“In view of the above, the law can be summarised to state that
in case there is a conflict between two or more judgments of
this Court, the judgment of the larger Bench is to be followed.
More so, the washed off theory does not have universal
application. It may have relevance while considering the case of
government servant for further promotion but not in a case
where the employee is being assessed by the Reviewing
Authority to determine whether he is fit to be retained in service
or requires to be given compulsory retirement, as the
Committee is to assess his suitability taking into consideration
his "entire service record".
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8245/2013
(Arising out of Special Leave Petition (Civil) No. 17760 OF 2013)
Rajasthan State Road Transport Corp. & Ors.
V
Babu Lal Jangir
2. Rajasthan State Road Transport Corporation is the appellant in the
instant petition through of which it impugns the validity of the orders dated
16.1.2013 passed by Division Bench of the High Court of Judicature For
Rajasthan, Bench at Jaipur. The Division Bench has dismissed the Writ
Appeal of the appellant and confirmed the orders of the Additional Judge
passed in the Writ Petition filed by the respondent herein, quashing the
orders of compulsory retirement of the respondent with the direction that the
respondent would be deemed to be in the service as if the order of
compulsory retirement had not been passed and as a consequence the
respondent is held entitled to all consequential benefits.
3.
The Respondent joined the services of the appellant on the post of
Driver on 14.2.1977. He was placed on probation for a period of one year.
4.
The appellant has framed Standing Orders for its employees known as
the Rajasthan State Road Transport Workers and workshop Employees
Standing Orders, 1965 (hereinafter to be referred as the ‘Standing Orders’).
These orders are duly certified by the Authority under the provisions of
Industrial Employment (Standing Orders) Act, 1946. Subsequently, there
was an amendment in these Standing Orders and certain new clauses under
rule 18, were inserted introducing the provision of compulsory and voluntary
retirement. The same are reproduced herein below:
“18-D(1)
COMPULSORY RETIREMENT
Notwithstanding anything contained in the regulations
the Corporation may if is of the opinion that it is in the interest
of the Corporation to do so, have the absolute right to retire any
Corporation employee after, he has attained the age of 50 years
or on the date he completes 25 years of service whichever is
earlier, or on any date thereafter, by giving him 3 months notice
in writing or three months pay and allowances in lieu thereof.
VOLUNTARY RETIREMENT
Notwithstanding anything contained here in before
Corporation employee may after giving three months previous
notice in writing, retire from the service on the date on which
he completes 20 years service on the date he attains the age of
45 years or on any other date thereafter.”
5.
It is clear from the above that the clauses pertaining to compulsory
retirement gives the Petitioner-Corporation absolute right to retire any
employee after he attains the age of 50 years or on completion of 25 years
service whichever is earlier.
6.
A Screening Committee was constituted by the Petitioner Corporation
in 27.3.2002 to look into the conduct and continuance of four employees
who had attained the age of 50 years or had completed 25 years of service.
Among these four persons, name of the Respondent also appeared.
7.
This committee, on perusal of the record of the respondent,
recommended his compulsory retirement. The Review Committee held its
meeting on 8.4.2002 to review the report of the Screening Committee and
after perusal of the report of the Screening Committee, the Review
Committee approved the proposal of the Screening Committee.
Based on
the recommendation of the Review Committee, the Competent Authority
passed the orders dated 9.4.2002, compulsorily retiring the respondent from
service. As three months previous notice is required under rule 18-D (1) of
the Standing Orders, in lieu thereof the respondent was sent three months’
salary cheque.
8.
Challenging this action of the appellant, the respondent filed the Writ
Petition in the High Court of Judicature for Rajasthan. The appellant herein
(Respondent in the Writ Petition) appeared and decided a Writ Petition by
filing counter affidavit. It was the highlight of the petitioner’s defense that
the service record of the respondent showed a dismal picture, in as much as
between the year 1978-1990, nearly 19 cases of misconduct were foisted
upon the respondent which resulted into some or the other kind of penalty
like admonition or stoppage of pay or annual grade increment for a limited
period. So much so, in the year 1992 a criminal case against the respondent
was initiated under Section 279 read with Section 304 (a) of IPC and Section
18/118 of the Motor Vehicles Act. In that case he was given the benefit of
doubt and released. However, a departmental inquiry was held in which
penalty of imposition or stoppage of two years’ increment was imposed
upon him. A representation against this penalty was also dismissed. In the
year 1999 another criminal case was instituted against the Respondent
because of the accident of the bus of the petitioner which was driven by the
Respondent as Driver. The victims had also filed their claim before the
Motor Claim Tribunal (MACT) and the Appellant -Corporation had to suffer
heavy loss by paying compensation in the said case. However, in criminal
case, the Respondent was acquitted.
The appellant also pointed out that the
service record of the Respondent revealed that he was also involved in the
another accident in the year 1999 in which he suffered serious burn injuries.
Because of this, he had moved an application requesting the Petitioner-
Corporation to give him light job. Accordingly, he was posted as staff car
Driver at Head Office. This job was given to him virtually showing mercy,
which did not entail regular hard work. It was thus, argued by the Appellant
-Corporation that the aforesaid entire service record was gone into by the
Screening Committee as well as the Review Committee on the basis of
which the decision was taken to retire the Respondent prematurely.
9.
The learned Single Judge of the High Court, however, did not eschew
the aforesaid submission of the Appellant -Corporation giving the reason
that the various acts of misconduct pointed out by the Petitioner-Corporation
against the Respondent herein pertained to the period between 1978-90,
whereas the order of compulsory retirement was passed 12 years thereafter
i.e. on 9.4.2002. In the opinion of the learned Single Judge, thee minor
misconducts of the period more than 12 years before the compulsory
retirement were not sufficient to come to the conclusion that the compulsory
retirement of the respondent was in public interest. The learned Single
Judge also observed that record of immediate past period was not looked
into at all and on the basis of current purpose it could not be said that
respondent had become deadwood or had become inefficient who needed to
be weeded out. It also It also remarked that the appellant corporation was
not able to point out any deficiency in the work and conduct of the
Respondent for over 10 years immediately preceding his compulsory
retirement. It was thus, unjust, unreasonable and arbitrary to retire the
respondent prematurely on the basis of old and stale material. For coming to
this conclusion the learned Single Judge drew sustenance from the judgment
of this Court in Brij Mohan Singh Chopra v. State of Punjab 1987 (2) SCC
188.
10.
Not satisfied with the aforesaid outcome, the appellant preferred Writ
Appeal before the Division Bench but without any success as the said Writ
Appeal
has
been
dismissed
by
the
Division
Bench,
echoing the reasons given by the ld. Single Judge. While upholding the order
of the learned Single Judge, the Division Bench also noted that the recorded
date of birth, at the time of entry of the Respondent into service, was
7.7.1951. Since the normal age of superannuation is 60 years, the respondent
would have continued in service till the year 2011. Since he was prematurely
retired and that retirement has been set aside with the direction that he deems
to be in service, the respondent would have to be treated in service till July,
2011. However, before the Division Bench, the respondent raised the dispute
about his date of birth contending that his actual date of birth was 21.1.1957
which was even recorded in some of the official documents.
He thus
pleaded that he had right to continue in service even beyond July 2011 i.e.
upto the end of January, 2017.
11.
The High Court, however refrained from passing any order on this
aspect and observed that it would be open to the respondent to submit a
proper presentation before the concerned authority of the Appellant
-Corporation who will examine the records of his date of birth and take a
decision thereon. It further directed:
“In case his date of birth is ultimately determined to be
7/7/1951, all consequential benefits following the interference
with the order of compulsory retirement would be released to
him. In the eventuality of his date of birth being determined to
be 21.9.1957, the Corporation would consider his reinstatement
in service.”
12.
On the very first day i.e. on 23.8.13, when this petition came up for
hearing, the respondent appeared person. He showed his willingness to argue
the matter himself finally at the admission stage itself. As this course of
action was agreeable to the Counsel for the petitioner as well, the parties
were heard at length.
13.
From the narration of facts stated above and specifically from the
perusal of the judgment of the learned Single Judge which is upheld by the
Division Bench on the same reasoning it is apparent clear that the main
reason for setting aside the order of compulsory retirement is that adverse
entries/ minor mis-conducts of the Respondent related to the period 1978-90
i.e 12 years prior to premature retirement were taken into consideration and
there was no material whatsoever before this Review Committee in the
recent past on the basis of which, the requisite opinion could be framed that
the premature retirement of the respondent was in public interest. Again, as
pointed above, for arriving at this conclusion, the High Court extensively
relied upon judgment of this Court in Brij Mohan Singh Chopra (supra).
14.
First and foremost argument of the learned Counsel for the appellant
was that judgment of this Court in Brij Mohan Singh Chopra (supra) was
overruled by three member Bench in Baikuntha Nath Das & Anr. v. Chief
District Medical Officer, Baripara & Anr.;1992 (2) SCC 299, and it was
specifically recorded so in subsequent judgment in the case of The State of
Punjab v. Gurdas Singh; 1998 (4) SCC 92. This calls for examination of
this argument in the first instance.
15.
A reading of Baikuntha Nath judgment would reveal that the main
issue in that case was as to whether the employer could act upon, un-
communicated adverse remarks and whether observance of the principles of
natural justice was necessary before taking a decision to compulsory retire a
government servant. The court answered both the questions in the negative
holding that it was permissible for the Government to even look into and
consider un-communicated adverse remarks. It was also held that since the
premature retirement was not stigmatic in nature and such an action was
based on subjective satisfaction of the Government, there was no room for
importing facet of natural justice in such a case. In the process of discussion
and giving reasons for the aforesaid opinion, the Court took note of various
judgments. Decision in the case of Brij Mohan Singh Chopra (supra) was
also specifically dealt with. In this case there were no adverse entries in the
confidential records of the appellant for a period of five years prior to the
impugned order of premature retirement. Within five years there were two
adverse entries. However, these adverse remarks were not communicated to
the employee. The order based on un-communicated adverse entries was set
aside on two grounds namely:
i) ii)
16.
It was not reasonable and just to consider adverse entries
of remote past and to ignore good entries of recent past.
If the entries for the period of more than 10 years past are
taken into account it would be act of digging out past to
get some material to make an order against the employee.
Since the adverse entries were not even communicated, it
was unjust and unfair and contrary to principles of
natural justice to retire prematurely a government
employee on the basis of adverse entries which are either
not communicated to him or if communicated,
representations made against those entries are not
considered and disposed of.
After taking note of the aforesaid grounds on which the order of
compulsory retirement in Brij Mohan Singh Chopra (supra) was set aside,
the Court in Baikuntha Nath Das (supra) dealt with the second ground alone
namely whether principles of natural justice were required to be followed or
it was permissible for the Government to take into consideration the adverse
entries which were either not communicated to him or if communicated
representations made against those entries were still pending. This second
proposition of Brij Mohan Singh Chopra was held as not the correct
proposition in law and principles of natural justice could not be brought in
such a case. The Court had noted that this reasoning was in conflict with the
earlier judgment in the case Union of India v. Col. J.N. Sinha & Anr. 1970
(II) LLJ 284 and agreed with the view taken in J.N. Sinha’s Case.
17.
It clearly follows from the above that in so far as first ground in Brij
Mohan Singh Chopra namely consideration of adverse entries of remote past
was inappropriate to compulsory retire an employee, was not touched or
discussed. In fact, on the facts of the Baikunth Nath Dass, this proposition
did not arise for consideration at all. No doubt, in Gurdas Singh’s Case, it
has been specifically remarked that the judgment in Brij Mohan Singh
Chopra (supra) has been overruled in Baikuntha Nath (supra). It would be
relevant to point out that even Gurdas Singh was a case relating to un-
communicated adverse entries.
Therefore, Brij Mohan Singh Chopra was
overruled only on the second proposition.
18.
The fact that the issue as to whether remote past of the employee can
be taken into consideration or not was not dealt with in Baikuntha Nath Das
or Gurdas Singh Case was specifically noticed by this Court in the case of
Badrinath v. Government of Tamil Nadu and Ors. 2000(8) SCC 395;
2000(6) SCALE 618. That was a case where this question of taking into
consideration the old records came up directly for discussion. The court
discussed the judgment in Brij Mohan Singh Chopra and pointed out that
three judge Bench in Baikuntha Nath Das overruled Brij Mohan Singh
Chopra Case only on the second aspect, namely non-communication of the
adverse reports. In so far as first aspect, which pertained to considering
adverse entries of old period, the Court also pointed out that in Para 32 of
Baikuntha Nath Das Case, various legal principles/propositions were
summed up and drew attention to principle No.(iv) in that para with which
we are concerned. It reads as under:
“So far as the appeals before us are concerned, the High Court
has looked into the relevant record and confidential records has
opined that the order of compulsory retirement was based not
merely upon the said adverse remarks but other material as
well. Secondly, it has also found that the material placed before
them does not justify the conclusion that the said remarks were
not recorded duly or properly. In the circumstances, it cannot be
said that the said remarks were not recorded duly or properly.
In the circumstances, it cannot be said that the order of
compulsory retirement suffers from mala fides or that it is
based on no evidence or that it is arbitrary.”
19.
On that basis following pertinent observations were made in
Badrinath case:
“54. We are however concerned with the first point stated in
Brij Mohan Singh Chopra's case as explained and
accepted in principle (iv) of para 34 of the three Judge
Judgment in Baikunth Nath Das. We have already
extracted this passage in principle (iv) of para 34. It
reaffirms that old adverse remarks are not to be dug out
and that adverse remarks made before an earlier selection
for promotion are to be treated as having lost their 'sting'.
This view of the three Judge Bench, in our view, has
since been not departed from. We shall, therefore, refer
to the two latter cases which have referred to this case in
Baikunth Nath Das. The second of these two latter cases
has also to be explained.
55.
In the first of these latter cases, namely, Union of India
v. V.R. Seth MANU/SC/0286/1994 : (1994)IILLJ411SC
the point related both to adverse remarks of a period
before an earlier promotion but also to uncommunicated
adverse remarks. It was held that the Tribunal was wrong
in holding in favour of the officer on the ground that
uncommunicated adverse remarks could not be relied
upon for purposes of compulsory retirement. So far as the
remarks prior to an earlier promotion this Court did not
hold that they could be given as much weight as those in
later years. The Court, in fact, relied upon Baikunth Nath
Das case decided by three Judge Bench which had
proposition (iv) in para 34 (at p. 315-316) had clearly
accepted that adverse remarks prior to an earlier
promotion lose their 'sting'.
56. The second case is the one in State of Punjab v. Gurdas
Singh MANU/SC/0256/1998 : AIR1998SC1661 . The
facts there were that there were adverse remarks from
1978 prior to 1984 when the officer was promoted and
there were also adverse remarks for the period 18.6.84 to
31.3.85. The compulsory retirement order was passed on
3.9.87. The said order was quashed by the Civil Court on
the ground that his record prior to his promotion i.e. prior
to 1984 could not have been considered and two adverse
entries after 1984 were not communicated and could not
be relied upon. The three Judge Bench, while clearly
setting out proposition (iv) in para 34 (at p. 315-316) of
Baikunth Nath Das which said that adverse remarks prior
to promotion lose their sting, held that they were
following the said judgment and they allowed the appeal
of the State. Following Baikunth Nath Das, the Bench
felt that uncommunicated adverse remarks could be
relied upon and in that case these entries related to the
period after an earlier promotion. That ground alone was
sufficient for the case. There is a further observation (at
p. 99, para 11) that an adverse entry prior to earning of
promotion or crossing of efficiency bar or picking up
higher rank is not wiped out and can be taken into
consideration while considering the overall performance
of the employee during the whole tenure of service.
57. The above sentence in Gurdas Singh needs to be
explained in the context of the Bench accepting the three
Judge Bench ruling in Baikunth Nath Das. Firstly, this
last observation in Gurdas Singh's case does not go
against the general principle laid down in Baikunth Nath
Das to the effect that though adverse remarks prior to an
earlier promotion can be taken into account, they would
have lost their 'sting'. Secondly, there is a special fact in
Gurdas Singh's case, namely, that the adverse remarks
prior to the earlier promotion related to his "dishonesty".
In a case relating to compulsory retirement therefore, the
sting in adverse remarks relating to dishonesty prior to an
earlier promotion cannot be said to be absolutely wiped
out. The fact also remains that in Gurdas Singh's case
there were other adverse remarks also even after the
earlier promotion, regarding dishonesty though they were
not communicated. We do not think that Gurdas Singh is
an authority to say that adverse remarks before a
promotion however remote could be given full weight in
all situations irrespective of whether they related to
dishonesty or otherwise. As pointed in the three Judge
Bench case in Baikunth Nath Das, which was followed in
Gurdas Singh they can be kept in mind but not given the
normal weight which could have otherwise been given to
them but their strength is substantially weakened unless
of course they related to dishonesty.”
20.
If one were to go by the dicta in Badrinath Case, obvious conclusion
would be that even if there are adverse remarks in the service career of an
employee they would lose there effect, when that employee is given
promotion to the higher post and would not be taken into account when the
case of that employee for compulsory retirement is taken up for
consideration, except only those adverse entries in the confidential reports of
that employee which touch upon his integrity. Thus, Badrinath case
interprets principle (iv) in para 32 of Baikunth Dass to mean such adverse
remarks for the period prior to promotion, unless they are related to
dishonesty, would be substantially weekend after the promotion.
21.
This interpretation given in Badrinath case, which was the judgment
rendered by two member Bench, has not been accepted by three member
bench of this Court, subsequently, in Pyare Mohan Lal v. State of Jharkhand
and Ors. (2010) 10 SCC 693.
After discussing various judgments,
including the judgments referred to by us hitherto, the Court clarified and
spelled out the circumstances in which the earlier adverse entries/ record
would be wiped of and the circumstances in which the said record, even of
remote past would not lose its significance. It is lucidly conceptualized
under the head “Washed Off Theory” as follows:
“WASHED OFF THEORY
“19. In
State
of
Punjab
v.
Dewan
Chuni
Lal MANU/SC/0497/1970 : AIR 1970 SC 2086, a two-
Judge Bench of this Court held that adverse entries
regarding the dishonesty and inefficiency of the government
employee in his ACRs have to be ignored if, subsequent to
recording of the same, he had been allowed to cross the
efficiency bar, as it would mean that while permitting him to
cross the efficiency bar such entries had been considered and
were not found of serious nature for the purpose of crossing
the efficiency bar.
20.
Similarly, a two-Judge Bench of this Court in Baidyanath
Mahapatra
v.
State
of
Orissa
and
Anr. MANU/SC/0051/1989 : AIR 1989 SC 2218, had taken
a similar view on the issue observing that adverse entries
awarded to the employee in the remote past lost significance
in view of the fact that he had subsequently been promoted
to the higher post, for the reason that while considering the
case for promotion he had been found to possess eligibility
and suitability and if such entry did not reflect deficiency in
his work and conduct for the purpose of promotion, it would
be difficult to comprehend how such an adverse entry could
be pressed into service for retiring him compulsorily. When
a government servant is promoted to higher post on the basis
of merit and selection, adverse entries if any contained in his
service record lose their significance and remain on record
as part of past history.
This view has been adopted by this Court in Baikuntha Nath
Das (supra).
21.
However, a three-Judge Bench of this Court in State of
Orissa
and
Ors.
v.
Ram
Chandra
Das MANU/SC/0613/1996 : AIR 1996 SC 2436, had taken
a different view as it had been held therein that such entries
still remain part of the record for overall consideration to
retire a government servant compulsorily. The object always
is public interest. Therefore, such entries do not lose
significance, even if the employee has subsequently been
promoted. The Court held as under:
Merely because a promotion has been given even after
adverse entries were made, cannot be a ground to note that
compulsory 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 selfsame 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 after he attained the required length of service or
qualified period of service for pension.
(Emphasis added)
22.
This judgment has been approved and followed by this
Court in State of Gujarat v. Umedbhai M.
Patel MANU/SC/0140/2001 : AIR 2001 SC 1109,
emphasising that the "entire record" of the government
servant is to be examined.
In Vijay Kumar Jain (supra), this Court held that the vigour
or sting of an entry does not get wiped out, particularly,
while considering the case of employee for giving him
compulsory retirement, as it requires the examination of the
entire service records, including character rolls and
confidential reports. `Vigour or sting of an adverse entry is
not wiped out' merely it relates to the remote past. There
may be a single adverse entry of integrity which may be
sufficient to compulsorily retire the government servant.”
Stating that the judgment of larger Bench would be binding, the
washed off theory is summed up by the Court in the following manner:
“In view of the above, the law can be summarised to state that
in case there is a conflict between two or more judgments of
this Court, the judgment of the larger Bench is to be followed.
More so, the washed off theory does not have universal
application. It may have relevance while considering the case of
government servant for further promotion but not in a case
where the employee is being assessed by the Reviewing
Authority to determine whether he is fit to be retained in service
or requires to be given compulsory retirement, as the
Committee is to assess his suitability taking into consideration
his "entire service record".
23.
It clearly follows from the above that the clarification given by two
Bench judgment in Badrinath is not correct and the observations of this
Court in Gurdas Singh to the effect that the adverse entries prior to the
promotion or crossing of efficiency bar or picking up higher rank are not
wiped off and can be taken into account while considering the overall
performance of the employee when it comes to the consideration of case of
that employee for premature retirement.
24.
The principle of law which is clarified and stands crystallized after the
judgment in Pyare Mohan Lal v. State of Jharkhand and Ors.; 2010 (10)
SCC 693 is that after the promotion of an employee the adverse entries prior
thereto would have no relevance and can be treated as wiped off when the
case of the government employee is to be considered for further promotion.
However, this ‘washed off theory’ will have no application when case of
an employee is being assessed to determine whether he is fit to be retained in
service or requires to be given compulsory retirement. The rationale given is
that since such an assessment is based on “entire service record”, there is no
question of not taking into consideration an earlier old adverse entries or
record of the old period. We may hasten to add that while such a record can
be taken into consideration, at the same time, the service record of the
immediate past period will have to be given due credence and weightage.
For example, as against some very old adverse entries where the immediate
past record shows exemplary performance, ignoring such a record of recent
past and acting only on the basis of old adverse entries, to retire a person
will be a clear example of arbitrary exercise of power. However, if old
record pertains to integrity of a person then that may be sufficient to justify
the order of premature retirement of the government servant.
25.
Having taken note of the correct principles which need to be applied,
we can safely conclude that the order of the High Court based solely on the
judgment in the case of Brij Mohan Singh Chopra was not correct. The High
Court could not have set aside the order merely on the ground that service
record pertaining to the period 1978-90 being old and stale could not be
taken into consideration at all. As per the law laid down in the aforesaid
judgments, it is clear that entire service record is relevant for deciding as to
whether the government servant needs to be eased out prematurely. Of
course, at the same time, subsequent record is also relevant, and immediate
past record, preceding the date on which decision is to be taken would be of
more value, qualitatively.
What is to be examined is the “overall
performance” on the basis of “entire service record” to come to the
conclusion as to whether the concerned employee has become a deadwood
and it is public interest to retire him compulsorily. The Authority must
consider and examine the overall effect of the entries of the officer
concerned and not an isolated entry, as it may well be in some cases that in
spite of satisfactory performance, the Authority may desire to compulsorily
retire an employee in public interest, as in the opinion of the said authority,
the post has to be manned by a more efficient and dynamic person and if
there is sufficient material on record to show that the employee “rendered
himself a liability to the institution”, there is no occasion for the Court to
interfere in the exercise of its limited power of judicial review.”
26.
With this we revert to the facts of the present case:
In so far as period of 1978-1990 is concerned, the respondent was
charge sheeted in 19 cases. In few cases he was exonerated and in some
other cases he was given minor penalty like admonition, stoppage of pay,
annual grade increment for a limited period. The gist of these cases is as
follows:
S.N
o.
Charge
Sheet
Date
Details of Charges
Date of Order
Details of decision
Remarks
1. 1648 11.8.1978 Negligent Driving 417/7-2-79 Exonerated
2. 798 25.10.79 Recovered Yearly increment
fare 2783/ stopped and
from forfeiture
15 27.8.84 of
passengers salary
without ticket for
suspension period
3. 2314 20.11.80 Corruption 3454/ Stoppage
22.10.84. of
yearly increment
for one year
4. 1235 27.4.83 Absent from duty 1708/ 7.4.86 Absolved
from
charges without
intimation
5. 1035 31.3.83 Excess 1709/ 3.4.86 Stoppage of one/
consumption two increments
6. 1754 13.6.84 Misbehavior with 3453/ Absolved
conductor charge
22.10.84.
7. 162 8.1.85 Absent from duty 5123/ Stoppage
without of
4.12.85 yearly increment
intimation for
one
year
without
commutative
effect
and
forfeiture of salar
for
suspension
period appeal No.
3588/
29.8.88
pending
8. 1798 4.4.85 Damage to tyre 9. 2298 29.4.85 Absent from duty 5123/4.12.19 Stoppage of one
without increment
85 &
intimation forfeiture
of
salary
for
suspension period
10. 3928 26.2.85 Vehicle accident Stoppage of two
increments
830/ 5.12.85
from
without
commutative
effect
11.
3763
1.8.90
Excess
consumption
Diesel
68/ 14.2.94 Order
for
recovery and or
warning for future
recovered
Rs.
132.60.
of
12. 3090 30.10.82 Different types of 13. 4669 30.10.85 Damage to tyre 11830/ Stoppage of two
complaints 5.12.88 increments
without
commutative
effect
and
forfeiture
of
salary for the
suspension
period.
14. 316 23.1.86 Bad behavior 4953/ 1. Stoppage of
12.10.87 one
increment.
Forfeiture
of
salary for the
suspension
period.
2. Less Diesel
average
15. 134 12.1.87 Demanding Stoppage of two
11830/ increments
money without
from 5.12.88 commulative
driver effect
under
consideration
16. 4745 1.11.85 17. 3361 13.7.97 Refusal to take 706/ 10.2.88 Absolved,
vehicle released
the
salary for the
suspension period
23
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C.A. No. /2013 @ SLP(C)No. 17760 of 2013
18.
19.
27.
2041
3792/
21.4.87
27.7.87
Negligent driving 2815/ 9.6.93 Absolved
of vehicle released
salary
suspension
period.
Less average of 2686/5.5.89 Recovered
Diesel 72/-
the
for
Rs.
The aforesaid record projects the dismal picture. The High Court has
observed that the respondents have not been able to show anything adverse
in the career of the respondent after 1990 i.e. in last 12 years preceding the
order of retirement. These observations are not correct in as much as:
(a) There was an inquiry against the respondent for which he was
imposed the penalty of stoppage of increment for two years. He
had made a representation against this penalty on 5.11.1998 which
was dismissed on 25.5.1998.
(b) Further another criminal case was also instituted against him in the
year 1999. Though outcome of this criminal case is not mentioned,
fact remains that the accident was caused by the Respondent while
driving the bus of the appellant Corporation, and the appellant
corporation had to pay heavy compensation to the victims as a
result of orders passed by MACT.
Thus even the service record after 1990 does not depict a rosy picture.
In any case, there is nothing to show his performance became better during
this period.
28.
It hardly needs to be emphasized that the order of compulsory
retirement is neither punitive nor stigmatic. It is based on subjective
satisfaction of the employer and a very limited scope of judicial review is
available in such cases. Interference is permissible only on the ground of non
application of mind, malafide, perverse, or arbitrary or if there is non-
compliance of statutory duty by the statutory authority. Power to retire
compulsorily, the government servant in terms of service rule is absolute,
provided the authority concerned forms a bonafide opinion that compulsory
retirement is in public interest.(See: AIR 1992 SC 1368)
29.
Accordingly, we have no option but to set aside the impugned order of
the High Court thereby upholding order of the compulsory retirement. The
appeal is allowed with no order as to costs.
....................................J.
[K.S. RADHAKRISHNAN]
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C.A. No. /2013 @ SLP(C)No. 17760 of 2013
...................................J.
[A.K. SIKRI]
NEW DELHI
SEPTEMBER 16, 2013
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