GAUTAM GHOSH Vs. UNION OF INDIA & ORS.

JUDGEMENT

(1.) The power conferred on Government to retire officials in the public interest prior to the date of their attaining the normal age of superannuation -loosely referred to as 'compulsory retirement' by Rule 56(j) of the Fundamental Rules ('FR 56(j)' for short) -earlier by regulation 465 -A of the Civil Services Regulations -and by Rule 48 of the Central Civil Services (Pension) Rules ('Pension Rules') has been held to be constitutional in a long line of decisions rendered by the Supreme Court starting from as early as in 1954 [Shyam Lal v/s. State of Uttar Pradesh ( : AIR 1954 SC 369)]. Despite widely varying views on its effect on the morale of the public service voiced in judgments handed down from time to time ranging from it's characterisation as "a salutary safeguard....for maintenance of service in trim and fitness" in State of Uttar Pradesh v/s. Chandra Mohan Nigam & Ors. (1977 SLJ 633) to an emphatic statement of its "deleterious latency" and "unwritting harm to public interest" in Baldev Raj Chadha v/s. Union of India, : (1981) 4 SCC 1, compulsory retirement has come to stay. In an earlier case, where a Government servant was sought to be retired from service very early in his career, the Supreme Court struck down the action but it is now settled law that if, after having served for a reasonable period, a Government servant is retired in public interest, such retirement does not offend any Article of the Constitution. On the other hand, as pointed out in Union of India v/s. J. N. Sinha ( : AIR 1971 SC 40), the power conferred on the Government to retire its servants prior to their attaining the normal age of superannuation represents a facet of the doctrine of pleasure embodied in Article 310 of the Constitution. FR 56(j) as well as Rule 48 of the Pension Rules provide for compulsory retirement of a Government servant in the public interest after he has rendered service for a reasonable period. In this, context, referring to FR 56(j), the Supreme Court held in Sinha's case that it "holds the balance between the rights of the individual Government servants and the interest of the public" and is, therefore, fair to both.

(2.) What is the objective behind compulsory retirement ? According to the judgment in Sinha's case it is to chop off dead wood. It was observed in Union of India v/s. M. E. Reddy & Anr., : (1980) 1 SCR 736 that the object of compulsory retirement is "to weed out the dead wood in order to maintain a high standard of efficiency and initiative in service". In Baldev Raj Chadha's case, the matter was put a little more graphically in the following words :

(3.) It has been held in several cases that compulsory or premature retirement of a Government servant does not attract Article 311(2) of the Constitution even though misconduct or inefficiency may have weighed with the Government in ordering compulsory retirement. Since the rights acquired by a Government servant prior to such retirement are not taken away, compulsory retirement under FR 56(j) -equally under Rule 48 of the Pension Rules -involves no civil consequences and would not constitute penal action against him attracting the provisions of Article 311 (2). Nor does a simple order of compulsory retirement stating that it was being made in the public interest cast any stigma on the Government servant so retired. It has how ever been clarified in some cases that this is not an invariable rule and an innocuous order of compulsory retirement might be a cloak for what in reality is a punitive action casting a stigma on the official sought to be retired; in such cases, the real nature of the action has to be determined with reference to the attendant circumstances by examining the relevant government records. Merely because a government servant is retired during the pendency of disciplinary proceedings against him, it cannot be said that such retirement is punitive in character attaching a stigma to his name unless the misconduct involved in those proceedings is itself the foundation for retiring him. Generalising this proposition, if misconduct -whether it is the subject. of disciplinary proceedings or not and if the former, the charge is held proved in those proceedings is the foundation for an order of compulsory retirement, such retirement would constitute punishment attracting Article 311(2) but not if it was merely a factor considered for determining which way the public interest lay in the particular case. Before action is taken for compulsorily retiring a Government servant in the public interest either under FR 56(j) or under Rule 48 of the Pension Rules, it is not necessary to give him an opportunity of being heard nor is the competent authority required to write a speaking order while doing so under those provisions. The principles of natural justice stand excluded for the purpose of FR 56(j) and Rule 48 of the Pension Rules (Sinha's case supra).