State of West Bengal vs Ajit Baran Chakravorty

Sabyasachi Mukharji, J.—This appeal is concerned with the validity of an order of compulsory retirement dated June 14, 1972, passed in exercise of power under Rule 16(3) of the All India Services (Death-cum-Retirement) Rules, 1958. The said order reads as follows:

In exercise of the powers conferred by Sub-rule (3) of Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules. 1958, the President of India, in consultation with the Government of West Bengal, is pleased to require that Shri A.B. Chakraborty, a member of the Indian Police Service, who has already attained the age of 50 years, shall in the public interest retire from service on the expiry of 3 months from the date of service of this notice.

By order of the President Gaan Prakash Joint Secretary to the Government of India.

In order to appreciate the contentions urged in this appeal it would be necessary to refer to the facts. The Respondent No. 1 joined the Indian Police Service on September 15, 1948 and served the Police department in different capacities. At the relevant time when the impugned order was passed the Respondent No. 1 was the State Commandant, West Bengal National Volunteer Forces, Administrative Buildings, Kalyani. In October 1961, the Government of India, Ministry of Home Affairs, had issued circulars regarding the preparation and maintenance of confidential reports in respect of the Government Officers. Paragraphs 8 and 9 of the said circulars which are relevant for the present purpose provided as follows:

Communication of adverse remarks. It is necessary that every employee should know what his defects are and how he can remove them. Past experience suggests that the best results will be achieved only if every reporting officer realised that it is his duty not only to make an objective assessment of his subordinates work and qualities, but also to give to him at all times the necessary advice, guidance and assistance to correct his faults and deficiencies if this part of the reporting officers duty is properly performed, there should be no difficulty about recording adverse entries, because they would only refer to defects which had persisted despite the reporting officer''s efforts to have them corrected. Accordingly, in mentioning any faults, defects, the reporting officer should also give an indication of the efforts he made by way of guidance, admonition etc. to get the defects removed and the result of such efforts.

In communicating remarks to the officer reported upon, the following procedure should be followed:

(a) Where no adverse entry is made in confidential report nothing should be communicated, except in cases dealt with below:

(b) Where an adverse entry is made, where it relates to a remediable or to an irremediable defect, it should be communicated but while doing so, the substances of the entire report including what may have been said in praise of the officer should be communicated; and

(c) Where the report on an officer shows that he had made efforts to remedy or remove defects mentioned in the preceding report, the fact should be communicated to officer in a suitable form and a copy of such communication added to the character roll.

The object of the second report of (b) and of (c) is to let an officer know that his good Qualities as well as his defect had been recognised and that notice had been taken of the improvement made by him.

Representation against adverse remarks:

Representations against adverse entries should be made within three months of the date of communication. However, the competent authority, may at its discretion, entertain a representation made beyond the time specified, above if there is satisfactory explanation for the delay.

The following procedure may be adopted in dealing with representation from the Government servants against'' adverse remarks communicated to them:

(i) All representations against adverse remarks should be examined by an authority superior to the reviewing officer, in consultation, if necessary, with reporting and the reviewing officer. The superior authority referred to shall be regarded as the competent authority to deal with such representations;

(ii) If it is found that the remarks were justified and the representation was frivolous, a note will be made in the confidential report of the representations that he did not take correction in good spirit;

(iii) If the competent authority feels that there is no sufficient ground for interference, the representation should be rejected and the officer informed accordingly;

(iv) If he, however, feels that the remarks should be toned down and he should make the necessary, entry separately with proper attention at the appropriate place on the report the correction should not be made in the earlier entries themselves; and

(v) In the event of the competent authority coming to the conclusion that the adverse remark was inspired by malice or was entirely incorrect or unfounded and therefore deserves expunction he should score through the remarks Paste it over or obliterate it otherwise and should make an entry, with his signature and date, stating that he had done so. Bat before taking such action, he should bring it to the notice of the head of the department of office if he himself does not occupy that position.

Representation or explanation against adverse entries should be added to the confidential reports. If the representation was well-founded, it would have resulted in the competent authority toning down or expunging the adverse remarks if the representation was without substance, it must have been rejected. In either case, no useful purpose should be served by adding the representation itself to the confidential report.

In October 1967, the Respondent No. 1 was superseded by an order made by the Government; the Respondent No. 1 moved an application on October 3, 1959, under Article 226 of the Constitution and a rule nisi being C.R. No. 6738(W) of 1969 was issued. The said application is pending. On or about March 1970 the Respondent No. 1 made a representation to the Governor of West Bengal complaining about bias, prejudice and vindictiveness of Sri D.G. Bhattacharjee, the then D.I.G.E.B. and Addl. I.G. of Police and praying for an order for supplying the copies of the adverse remarks if any against the Respondent No. 1. The Respondent No. 1 contended in the instant writ application that there was no response to the said representation. On July 15, 1970, the All India Services Confidential Character Rolls Rules, 1970, came into force. The same replaced the directions contained in the circular referred to hereinbefore. The said rules were framed u/s 3 of the All India Services Act, 1951. The relevant provisions of the said rules are Rules 8 to 10 which are as follows:

Communication of adverse remarks--

(1) Where confidential report contains an adverse remark or a critical remark or a remark which indicate a significant fall in the standard of performance of a member of the service as compared to his past performance it shall be communicated to him, together with a substance of the entire confidential report, by the Government of the reviewing authority, as may be specified by the Govt. within three months of the receipt of the confidential report and a certificate to the effect shall be recorded in the confidential report.

(2) The question whether a particular remark recorded in the confidential report on a member of the service is an adverse remark or a critical remark or a remark which indicates a significant fall in the standard of performance of the member of the service or not, shall be decided by the Central Government or the Government of the State according as the member is serving in connection with the affairs of the Union or a State:

Provided that, in the event of any difference of opinion between the Central Government and the Government of State as to whether a particular remark is to be deemed an adverse remark or a critical remark or a remark which indicates a significant fall in the standard of performance of the member of the Service as compared to his past performance or not, the opinion of the Central Government shall prevail.

Representation against adverse remarks;

A member of the Service may represent to the Govt. against the remark communicated to him under Rule 8 within three months of the date of its receipt by him.

Provided that the Government may entertain a representation within one year of the expiry of the said period if it is satisfied that the member of the service had sufficient cause for not submitting the representation in time.

Consideration of representation against adverse remarks:

(1) The Government shall and if it considers necessary, in consultation with the reporting authority or the reviewing authority, consider the representation made under Rule 9 by a member of the service and pass orders as far as possible within three months of the date of submissions of the representation;

(a) rejecting the representation,

(b) toning down the remark, or

(c) expunging the remark.

Provided that where an order toning down or expunging the remark is passed, a copy of such order and if the order is passed beyond twelve months after the close of the financial year or calendar year, as the case may be to which the remark pertains, the reasons therefore, together with the certified true copies of the representation made and the remarks of the reporting authority and the reviewing authority, shall be endorsed to Central Government and the State Government according as the member of the service is serving in connection with the affairs of a State or whose cadre he is borne or the Union or a State to which he had been deputed;

Provided further that the aforesaid order shall be passed by an authority superior to the reviewing authority or and where the reporting authority or the reviewing authority is a Minister and the said order shall be passed by the Council of Ministers or such committee thereof as may be constituted in this behalf by the Government.

(2) The order so passed on the representation shall be final and the member of the service concerned shall be informed suitability.

On October 30, 1970, the Respondent No. 1 made a representation to the Home Secretary, Government of India, complaining about the prejudice, bias and vindictiveness on the part of D.G. Bhattacharjee and enclosing a copy of the representation dated May 14/15, 1970, to the Governor and praying for a copy of the adverse remarks if any against the Respondent No. 1 which the Respondent No. 1 was entitled to under the relevant rules. The Respondent No. 1 had contended in the said application that there was no response to the aforesaid representation. On or about June 10, 1971, the Respondent No. 1 made an application in the said Rule No. 6738(W) of 1969 to this Court for inspection of certain documents relating to adverse remarks in the confidential character roll of the Respondent No. 1 and others officers who had superseded the Respondent No. 1 along with the other documents mentioned in the said petition. On July 30, 1970 the State of West Bengal made an application in the said Rule No. 6738(W) for leave to start departmental proceedings against the Respondent No. 1.

P.K. Banerjee J. made an order observing that there was no interim order and as such there was no bar for the State of West Bengal to start departmental proceedings. Liberty, however, was given to the Respondent No. 1 to apply for interim order in respect of the departmental proceedings if necessary. On September 9, 1971 P.K. Banerjee J. passed an order in C.R. 6738(W) of 1969 to produce relevant documents and records for inspection by the Respondent No. 1 at the time of the hearing of the said Rule. On July (sic) 1971 the Respondent No. 1 was communicated adverse remarks against him from the year 1959 to 1969. In the said letter the Chief Secretary wrote, inter alia, as follows:

As the above contains some adverse remarks, this is being communicated to you so that you may endeavour to rectify the defects.

On September 22, 1971, the Review. Committee of the State of West Bengal consisting of the Chief Secretary, the Home Secretary and the Inspector-General of Police after reviewing the records of several officers and after examining the entries in the Confidential Character Roll of the Respondent No. 1 noted as follows:

His record is very poor. The last reports of the I.G. indicates that he is of no use to the administration. The previous report shows that there is no evidence of serious work nor intention on his part. The then I.G. also reported that the officer is of no use to the administration and ''should be retired prematurely''. In the report for the period ending 31st March, 1969, the I.G. had indicated that he was an ineffective and useless officer ''for whom it is difficult to find a posting''. The Review Committee feels that he should be forthwith retired now that he has completed 50 years.

On September 25, 1971, the Respondent No. 1 is alleged to have received the communication dated September 10, 1971, from the Chief Secretary, Government of West Bengal, informing the Respondent No. 1 that certain adverse remarks had been recorded in the said Respondent''s Confidential Character Roll and same contained some adverse remarks and the same were being communicated to the Respondent No. 1 to enable him to rectify the defects. On November 15, 1971, the Chief Secretary informed the Respondent No. 1 that the State Government intended to hold an enquiry against the Respondent No. 1 under Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969. The Respondent No. 1 thereafter received on December 1, 1971, the statement of imputation and the charges framed against the Respondent No. 1. On December 22, 1971, P.K. Banerjee J. on an application of the Respondent No. I in the said C.R. 6738 (W) of 1969 permitted the departmental proceedings to continue. On January 17, 1972, the Respondent No. 1 made a representation against the adverse entries. On February 23, 1972, the State of West Bengal rejected the representation of the Respondent No. 1 and on April 7, 1972, the Respondent No. 1 submitted his written statement of defence to the charges framed against him in the departmental proceedings. On April 20, 1972, the Government of West Bengal decided to drop the disciplinary proceedings against the Respondent No. 1. On June 14, 1972, the order was passed directing the compulsory retirement of the Respondent No. 1 as noted hereinbefore. The Respondent No. 1 thereafter moved an application under Article 226 of the Constitution and obtained a rule nisi. The rule came up for hearing before Anil Kumar Sen J. Before the learned Judge several contentions were urged. It was contended in the first place that the impugned order was really a penalty imposed, circumventing the disciplinary proceedings which were earlier initiated against the Respondent No. 1 only to prevent him from ventilating his own charges of malicious prosecution against the superior authorities. It was, secondly, contended that the order was mot bona fide having been made to frustrate the Respondent No. 1''s earlier litigation against illegal supersession which was still pending at that time. The learned Judge was unable to accept those contentions. Having regard to the facts and circumstances of this case we are in respectful agreement with the learned Judge on this point.

It was, then, contended that the order for compulsory retirement had been made on consideration of certain adverse entries in the Confidential Character Roll, which were mot recorded in accordance with the rules and of which the Respondent No. 1 was never given any appropriate notice to enable him to challenge the correctness or the bona fides thereof. It was claimed that there was no material for an order under Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. The learned Judge, on consideration of the matter, has accepted this contention of the Respondent No. 1 and has quashed the impugned order and has made the rule absolute. This appeal is directed against the aforesaid order and judgment of the learned Judge.

The facts leading to the making of the impugned order have been set out hereinbefore. In the affidavit on behalf of the State Government it was stated that the case of the Respondent No. 1 along with the other officers of the Indian Police Service who had attained the age of 50 were reviewed and on consideration of the Respondent No. 1''s record of service the Review Committee had (sic) the retirement of the Respondent No. 1. It was, further, stated that the State Government had considered the representation of the Respondent No. 1 regarding the adverse entries in the Confidential Character Roll made against him and the State Government did not think it necessary or proper to alter the said entries relating to the adverse remarks. On behalf of the Union of India it was stated that the case of the Respondent No. 1 was considered at the highest level by the authorities and the report of the Review Committee along with the entries in the Confidential Character Roll of the Respondent No. 1 were duly considered and after careful consideration of all material facts the Central Government independently formed its own opinion and came to the definite conclusion that the Respondent No. 1 should be retired under Rule 16(3) of the said rules. It is clear from the records and as the learned Judge has rightly noted that only the report of the Review Committee and the adverse entries in the Confidential Character Roll were considered by the Central Government in making the impugned order. The adverse entries in the Confidential Character Roll were produced before us and the same are the part of the record in this case. The adverse remarks indicate that the Respondent No. 1''s record of service was not inspiring and it was not desirable that the Respondent No. 1 should be retained in service beyond the age of 50. Most of these adverse remarks were made at the time when there was departmental circular regulating the making of the said adverse remarks. Some of these adverse remarks, however, were made at a time when the statutory rules referred to hereinbefore had come into effect. It has been noted that all the said adverse remarks from 1959 to 1969 were communicated to the Respondent No. 1 by letter dated September 10, 1971, which was received by the Respondent No. 1 on September 25, 1971. The recommendation of the Review Committee was made on September 22, 1971. As have been indicated in the circular as well as in the statutory rules regarding the making of the adverse entries that it is of utmost importance that the said adverse entries in the Confidential Character Roll should be communicated to the person concerned. The purpose of such a rule or requirement is twofold. Such communication gives the officer concerned an opportunity to rectify the defects as indicated by the adverse remarks and secondly, if there is any misstatement or incorrect statement in the said adverse entries they can be corrected or contradicted by the person concerned. The entries in the Confidential Character Roll, which were adverse to the Respondent No. 1 in this case, were admittedly not communicated to the Respondent No. 1 in accordance with the direction in the circular and/or in the statutory rules. The question is, whether in the absence of such communication the entries of such f adverse remarks cam be used as material for consideration of the question of the retirement of the Respondent No. 1.

In this background it is necessary to consider the nature of the order of compulsory retirement under the relevant rules. The Supreme Court had to consider this question under similar rule being fundamental Rule 56(j) in the case of Union of India (UOI) Vs. Col. J.N. Sinha and Another, and the Supreme Court observed that the rules stipulated with the appropriate authority had the absolute right to retire a government servant if it was of opinion that it was in the public interest to do so. The right conferred on the appropriate authority was an absolute one. That power could be exercised subject to the conditions mentioned in the rule, one of which was that the concerned authority must be of the opinion that it was in the public interest to pass the order. If that authority bona fide formed that opinion the correctness of that opinion could not be challenged before the Courts. It was, however, open to an aggrieved party to contend that the requisite opinion had not been formed or the decision was made on collateral grounds or that was an arbitrary decision. The rule was not intended for taking any penal action against the government servant. The rule merely embodied one of facts of ''pleasure doctrine'' embodied in Article 310 of the Constitution. The Government might feel that a particular post might be more usefully held in public interest by an officer more competent than the one who was holding it. It might be that the officer who was holding the post was not inefficient but the appropriate authority might prefer to have a more efficient officer. It might, further, be that in a certain key post public interest might require that a person of undoubted ability and integrity should be there. There was no denying the fact that in all organisations and more so in government organisations there was good deal of dead wood. It was in the public interest to chop off the same. The Supreme Court, further, observed that though the order of compulsory retirement is adverse to the government servant it is not a penal action. The order of compulsory retirement did not entail any civil consequences. It was, therefore, not necessary to follow the principles of natural justice in passing an order of compulsory retirement In the case of Tara Singh and Others Vs. State of Rajasthan and Others, the Supreme Court observed that the right to public employment was a right to hold it according to rules. The right was defeasible according to rules. The rules spoke of compulsory retirement. There was guidance in the rules as to when such retirement was to be made. The government servant in case of such an order does not lose the benefit which a government servant, had already earned. The orders of compulsory retirement are made in public interest. That is the safety valve of making such order so that no arbitrariness or bad faith creaps in. In the case of A.C. Bose v. Union of India 74 C.L.J. 8 this Court held that before an order for compulsory retirement can be made the appropriate authority must form the opinion that it was in the public interest to make the order. The opinion cannot be formed arbitrarily it cannot be based on collateral grounds. It must be dependent on some grounds or material germane to the issue of compulsory retirement and when an order for compulsory retirement is challenged in a court of law the court has the right to examine whether some grounds or materials germane to the issue exists although the court is not interested in the sufficiency of those materials. The position in law, therefore, is that the concerned authorities have absolute right to make an order for compulsory retirement of a government servant after he completes 30 years of qualifying service or attains 50 years of age. In passing such an order under the present rule the Central Government may act in consultation with the State Government. The right therefore is with the Central Government to make the order in public interest. The decision of the Central Government is subjective, but it must be for the objective purpose of public interest. There must be material for the government to come to the conclusion that public interest requires the Govt. servant to be retired. The sufficiency of materials is, however, not for adjudication by the Courts. When an order is made under Sub-rule (3) of Rule 16 of the present rules it entails no civil consequences. It is not a penal order and no question of natural justice arises in passing such an order. There must, however, be some material before the Central Government to indicate that the public interest requires the government servant to be compulsorily retired. Entries in the service records and the Confidential Character Roll and report or recommendation of the Review Committee of the State Government are certainly materials. But in the instant case, the Review Committee of the State Government had recommended the retirement of the t public servant on a review of the records in the Confidential Roll y of the Respondent No. 1. Such entries in the Confidential Character. Rolls which were adverse to the Respondent No. 1 were not communicated to the Respondent No. 1 as required under the relevant circular when that was prevalent and subsequently under the statutory rules. Undoubtedly, that is unfortunate and fortuitous. But the question is, whether such entries become non est in the eye of law or cease to be materials, relevant or germane to the question of retirement of a government servant in public interest. In the case of Prakash Chandra Sarma v. Oil and Natural Gas Commission 1970 S.L.R. 116 the Supreme Court had to consider the question whether promotion can be withheld on the basis of the confidential report containing adverse remarks not conveyed to an employee and no chance being given to him to represent against adverse remarks. The Supreme Court had observed that in that case there was no suggestion of any mala fide and furthermore, if the adverse remarks were there in the confidential reports it was the duty of the departmental Promotion Committee to take note of them and come to a decision on consideration of all these. The Supreme Court, further, observed that it was no part of a duty of a Promotion Committee to investigate about the confidential reports and Supreme Court, further, observed that the fact that these adverse remarks were not communicated to the employee was merely fortuitous and Ian that basis the recommendation of the Promotion Committee could not be or should not be so interfered with. It is true that the said decision dealt with the question of promotion and not with the question of retirement, but the ratio that follows from the Supreme Court decision is that such adverse remarks even if not communicated to the employee concerned do not become nonexistent materials for acting on the basis of such adverse remarks. In the case of B.L. Butail v. Union of India 1970 S.C.C. 876 the Supreme Court was considering an order passed under Rule 56(j) of Fundamental Rules which conferred on the appropriate authority an absolute right to retire a government servant on his attaining the age of 55 years if such authority was of the opinion that it was in the public interest to do so. The Supreme Court observed that, if that authority bona fide formed the opinion, the correctness of that opinion could not be challenged before the Court. The Supreme Court observed that a confidential report was intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, such reports were maintained for the purpose of serving as data of comparative merit when the question of promotion, confirmation etc. arose that such reports were not ordinarily to contain specific instances upon which assessments were made except in cases where as a result of any specific incident the censor or a warning was issued or when such warning was of an order to be kept in the personal file of the government servant. There was no need of giving any reasonable opportunity before making such adverse remarks. There the Supreme Court found that though adverse remarks were not originally communicated to the employee concerned when the promotion committee made recommendation these adverse remarks were, however, later on had been communicated and on receipt of such communication on representation by the employee concerned such remarks were net altered. Therefore, the Supreme Court was of the opinion that no injustice had resulted to the employee. In the instant case it is true that when the Review Committee of the State Government made the recommendation for retirement of the Respondent No. 1, the Respondent No. 1 had mot been communicated such adverse remarks in the Confidential Character Roll. But such remarks were later on communicated and the Respondent No. 1 had made a representation. But in spite of such representation the appropriate authority did not find it necessary to alter such entries in the Confidential Character Roll and had rejected such representation. The decision to retire the Respondent No. 1 by the Central Government was taken later when the Respondent No. 1 had already represented to the appropriate authority in the State Government against adverse remarks in the Confidential Character Roll and such representation had been rejected. In these circumstances, in our opinion, it cannot be said that the Central Government acted without any material or acted on materials which were not germane to the question of retirement of the government servant in public interest. In the aforesaid view of the matter it cannot be said that the impugned order was passed without any legal material relevant for the purpose of passing the order on the Respondent No. 1. Reliance was placed on a Bench decision of the Delhi High Court in the case of Malinathan Jain v. Municipal Corporation, the facts of that case were different from the facts in this case as mentioned before.

The Respondent No. 1 was communicated such adverse remarks at a very belated stage. He was intimated that the remarks were being communicated so that he might rectify his mistakes. That intimation was an empty formality and unfair. The learned trial Judge has so observed. We are in respectful agreement with that view of the learned trial Judge. But the non-compliance with the rules of communication in the circular or in the statutory rules or the unfairness on the part of the appropriate authority do not make the entries in the service recorded nonexistent materials as indicated in the last two judgments of the Supreme Court. It is also unfortunate that the Chief Secretary, who was a member of the said Review Committee and who had taken a decision to retire the Respondent No. 1, compulsorily was the appropriate authority to consider the representation of the Respondent No. 1 against such adverse remark after the Review Committee''s decision. Such procedure does not ensure fair play in considering representation against adverse remarks. But on this aspect also as there was no specific allegation of any mala fide on the part of the Chief Secretary, though there are allegations of mala fides against two of the superior officers who had made such adverse remarks, we cannot say that such adverse remarks became non-existent materials for consideration. It is unfortunate that executive authorities did not adhere or attempt to adhere to the very salutary principles enjoined in the statutory rule for ensuring justice within the administration. But in the view we have taken that there were materials relevant for the questions before the Central Government the challenge to the impugned order must fail.

In the aforesaid view of the matter the order and judgment of the learned trial Judge dated February 6, 1974, are hereby set aside and quashed. This appeal is allowed. The rule nisi is discharged. Interim order, if any, is vacated. There will be no order as to costs.

This order will not, however, prejudice the Respondent from withdrawing an amount equivalent to the pension.

M.M. Dutt, J.

I agree.