of Gujarat Vs. Umedbhai M. Patel  Insc
114 (27 February 2001)
S.R.Babu K.G. Balakrishnan, J.
Special Leave Petition (civil) 12652 of 2000
respondent, during the relevant time, was an Executive Engineer working in the Narmada
Development Department of the State of Gujarat. He was placed under suspension on 22.5.1986 pending disciplinary
enquiry was initiated against him alleging that he had committed acts of misuse
of power in connection with the purchase of Tarpauline. While the respondent
was continuing under suspension, the Govt. of Gujarat passed an order of
compulsory retirement by invoking Clause (aa) (i) (1) of Rule 161 (1) of the
Bombay Civil Services Rules, 1959, with effect from 13.2.1987. The respondent
was due to retire on superannuation by the end of August 1988, his date of
birth being 17.8.1930. In the order of compulsory retirement, it was stated
that the case relating to continuance of the respondent in Govt. service beyond
the age of 50 and 55 years was reviewed. The respondent challenged the order of
his compulsory retirement before the High Court of Gujarat and by the impugned
judgment, the Division Bench of the High Court set aside that order on the
ground that the same was punitive in nature and was passed with an oblique
purpose to punish the respondent for the charges which were neither
investigated nor had the respondent been given reasonable opportunity of hearing.
This judgment is challenged before us.
heard the learned counsel for the appellant-State as also learned counsel for
the respondent. Elaborate arguments were advanced by the counsel for the
appellant-State that the impugned order is not punitive in nature and that the
services of the respondent were dispensed with in public interest. It was
argued that the respondent's services were no longer useful and that he had
committed acts whereby the State Govt. suffered pecuniary losses. It was also
contended that the order of compulsory retirement passed by the State Govt. Is
not by way of punishment and the respondent is entitled to get all the
counsel for the respondent, on the other hand, supported the impugned judgment
and contended that the order of compulsory retirement was passed on the
specific allegations, for which the respondent was under suspension awaiting
formal enquiry, and under that circumstance, the impugned order of compulsory
retirement was patently illegal. Reliance was placed on various decisions of
Court, in a number of cases, had occasion to consider the law relating to
compulsory retirement and has laid down various principles. In State of Orissa
& Ors vs. Ram Chandra Das (1996) 5 SCC 331, this Court held in paragraph 3
of the judgment as follows :
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 are 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, has to consider the entire record of the government
servant including the latest reports.
supplied] In State of Gujarat & Anr. vs. Suryakant Chunilal
Shah (1999) 1 SCC 529, the State Govt. challenged the judgment of the Division
Bench of the Gujarat High Court by which the order passed by the Single Judged
was set aside.
Division Bench held that the order of compulsory retirement was bad and
thereupon the State of Gujarat filed an appeal. In that case, two
criminal complaints had been filed against the respondent-Asstt. Food
Controller; one alleging that he had illegally issued cement permits to some
bogus institutions; and second that he had fabricated some rubber stamps of the
Government for the purpose of issuing illegal permits. But, there were no
adverse entries in his confidential records and his integrity was not doubted
at any stage. However, the authorities thought that the investigation and
subsequent prosecution of the respondent would take long time and it would be
better to dispense with his services by compulsorily retiring him. The review
committee, therefore, recommended his compulsory retirement.
Court, in paragraph 28 of the judgment, held as under:
being no material before the Review Committee, inasmuch as there were no
adverse remarks in the character roll entries, the integrity was not doubted at
any time, the character roll entries subsequent to the respondent's promotion
to the post of Assistant Food Controller (Class II) were not available, it
could not come to the conclusion that the respondent was a man of doubtful
integrity nor could have anyone else come to the conclusion that the respondent
was a fit person to be retired compulsorily from service. The order, in the
circumstances of the case, was punitive having been passed for the collateral
purpose of his immediate removal rather than in public interest." In Baikuntha
Nath Das & Anr. vs. Chief District Medical Officer, Baripada & Anr.
(1992) 2 SCC 299, following the decision in Union of India vs. J.N. Sinha
(1970) 2 SCC 458, this Court held thus:
An order of compulsory retirement is not a punishment. It implies no stigma or
any suggestion of misbehaviour.
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.
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
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
it is based on no evidence or
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
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.
order of compulsory retirement is not liable to be quashed by a Court merely on
the showing that while passing it uncommunicated adverse remarks were also taken
into consideration. The circumstance by itself cannot be a basis for
In Allahabad Bank Officers' Association & Anr.
vs. Allahabad Bank & Ors. (1996) 4 SCC 504, this Court, in paragraph 5 of
the judgment on page 508, held as under:
power to compulsorily retire a government servant is one of the facets of the
doctrine of pleasure incorporated in Article 310 of the Constitution. The
object of compulsory retirement is to weed out the dead wood in order to
maintain efficiency and initiative in the service and also to dispense with the
services of those whose integrity is doubtful so as to preserve purity in the
administration. ....... .......
misconduct and inefficiency are factors that enter into the account where the
order is one of dismissal or removal or of retirement, there is this difference
that while in the case of retirement they merely furnish the background and the
enquiry, if held -- and there is no duty to hold an enquiry -- is only for the
satisfaction of the authorities who have to take action, in the case of
dismissal or removal they form the very basis on which the order is made, as
pointed out by this Court in Shyam Lal vs. State of U.P. [AIR 1954 SC
In Union of India & Ors. vs. Dulal Dutt (1993) 2 SCC 179,
this Court reiterated the view held right from the case of R.L. Butail vs.
Union of India (1970) 2 SCC 876 and Union of India vs. J.N. Sinha (1970) 2 SCC
458 "that 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. 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." In another decision in J.D. Srivastava vs. State of
M.P. & Ors. (1984) 2 SCC 8, in paragraph 7 of the judgment, it was observed
by this Court as under:
being reports relating to a remote period, they are not quite relevant for the
purpose of determining whether he should be retired compulsorily or not in the
year 1981, as it would be an act bordering on perversity to dig out old files
to find out some material to make an order against an officer." The law
relating to compulsory retirement has now crystallized into definite
principles, which could be broadly summarised thus:
Whenever the services of a public servant are no longer useful to the general
administration, the officer can be compulsorily retired for the sake of public
Ordinarily, the order of compulsory retirement is not to be treated as a
punishment coming under Article 311 of the Constitution.
For better administration, it is necessary to chop off dead- wood, but the
order of compulsory retirement can be passed after having due regard to the
entire service record of the officer.
Any adverse entries made in the confidential record shall be taken note of and be
given due weightage in passing such order.
Even uncommunicated entries in the confidential record can also be taken into
The order of compulsory retirement shall not be passed as a short cut to avoid
departmental enquiry when such course is more desirable.
If the officer was given a promotion despite adverse entries made in the
confidential record, that is a fact in favour of the officer.
Compulsory retirement shall not be imposed as a punitive measure.
instant case, there were absolutely no adverse entries in respondent's
confidential record. In the rejoinder filed in this Court also, nothing has
been averred that the respondent's service record revealed any adverse entries.
The respondent had successfully crossed the efficiency bar at the age of 50 as
well 55. He was placed under suspension on 22.5.1986 pending disciplinary
proceedings. The State Govt. had sufficient time to complete the enquiry
against him but the enquiry was not completed within a reasonable time. Even
the Review Committee did not recommend the compulsory retirement of the
respondent. The respondent had only less than two years to retire from service.
If the impugned order is viewed in the light of these facts, it could be said
that the order of compulsory retirement was passed for extraneous reasons. As
the authorities did not wait for the conclusion of the enquiry and decided to
dispense with the services of the respondent merely on the basis of the
allegations which had not been proved and in the absence of any adverse entries
in his service record to support the order of compulsory retirement, we are of
the view that the Division Bench was right in holding that the impugned order
was liable to be set aside. We find no merit in the appeal, which is dismissed
accordingly. However, three months' time is given to the appellant-State to
comply with the directions of the Division Bench, failing which the respondent
would be entitled to get interest at the rate of 18% for the delayed payment of
the pecuniary benefits due to him.