M RAVIKUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner worked in the NCC Directorate, A.P., Secunderabad as UDC and subsequently he was transferred to AMC Centre, Hyderabad in 1964. He went to Bombay in 1967 and came back on transfer to NCC Directorate, Secunderabad during the year 1990. He was transferred to Bhubaneshwar in December, 1990. He had some personal difficulties. Therefore he requested for his transfer to Hyderabad and on such transfer he joined at Secunderabad in February, 1992. Till his retirement he was posted in Secunderabad. According to the petitioner, he was compulsorily retired under Rule 48 of the CCS Rules, 1972 and Rule 56 (j) of the Fundamental Rules by an order dated 18-8-94. He was relieved from the post on 31-8-1994. Aggrieved by the order he filed O.A.No. 1212/94 before the Central Administrative Tribunal, Hyderabad. On 14-3-95 the said O.A. was disposed of by the Tribunal directing the respondents to dispose of the representation dated 15-9-94 after considering the same. The Representation Committee rejected the representation of the petitioner and a communication was sent to him by 1st respondent vide order dated 17-5-95. Aggrieved by the order of rejection of representation the petitioner filed another O.A. being O.A.No. 728/95 before the Central Administrative Tribunal, Hyderabad. On 18-2-98 the Tribunal dismissed the O.A. on the ground that there were no merits. The main contention, which was raised before the Tribunal and before this Court, was that the decision to compulsorily retire the petitioner was without any basis. It was also contended that the grounds taken by him in his representation were not considered by the Representation Committee. It was also contended that the decision to retire the petitioner compulsorily appears to have been based on confidential reports which were never communicated to the petitioner.

(2.) The respondents have filed their counter in which they stated that the representation made by the petitioner on 15th September, 1994 was not considered earlier as the matter was pending before the Tribunal but after the Tribunal disposed of O.A.No. 1212/94 and directed the respondents to dispose of the representation, the representation was considered by the Representation Committee and the same was rejected on the following grounds: (a) That the performance of Shri M. Ravi Kumar had not been satisfactory as reflected by consistent adverse remarks/ comments in his Annual Confidential Reports/record of service; (b) that the grounds advanced in his representation are neither justified nor bear relevance to the decision to retire him prematurely.

(3.) Now, the main contentions raised by the petitioner before the Tribunal and this Court are that the order retiring him prematurely was arbitrary inasmuch as the adverse entries which were recorded against him had been taken into consideration although they were never communicated to him. The second argument made was that, although the punishment had been given to him of withholding of increments but subsequently the increments were released therefore that punishment could not be the cause for retiring him prematurely. In reply, the respondents submitted that whether an adverse entry is communicated or not would not be the deciding point in coming to a conclusion whether an order of compulsory retirement was valid because it is settled law that all entries communicated or uncommunicated must be taken into consideration while deciding the matter of continuance of an employee. In this case reliance is placed by the respondents on the judgment of the Supreme Court reported in Baikuntha Nath Das v. Chief District Medical Officer, Baripada. In this judgment the Supreme Court considered the effect of some of the earlier judgments which had laid down that the uncommunicated adverse entries could hot be taken into consideration while ordering compulsory retirement. It also considered some of the judgments which were contrary to the view expressed that adverse entries could be taken into consideration. This judgment was by three-Judge Bench. It dissented from two earlier Division Bench judgments wherein it was held that, to order compulsory retirement on the basis of uncommunicated adverse entries in the official record was unfair and contrary to the principles of natural justice. This view was expressed in Brij Mohan Singh Chopra v. State of Punjab (AIR 1987 SC 948) and Baidyanath Mahapatra v. State of Orissa (1989 (4) SCC 664). The three Judge Bench (supra) held that an order of compulsory retirement does not constitute any punishment or involve any stigma; therefore it need not comply with the principles of natural justice. This three- Judge Bench, after evaluating the earlier judgments on the subject and the arguments made at the Bar, laid down the following principles; (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is 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 a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated averse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. In the context of these principles we are of the view that the respondents were within their rights to consider the whole of the record of the petitioner while taking a decision with regard to his retirement. It is revealed that during his tenure in the department he had been warned orally and in writing several times. He had been awarded formal punishment thrice under CCS (CCA) Rules, 1965. But, the learned counsel for the petitioner submits that during the year 1991 the question relating to crossing of efficiency bar of the petitioner arose and it was denied to him. But later on he was allowed to cross efficiency bar. According to the respondents it was denied to him twice as he did not have the requisite efficiency but according to the petitioner he could not cross the efficiency bar because at that time his request for transfer from Bhubaneswar was pending and when he came to Secunderabad on transfer he was allowed to cross the efficiency bar and increments were awarded to him. According to the petitioner, from 1992 to 1994 his ACRs were good.