Union of India & Ors Vs. Shri Dulal Dutt
 INSC 65 (5
Dayal (J) Yogeshwar Dayal (J) Sharma, L.M. (Cj) Mohan, S. (J)
1993 SCR (1) 853 1993 SCC (2) 179 JT 1993 (3) 706 1993 SCALE (1)578
Rules-Rules 56(3) read with Rule 1802 (a) of the Railway Establishment Code,
Volume II, 1987 Edition- Compulsory retirement order-Whether to be a speaking
Services-Indian Railway Stores Service-Compulsory retirement-Whether to be a
Establishment Code : Volume II, 1987 Edition-Rule 1802 (a), read with Rule 56
(J) F.R.-Compulsory retirement order-Whether to be a speaking order.
12.6.1958, the respondent joined Indian Railway Stores Service as Class I
officer. He was promoted as District Controller of Stores in 1974, as
Additional Controller of Stores in 1980 and as Controller of Stores in 1982.
was served a major penalty charge-sheet dated 5.12.1989 on the charge of finalisation
of a tender case of 1983 and another major penalty charge-sheet dated 23.4.1990
on the charge of construction of a residential house during 1981-87 at high
order dated 24.4.1990, which was served on the respondent on 28.1.1991 the was
compulsory retired. The delay in the service of the order was due to the court
proceedings initiated against him.
challenged the order dated 24.4.1990 before the Central Administrative
Union of India submitted before the Tribunal that the right to retire a
Government servant prematurely was an absolute one and the only requirement was
that there should be the formation of an opinion; that in the present case, the
opinion was formed in public interest and the 854 requirement of the Rule was
strictly complied with.
tribunal allowed the application against which the Union of India filed the
present appeal by special leave.
the Appeal, this Court,
1.01. An order of a compulsory retirement is not an order of punishment. It is
actually a prerogative of the Government but it should be based on material and
has to be passed on the subjective satisfaction of the Government.
often, on enquiry by the Court the Government may disclose the material but it
is very much different from the saying that the order should be a speaking
order. No order of compulsory retirement is required to be a speaking order.
1.02. The Tribunal completely erred in assuming, in the circumstances of the
case, that there ought to have been a speaking order for compulsory retirement.
[860H] 1.03. From the very order of the Tribunal it is clear that the
Government had, before it, the report of the Review Committee yet it thought it
fit of compulsory retiring the respondent. The order cannot be called either mala
fide or arbitrary in law. [861C] Baikuntha Nath Das and another v. Chief
District Medical Officer, Baripada and another,  2 SCC 299; R.L. Butail
v. Union of India,  2 SCC 876 and Union of India v. J.M. Sinha, 1 2
SCC 458, referred to.
APPELLATE JURISDICTION : Civil Appeal No. 572 of 1993.
the Judgment and Order dated "29.5.92 of the Central Administrative
Tribunal, Calcutta Bench, in O.A No. 455 of 1991. V. R. Reddy, Additional
Solicitor General, Mrs. B. Sunita Rao and V.K. Verma for the Appellants. G.S. Chatterjee
for the Respondent.
Judgment of the Court was delivered by 855 YOGESHWAR DAYAL, J. Heard. Special
leave granted. With the consent of learned counsel for the parties the appeal
itself is being disposed of.
brief facts leading to this appeal are as below The respondent joined Indian
Railway Stores Service as Class I Officer on 12th June, 1953. He was promoted to the senior scale as District Controller
of Stores in 1974, as Additional Controller of Stores in 1980 and as Controller
of Stores in 1982.
relevant time the respondent was posted as Controller of Stores, Metro Railway,
Calcutta. A major penalty charge- sheet
dated 5th December,
1989 was served on the
respondent on the charge of finalisation of a tender case of 1983.
major penalty charge-sheet was served on the respondent on 23rd April, 1990 on the charge of construction of a
residential house at Salt Lake, Calcutta during 1981-87 at high cost.
respondent was issued the impugned order dated 24th April, 1990 by the Joint Secretary (E), Railway Board, on behalf of the
President, by which the respondent was compulsory retired. The said order could
be served on the respondent only on 28th January, 1991 in view of certain court
proceedings initiated by him. Feeling aggrieved by the aforesaid order of
compulsory retirement of the Railway Board the respondent preferred an
application under Section 19 of the Administrative Tribunal Act, 1985 before
the Central Administrative Tribunal, Calcutta. In the said application the respondent inter alia prayed for the
following reliefs:- "(a) an order directing the respondents to withdraw,
revoke and cancel the impugned order dated 24.4.90/29.1.91 issued by the
respondent No.2 and further directing the respondents to act in accordance with
an order commanding the respondents to forthwith send unto this Hon'ble
Tribunal the entire records of the case relating to the passing of the order
retiring the applicant from service under rule 1802 (a) including the impugned
order dated 24.4.90/29.1.91 for their examination and for quashing the same
upon such 856 examination for doing conscienable justice to the applicant.
order directing the respondents the continuance or retention of the applicant
in service till he attains the age of superannuation on 31st July, 1993 with all consequential
benefits." The appellants opposed the said application. It was stated on
behalf of the appellants before the Tribunal that in memorandum dated 20th
June, 1989 addressed to the respondent it was mentioned that the respondent had
disposed of the tender expeditiously, the lowest offer which was filed, could
have been availed of within the validity period offered by the firm and the
railway would not have been forced to accept a higher rate and it also
indicated lack of proper management of the purchase functions under the
respondent. The aforesaid lapses on the part of the respondent were brought to
the notice of the respondent so that he may be careful in future. Attention of
the Tribunal was also drawn by the department towards a statement showing
details of present and past vigilance cases involving the respondent. As
regards the present case, there was a list of six, three of which were stated
to be under investigation. These were regarding alleged favours shown to a firm
and possession of disproportionate assets to the tune of over Rs. two lakhs. In
the forth case, the CVS (Central Vigilance Commission) advised initiation of a
major penalty proceedings on 24th November, 1988. In the fifth case, CVS advised issue of recorded warning on 16th November, 1988. In the sixth case, CVS on
reconsideration advised closure on 28th February, 1989. It was submitted before the
Tribunal on behalf of the appellants herein that F.R. 56(J) and the
corresponding Railway Rule 1802 (a) of the Railway Establishment Code, Volume
II, 1987 Edition, under which the respondent was prematurely retired, are
identical. The right to retire a government servant prematurely is an absolute
one and only requirement is that there should be the formation of an opinion.
And in the present case, the opinion has been formed in public interest and the
requirement of the rule had been strictly complied with.
Central Administrative Tribunal by the impugned judgment dated 29th May, 1992 allowed the application of the
respondent holding that "the circumstances under which the impugned order
was 857 passed have been brought out at paras 33, 34 and 35 of this judgment.
It is abundantly clear from a perusal of these paragraphs that the high level
review committee headed by the Chairman, Railway Board, unanimously recommended
the retention of the applicant, firstly because his performance record had been
quite good and secondly, because there was no proven vigilance case leading to
punishment so far and the committee was of the opinion that the outcome of the
more serious cases now pending against him should be awaited. This decision
showed out application of mind by review Committee, which obviously felt that
the disciplinary proceedings started against the applicant from the vigilance
angle should first be concluded before any action was taken. The competent
authority did not agree with the recommendation of the review Committee for the
retention of the applicant.
certainly entitled to do so but in arriving at any contrary decision, he should
have recorded a speaking order indicating the reasons of his own opinion. In
the departmental file contains only a single sentence recorded by the competent
authority viz. 'he should be removed from service forthwith', we have no
hesitation in holding that the decision of the competent authority was
arbitrary and that it cannot be sustained.' It is against the judgment that the
present appeal has been filed.
mention that one of the departmental inquiries initiated vide Order No. E(0)1-89/PU-2/17
dated 11/12.10.90 has been concluded by the Commissioner for Departmental
Inquiries vide his report dated 16th October, 1992. In this case the charge against the respondent was that
'while functioning as Controller of Stores in Chittaranjan Locomotive Works,
Calcutta during the year 1983 committed gross misconduct by his following
actions which led to him showing favouritism to M/s. Bharat Traders, Calcutta
in the award of contracts for the procurement of Yellow Dextrine on tender No.
passed orders for acceptance of a late offer of M/s. Bharat Traders, treating
it as a single tender without obtaining prior approval of the General Manager;
Later he passed orders for awarding of contract to M/s. Bharat Traders without
formal Tender Committee's recommendations;
He waived off the Security Deposit payment by M/s. Bharat Traders without
obtaining finance's concurrence and for which the firm never requested;
He misused purchase powers by exercising option clause, resulting in purchase
of much higher quantity than what had been indented.
this aforesaid misconduct, Shri Dulal Dutt failed to maintain absolute
integrity and devotion to duty and thereby contravened Rule 3(1)(i) and (ii) of
the Railways Services (Conduct) Rules, 1966".
Commissioner for Departmental Inquiries while assessing the evidence in respect
of the allegations against the respondent split up the charge into four
ingredients as stated in paragraph 6.3 of the report. On ingredient No.1 the
Commissioner for Departmental Inquiries held "Keeping in view the totality
of evidence it is seen that the factual element in the ingredient No.1 of the
charge has been corroborated. But in the instant case in the context of
extremely critical situation and purchase of emergency nature, the CO's
arguments and course of action have mitigated the alleged gravity of the
charge. As the entire course of action specifically the adoption of second
round of negotiation to neutralise the Finance objection vide Ex.S.6 was within
the knowledge of AAO (S) vide Ex.S.7, no mala fides have been considered
established against the CO. It is true that in a normal situation acceptance of
revised offer after the rates are already known and the Tender Committee has
placed their final recommendation is not in order. The prosecution argument on
that score is quite acceptable. The prosecution further argued that the style
of noting by the CO on Ex.S.4 indicated that the CO initially approved the TC
proceedings. However, when subsequently Ex.S.5 was received the whole process
of split orders started. Moreover, instead of ordering second round of
negotiations the CO could have taken up with the GM personally for his approval
for the single tender to 859 avoid delay and tide over the emergency within the
shortest spell of time.
issue is the course of action to be taken in view of the revised late offer and
also the criticality of the stock position of the Yellow Dextrine. There may be
a number of ways to tackle the problem. The CO has opted for a course of action
an analysed earlier and evident on record. Since the entire issue was within
the knowledge of AAO (S) and the CO has made a detailed noting vide ExD.3 and
S.7, no mala fide motive was established as already observed earlier.' On,
ingredient No. 2 it was found as a fact that there was no formal Tender
ingredient No. 3 it was found that no specific mala fides were established.
ingredient No. 4 the Commissioner for Departmental Inquiries found that the
factual elements of some procedural shortcomings have been corroborated by the
end the finding given was that certain procedural shortcomings were
corroborated in the relevant documents; no mala fides against the CO or loss to
the Railways have been proved.
law on the subject of compulsory retirement as recently laid down by this Court
in the case of Baikuntha Nath Das and another v. Chief District Medical
Officer, Banpada and another,  2 SCC 299 was noticed by the Tribunal but
erroneously distinguished it. In the case of Baikuntha Nath aforesaid this
Court has exhaustively dealt with the entire case law on the subject and
observed :- "An order of compulsory retirement 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. 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 860 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. There may be any number of remarks, observations and
comments, which do not constitute adverse remarks, but are yet relevant for the
purpose of F.R. 56(j) or a rule corresponding to it.' The court also observed
"An order of compulsory retirement is not a punishment. It implies no
stigma nor any suggestion of misbehaviour. Principles of natural justice have
no place in the context of an order of compulsory retirement. Since the nature
of the function is not quasi- judicial in nature and because the action has to
be taken on the subjective satisfaction of the government, there is no room for
importing the and alteram partem rule of the natural justice in such a case.'
It was further observed by this Court that :
this does not mean that judicial scrutiny is excluded altogether. While the
High Court or the Supreme 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. The remedy provided
by Article 226 is no less an important safeguard.
with its well known constraints, the remedy is an effective check against malafide
perverse or arbitrary action" It will be noticed that the Tribunal
completely erred in assuming in the circumstances of the case, that there ought
to have been a some order for compulsory retirement. This Court has been
repeatedly emphassing right from the case of R-L Butail v. Union of India,
 2 SCL 876 and Union of India v. J.N. Sinha  2 SCC 458 that an
order of 861 compulsory retirement is not an order of punishment. It is
actually a prerogative of the Government but it should be based on material and
has to be passed on the subjective satisfaction of the Government. Very often,
on enquiry by the Court the Government may disclose the material but it is very
much different from the saying that the order should be a speaking order. No
order of compulsory retirement is required to be a speaking order. From the
very order of the Tribunal it is clear that the Government had, before it, the
report of the Review Committee yet it thought it fit of compulsory retiring the
respondent. The order cannot be called either mala fide or arbitrary in law.
thus constrained to allow this appeal with costs and set aside the impugned
order of the Tribunal dated 29th May, 1992
and dismiss the application of the respondent filed before the Tribunal against
the impugned order of compulsory retirement of the respondent.