State
of Orissa & Ors Vs. Ram Chandra Das
[1996] INSC 686 (8 May
1996)
Ramaswamy,
K. Ramaswamy, K. Faizan Uddin (J) G.B. Pattanaik (J)
CITATION:
1996 SCALE (5)14
ACT:
HEAD NOTE:
O R D
E R
Leave
granted
We
have heard learned counsel on both sides.
This
appeal by special arises from the judgment and order passed by the Orissa
Administrative Tribunal in O.A.No.340/87 on July 18, 1992. The respondent while
working as Assistant Conservator of Forests was compulsorily retired from
service by proceedings dated August 1, 1983
which came to be challenged by the respondent in the above proceedings.
The
Tribunal allowed the application on three grounds :
(1) the
respondent was allowed to cross the efficiency bar;
(ii) since
he was promoted, alter the adverse remarks were made, the records were wiped
out; and
(iii) the
entire record and overall consideration thereof was not done and, therefore,
the exercise of the power of compulsory retirement under Section 71(a) was not
valid in law. The question is: whether the view taken by the Tribunal is
correct in law? It is needless to reiterate that the settled legal position is
that the Government is empowered and would be entitled to compulsorily retire a
Government servant in public interest with a view to improve efficiency of the
administration or to weed out the people of doubtful integrity or corrupt but
sufficient evidence was not available to take disciplinary action in accordance
with the rules so as to inculcate a sense of discipline in the service. But the
Government, before taking such decision to retire a Government employee
compulsorily from service, have to consider the entire record of the Government
servant including the latest reports.
Rule
71(a) of the Orissa Service Code empowers the Government to do the needful and
reads as under:
"Rule-71(a)
- Except as otherwise provided in the other clauses of this rule the date of
compulsory retirement of a Government Servant, except a Ministerial servant who
was in Government service on the 31st March, 1939 and class IV Government
servant, is the date on which he or she attains the age of 50 years subject to
the condition that a review shall be conducted in respect of the Government
servant in the 55th year off age in order to remain in service up to the date
of the completion of the age of 50 years or retired on completing the of 55
years in public interest." A reading thereof would indicate that the
Government has been empowered, in the public interest, to compulsorily retire a
Government servant on his attaining the age of 50 years or on completion of 55
years by review of the service record.
It is
seen that though the respondent has contended that neither the entire record of
service was placed before the Review Committee, nor the Committee had gone
into, nor had the advantage of it, and it Considered only the adverse remarks
for the years 1980-81 and 1981-82 in the rejoinder affidavit filed in this
Court, it was specifically stated that file entire record of service from
1964-65 to 1981-82 and also the pending proceedings in the departmental enquiry
against the respondent were placed before the Review Committee and the same
were duly Considered by it. It is also seen that when the case was argued
before the Tribunal, the copy of proceedings and report of the Review Committee
and record was produced. The Tribunal had also noted in para 5 of the order
thus:
"Learned
Government Advocate produced before us a copy of the proceedings of the Review
Committee meeting held on 8.6.83. On perusal of the same, we find that the Committee
perused the C.C.Rs., entries of the applicant and took consideration the
allegation against him in the departmental proceedings on Charges or misuse of
powers, suppression of facts etc.
which
were pending enquiry before the Administrative Tribunal on the basis of the
aforesaid materials, the Committee felt that continuance of the applicant in
Government service would not be in public interest and therefore they
recommended that he should be prematurely retired." It is Contended for
the respondent that adverse entries for the two years referred to earlier and
pending departmental proceedings would not be sufficient to compulsorily retire
the Government servant on the premise that after promotion they would become
irrelevant and minor penalty was imposed. it is true that the Government
servant was allowed to cross the efficiency bar to enable him to avail the
benefits to draw higher scale of pay after crossing the efficiency bar. The
adverse remarks made are after promotion. Even otherwise, the remarks tore part
of service record and character role. The record of enquiry on conduct also
would be material. Though minor penalty may be imposed on given facts and
circumstances to act of misconduct, never the less remains part of the record
for overall consideration to retire a Government servant compulsorily. The
object always is public interest. The material question is: whether the entire
record of service was considered or not? It is not for the court/tribunal to
see whether the decision of the Government to compulsorily retire the
Government servant is justified or not. It for the Government to consider the
same and take a proper decision in that behalf. As stated earlier, it is
settled law that the Government is required to consider the entire record of
service. Merely because a promotion has been given even after adverse entries
mere made, cannot be a ground to note that compulsorily retirement of the
Government servant could not be ordered. The evidence does not become
inadmissible or irrelevant as opined by the Tribunal. What would be relevant is
whether upon that state of record as a reasonable prudent man would the
Government or competent officer reach that decision. We find that self-same
material after promotion may not be taken into consideration only to deny him
further promotion, if any. But that material undoubtedly would be available to
the Government to consider the overall expediency or necessity to continue the
Government servant in service afterhe attained the required length of service
or qualified period of service for pension. It is also made clear that in this
case adverse entries were made only after promotion and not earlier to
promotion. Compulsory retirement is not a punishment. He is entitled to all the
pensionary benefits.
Under
these circumstances, we are of the Considered view that the Tribunal was wholly
unjustified in interfering with the decision to retire the respondent
compulsorily from service on the aforesaid grounds.
The
appeal is accordingly allowed but, in the circumstances, without Costs.
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