before exercising the power the competent appropriate authority must weigh pros and cons and balance the public interest as against the individual interest. 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 vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the government officer compulsorily from service.

The same question was considered by this Court in a recent decision in Civil Rule Nos. 1577 and 1578 of 1994 (sic) Gogoi and ano. v. State of Assam and Ors. wherein also the question of compulsory retirement of two persons were challenged and this Court dismissal the writ application. The power of judicial review as indicated above is absolutely limited. The court can see whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration. On consideration of the materials on record and after hearing the learned Counsel for the parties, I do not find that there is merit in this application inasmuch as the authority formed the subjective opinion to dismiss the Petitioner having arrived at a decision that the Petitioner has outlived the utility for continuance in Govt. service in public interest.

Accordingly, this writ application is dismissed.