THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.2025 of 1997 Dated :22-09-2005 Between: P.Laxman. .. PETITIONER AND Salar Jung Musuem Board. and others. .. RESPONDENTS ORDER: Questioning the order of the second respondent, dated 31-01-1997, based on the resolution passed by the first respondent on 18-12-1996, to compulsorily retire the petitioner from service, under Regulation 13 of the Salar Jung Musuem Regulations read with FR 56(j), the present writ petition has been filed. Facts, to the extent necessary for this writ petition, are that the petitioner joined service in Salar Jung Museum (hereinafter referred to as “the Museum”) as an Assistant Photographer, pursuant to the office order, dated 17-07-1965. He was promoted as photographer in the year 1986. It is the case of the petitioner that one Sri Veerasharma, who was working under him as an Assistant Photographer, was not reliable and the petitioner had earlier requested the Director to shift the said Sri Veerasharma to another department. Accordingly, he was posted to Education Section. While so, on 30-09-1996, the petitioner is said to have fallen seriously ill and to have been admitted in the Hariprasad Memorial Hospital, Recobgunj, Hyderabad. He intimated officials of the Museum regarding his admission in the hospital which is a referral hospital for employees of the Museum. While the petitioner was undergoing treatment in the said hospital, he received memo dated 08-10-1996 calling upon him to handover the keys of his section to one Sri Bhaskar Rao immediately, to which, the petitioner sent a reply dated 09-10-1996 stating that there were many valuable equipments and negatives in the section and that he was sending the keys of his table, in which, the keys of Almirah etc., were available. On coming to know that the keys were sought to be handed over to Sri Veerasharma, the petitioner is said to have addressed a letter stating that the keys may not be given to him, as the petitioner apprehended that he may put the Museum to loss. Despite his request, the keys were handed over to Sri Veerasharma, which resulted in the petitioner addressing letter to higher officials, including the Chairman of the Museum, about this issue. The petitioner was relieved from hospital on 28-11-1996 and reported to duty on 30-11-1996. Since the keys of his section were not handed over to him, the petitioner is said to have approached the second respondent personally, reported the matter and sought for the keys to be handed over to him. Since the Director did not take any action, the petitioner is said to have reported the matter to the Chairman of the Museum Board on 13-12-1996. The petitioner alleges malice against the second respondent. The petitioner contends that since he had sought that the keys be handed over back to him, the second and third respondents bore grudge against him and had connived to have the petitioner compulsorily retired from service. It is contended that the very exercise of power, both under Regulation 13 and under FR 56(j), is for extraneous reasons to take revenge on the petitioner and is, therefore vitiated in law. It is stated that the petitioner had rendered unblemished service, that he did not receive any memos, muchless charge memos, that he was never inflicted with punishment and the entire action culminating in his compulsorily retirement from service was solely on the ground that he had insisted that the keys of the section not be handed over to Sri Veerasharma. Allegations of malice are also made against the second respondent, (made party eo nominee as third respondent), to the effect that ever since he became the Director of the Museum, he had been troubling sincere and hard working employees, and giving shelter to such employees who helped him in his illegal activities. The petitioner contends that the entire action, in compulsorily retiring him from service, was taken to cover up certain issues, which the petitioner sought to expose before the Expert Committee for physical verifications of Art and Objects, and since the committee was to carry out inspection on 05-02-1997, the second respondent wanted to avoid the presence of the petitioner, apprehending that he would be in trouble before the committee, and it was in such circumstances that the petitioner was compulsorily retired from service. Petitioner would contend that while the order of compulsorily retirement seems innocuous it is, in effect, founded on the aforesaid events and is in fact an order of punishment of termination from service. It is the case of the petitioner that the impugned order was passed without conducting any enquiry, and if, at all, the respondents intended to compulsorily retire the petitioner from service, they should have done so immediately on his completing the age of 55 years, and the very fact that he was permitted to continue in service thereafter till he reached the age of 56 years and that the said order was passed only after his request that Sri Veerasharma not be kept in charge of the section, establishes that the order was passed for extraneous reasons. The entire exercise of power is alleged to be malafide and a colourable exercise of power and not to be for genuine reasons. It is contended that no adverse remarks had been communicated to him and since the order was not preceded by any enquiry or a charge-sheet nor is it contended that he was a person of doubtful integrity, the order is vitiated on the grounds of violation of principles of natural justice, as being arbitrary and in violation of Articles 14 and 16 of the Constitution of India. Petitioner contends that the impugned order is malafide and was passed at the instance of the Director in view of the representations submitted by the petitioner against him to the Chairman of the Board. A counter affidavit is filed on behalf of the respondents, wherein, it is stated that the petitioner was compulsorily retired from service with effect from 31-01- 1997 (AN) on payment of three months pay with allowances in lieu of three months notice pursuant to the resolution of the Board of the Museum dated 18- 12-1996, wherein, the Board, after reviewing the functioning of the petitioner, considered it necessary and expedient to retire the petitioner, having regard to the efficient functioning of the Museum, and that the order passed was just, proper, valid and in accordance with law. While denying the various allegations including that of malice, it is stated that the petitioner was absent from duty without any intimation, while he was holding the responsible class-II post of photographer heading the section and it is only after he abstained from duty, did he send his leave application on 14-10-1996 seeking commuted leave without enclosing even a medical certificate in support thereof. The absence of the petitioner is said to have dislocated the work of the respondent Museum. Reference is also made to the letter addressed to the petitioner on 14-10-1996 to handover the keys of the section and that he was cautioned to be careful in his communications to his superiors, having regard to official decorum and discipline. It is further stated that the second respondent, by order dated 31-01- 1997, had merely implemented the resolution of the Board, dated 18-12-1996, to compulsorily retire the petitioner and that the said order of compulsorily retirement was not as a measure of punishment. The petitioner was compulsorily retired with effect from 31-01-1997, on the basis of the resolution, dated 18-12-1996, with special reference to the records of the later period of his service. Since the order dated 31-01-1997, to compulsorily retire the petitioner, was not a punishment, principles of natural justice was not attracted. The allegations of malice, colourable exercise of power and that the petitioner was singled out for this purpose, are denied. Sri M.Surendar Rao, learned counsel for the petitioner, would submit that the decision to compulsorily retire an employee from service, under Regulation 13 of the Regulations of the Museum, could only be in “public interest”. The resolution dated 18-12-1996, which is said to form the basis of the impugned order passed by the second respondent on 31-01-1997, was not even enclosed along with the said order nor does the impugned order disclose that the order of compulsorily retirement was passed in “public interest”. The petitioner’s endeavour, in highlighting various misdeeds of officials, was to protect the interest of the Museum and it is his action which was in public interest and not the order of compulsorily retirement passed by the respondents. Learned counsel would submit that un-communicated adverse remarks ought not to have been taken into consideration while passing the order of compulsorily retirement, that the action of the second respondent was tainted with malice, that it is not open to the respondents to take only a certain portion of the service records of the petitioner and while taking a decision, as to whether or not to retire an employee compulsorily in public interest, the entire service record is required to be taken into consideration. According to the learned counsel, a perusal of the counter affidavit would itself indicate the instances were those which took place just prior to the order of the compulsorily retirement being passed, which indicates that the entire service record of the petitioner had not been taken into consideration, while passing the impugned order of compulsorily retirement from service. Learned counsel would refer to GUR PRATAP SINGH v. STATE OF PUNJAB Smt.S.R.VENKATARAMAN v. UNION OF INDIA, BALDEV RAJ CHADHA v. UNION OF INDIA, THE STATE OF GUJARAT v. SURYAKANT CHUNILAL SHAH, RAJAT BARAN ROY v STATE OF WEST BENGAL, MADAN MOHAN CHOUDHARY v THE STATE OF BIHAR and SUKHDEO v . THE COMMISSIONER, AMRAVATI DIVISION, AMRAVATI, in this regard. Sri R.S.Murthy, learned Central Government Standing Counsel, on the other hand, would contend though the order passed by the second respondent and the Resolution of the first respondent do not contain the words “in public interest”, the fact, however, remains that the order was, indeed, passed in public interest, and that the impugned order dated 31-01-1997 refers to Regulation 13 of the Museum Regulations, which indicates that the order of compulsorily retirement was passed “in public interest”. Learned Standing Counsel would submit that the order passed, in the interest of the Museum, would certainly be an order passed in public interest. Since the order does not cast a stigma and is not as a measure of punishment, the question, of compliance with principles of natural justice or giving a charge-sheet to the petitioner or conducting an enquiry in this regard, does not arise. Learned Standing Counsel would place reliance on SRI BAIKUNTHA NATH DAS v CHIEF DISTRICT MEDICAL OFFICER, BARIPADA in this regard. Before examining the rival contentions, it is necessary to refer to the provisions of Salar Jung Museum Act (Act 26 of 61). Section 4 thereof, relates to establishment and incorporation of the Board and sub-section 2 provides that the Board shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire, hold and dispose of property and to contract, and to sue and be sued. The Board of the Museum is a statutory body under the Act and is composed of the members specified in Section 5. The ex-officio Chairman of the Board is the Governor of Andhra Pradesh; the Secretary to the Government of India in the Ministry concerned with matters relating to the Museum; the Mayor of the Corporation of Hyderabad; the Vice-Chancellor of the Osmania University; the Accountant- General, Andhra Pradesh; a person to be nominated by the Central Government, who shall be a member of the family of the late Nawab Salar Jung Bahadur; three persons to be nominated by the Central Government who shall as far as possible be persons having knowledge of, and experience in, matters relating to the administration of museums and libraries and two persons to be nominated by the State Government are the other members of the Board. Section 28 of Act 26 of 1961 confers powers on the Board, with the previous approval of the Central Government, by notification in the Official Gazette, to make regulations. The Salar Jung Museum Regulations, made in exercise of the powers conferred on the Board under Section 28 of Act 26 of 1961, are therefore, statutory in nature. Regulation 13 of the Salar Jung Museum Regulations relates to retirement and reads as under: “……. The age of retirement of the employees of the Board shall be @ 58 years except for the class IV employees who shall retire at the age of 60 years. Provided that there the Board is of the opinion that the employee is specifically qualified and it is in the interest of the museum to extend his services it may, for reasons to be recorded in writing, extend the services of such employee, by one year at a time for total period of two years. Where it appears necessary so to do, in the interest of the museum the Board may, with the previous approval of the Central Government, extend the services of an employee for such further period as it may deem necessary beyond the period of two years. Provided further that the Board may require an employee to retire after he attains the age of 55 years on three months’ notice without assigning any reason; the employee also may, after attaining the age of 55 years, voluntarily retire after giving three months notice to the Board. Provided also that the terms and conditions of service of any person shall not be altered to his disadvantage without the previous approval of the Central Government.” Reference, in this connection, may also be made to FR 56(j), which reads thus: (j) Notwithstanding, anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months’ pay and allowances in lieu of such notice; i. If he is, in Group ‘A’ or Group ‘B’ service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years. ii. In any other case after he has attained the age of fifty-five years: Provided that nothing in this clause shall apply to a Government servant referred to in clause (e), who entered Government Service on or before the 23rd July, 1966. (jj)(i) If on a review of the case either on a representation from the Government servant retired prematurely or otherwise, it is decided to reinstate the Government servant in service, the authority ordering reinstatement may regulate the intervening period between the date of premature retirement and the date of reinstatement by the grant of leave of the kind due and admissible, including extraordinary leave, or by treating it as dies non depending upon the facts and circumstances of the case: Provided that that the intervening period shall be treated as a period spent on duty for all purposes including pay and allowances, if it is specifically held by the authority ordering reinstatement that the premature retirement was itself not justified in the circumstances of the case, or, if the order of premature retirement is set aside by a Court of Law. (ii) Where the order of premature retirement is set aside by a Court of Law with specific directions in regard to regulation of the period between the date of premature retirement and the date of reinstatement and no further appeal is proposed to be filed, the aforesaid period shall be regulated in accordance with the directions of the court.” Sri R.S.Murthy, learned Central Standing Counsel, placed before me the entire service record of the petitioner. On a perusal thereof, I am not inclined to take any view contrary to the decision which was taken by the respondents. From the records placed, before this court by the learned Central Government Standing Counsel, it is seen that pursuant to a note put up by the Secretary of the Museum regarding the irregular functioning and absence from duty of the petitioner herein, the executive committee approved that the petitioner be retired from service, which recommendation was accepted by the Board of the Museum on 18-12-1996. The action of the Executive Board was noted by the Board in its meeting held on 18-12-1996. The impugned order, dated 31-01- 1997, was passed by the Secretary of the Museum, under Regulation 13 of Salar Jung Museum Regulations read with FR 56(j), pursuant to the resolution of the Board dated 18-12-1996. Consequent to the office order dated 31-01- 1997, the petitioner was retired from service with effect from 31-01-1997 on payment of three months salary in lieu of notice and his name was struck off from the rolls of the Museum. A detailed note, put up by the Secretary, which was approved by the Museum Board, refers to the fact that the petitioner was in the habit of avoiding the allotted work and habituated to sending petitions against his superior officers and that he did not keep good relations with his subordinates, that he caused serious dislocation of work in the section, that the Assistant Photographers were not given proper work and that the subordinate staff complained of his indecent behaviour. Reference is also made to the fact that the petitioner was often impressed to streamline the sectional work and assign work to the staff of the section, that for the past three years there was no improvement, that several warnings were issued to him vide letters, dated 20-08-1994, 10-06-1995, 29-10-1995 and 30-04-1996 and that the petitioner was in the habit of proceeding on leave without prior sanction and inspite of being a Sectional Head, making no arrangements to handover keys of the Section, resulting in sectional work often coming to a stand still. Instances of his absenteeism, without prior written application and without handing over of the section, are referred to in the said note. The petitioner is said to be in the habit of writing unwarranted remarks against his subordinates in their leave applications, that in recent months he continued to abuse his superiors and sectional heads and was engaged in making false allegations in writing to the Chairman, SJM Board, Members and higher officials of the Ministry. The note also refers to the fact that the petitioner had tampered with sectional registers recording adverse and baseless remarks against his subordinate staff in the section, that he addressed representations to the Chairman of the Board, (The Governor of Andhra Pradesh), on 10-10-1996, 14-10-1996, 23-10-1996 and 05- 11-1996, that during his long service from 1986, the petitioner had not even prepared a register of negatives and had failed to upkeep negatives, leaving this basic work of upkeep and maintenance of negatives to the subordinates, Adhoc G.A./Attender etc., and despite his being asked, by the Director on 12- 09-1993, to verify and enter in the register, and despite several reminders, the registering work of the photo-negatives (nearly 72,000/-) of the Museum objects remained incomplete for the past three years and the petitioner was avoiding this work on some pretext or other. The note refers to the petitioner’s indecent behaviour against his superiors as well as subordinates in the section as mainly aimed to avoid work, that photo-documentation and proper upkeep of negatives was a prime job, required to be systematic in keeping in mind the best interests and future of the Museum and unless, the petitioner was prematurely retired, the section could not be put back on rails. The note also refers to the fact that the work of the section is of urgent nature as computerization of objects had to be initiated with photo-index cards. On the principles governing compulsorily retirement from service under FR 56(j), the Supreme Court in BAIKUNTHA NATH DAS (8 supra), held : “…… The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) 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. (iii) 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 altogether. While 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 (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. (iv) 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. (v) An 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. That circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above. It is clear therefrom that an order, of compulsorily retirement, could be passed only if an opinion was formed that it was in the public interest to retire an employee compulsorily, that while the satisfaction required in this regard is subjective, it must be based on relevant material and not malafide. The scope of judicial scrutiny, in such matters, has been held, to be limited, that the order passed was not malafide, it was an order which was not based on no evidence, that it was not arbitrary or that no reasonable person would have formed such an opinion on the given material. It has also been held that the Reviewing Committee has to consider the entire record of service, before taking a decision in the matter, attaching more importance to the record of and performance during the later years and that the said record would naturally include entries in the confidential reports/character rolls, both favourable and adverse. Learned Central Government Standing Counsel would submit that the entire record was considered by the respondents and the instances referred, would also reflect the importance attached to the record of service and the performance of the petitioner during the later part of his service. On the facts as noted above, the question which arises for consideration is as to whether action taken by the respondents to compulsorily retire the petitioner compulsorily under Regulation 13 of the Museum Regulations read with FR 56(j), could be said to be an order made in “public interest”. It is no doubt true that the order does not specifically refer to its being passed in public interest, the impugned order dated 31-01-1997 however refers to FR 56(j) and to Regulation 13, whereunder an order of compulsorily retirement can only be passed in public interest. From the details extracted above, which, along with the service record of the petitioner, formed the basis for arriving at a decision to compulsorily retire the petitioner from service, it cannot be said that the action taken by the respondents