Letters Patel Appeal No.826 of 2002 -------- Against the judgment and order dated 1.7.2002 passed by a learned Single Judge in CWJC No. 6343 of 2000. ------- Ram Pal Singh, son of late Dalmore Singh, at Present resident of C/o Hotel Sweta, Saraswati Chndra Market Kurji, Town and District Patna- 800919 Appellant VERSUS 1. The Union of India, through the Secretary, Ministry of Chemicals & Fertilizers, Government of India, New Delhi. 2. The Central Institute of Plastic Engineering & Technology, having its head office at Guindy, Chennai-32 (hereinafter referred to as “the Institute” through its Director) 3. The Director General, Institute of Plastic Engineering & Technology, Guindy, Chennai-32. 4. The Chief Manager (F&A), Central Institute of Plastic Engineering & Technology, Chennai-32. 5. The Chief Manager (Project), Central Institute of Plastic Engineering & Technology, Eastern Centre, Patna-32, Patna Industrial Area, Building, Patna 800013 (Bihar) Respondents ------ For the Appellant : Dr Sadanand Jha, Sr. Advcoate Mr Abhinav Shrivastava, Advocate For the Respondents 2 to 5 : M/s Pushkar Narain Shahi and Nishant Choudhary, Advocates ------- PRESENT THE HON‟BLE MR JUSTICE SHIVA KIRTI SINGH THE HON‟BLE MR JUSTICE J.N.SINGH Shiva Kirti Singh & J.N.Singh, JJ. This Letters Patent Appeal is directed against the judgment and order dated 1.7.2002 whereby the learned single Judge has 2 dismissed the writ petition preferred by the appellant challenging his compulsory retirement by an order dated 16.5.2000 which was communicated by a letter dated 24.5.2000. 2. At the time of his compulsory retirement, petitioner was working as Manager (Processing/ Testing) in the Central Institute of Plastic Engineering and Technology (hereinafter referred to as „the Institute‟), at its extension centre at Patna. The Institute is a society registered under the Society Registration Act, having its head office at Chennai. It is admittedly an authority under the control of Ministry of Chemicals and Fertilizers, Government of India. 3. From the uncontroverted averments in the writ petition, the career profile of the appellant is as follows. In August 1978, he was appointed as Chargeman (Trainee). In May 1979, he was placed as Supervisor (Trainee). In September 1979, he was confirmed on the post of Supervisor with effect from 30.8.1978, after completing his probation satisfactorily. He was selected and appointed as Foreman Instructor in February 1981 on which post he was confirmed after one year. In 1984, the post of Foreman Instructor was redesignated as Assistant Engineer. It appears that appellant was aggrieved by promotion granted to his junior and he filed a writ petition in Madras High Court. According to appellant, on that account he incurred displeasure and was subjected to frequent transfers to Bhubneshwar in 1987, to Ahmedabad in 1989, to Bhubneshwar in 1990 and to Madras in 1991. However, by order dated 3 30.4.1992, the appellant was promoted from the post of Assistant Engineer (Training) to the post of Manager (Processing/Testing) and transferred to Amritsar. He was confirmed on that post by an order dated 28.6.1996 but with effect from 30.4.1993. By order dated 24.12.1997, he was transferred from Amritsar to the extension centre at Patna. There he was compulsorily retired in the month of May 2000. The order of compulsory retirement was challenged by him in writ petition which has been dismissed by the order under appeal. 4. Learned counsel for the appellant has submitted that certain important facts having bearing on the validity of order of compulsory retirement were not appreciated by the Writ Court and the issue of malafide and colourable exercise of power was rejected as one without merit in a single sentence in paragraph 5 of the judgment under appeal without considering the averments in the writ petition and without looking into the service record of the appellant from that angle. It was further submitted that the issues of stigma and requirement of natural justice to hear in matters of compulsory retirement, were considered in detail by the Writ Court and on that account only, the writ petition was dismissed without noticing the relevant facts which, according to learned counsel for the appellant, would have demonstrated that the order of compulsory retirement against the appellant was bad in law even in the light of the Supreme Court judgment in the case of Baikunth Nath Das and ano. V. Chief District Medical Officer, (1992) 2 SCC 299. 4 5. This Court finds that the Writ Court has rightly held that appellant was not a government servant and, therefore, Article 311(2) of the Constitution was not attracted in his case. It has further been correctly held that an order of compulsory retirement is not a punishment, it implies no stigma and the principles of natural justice are not attracted in case of compulsory retirement. Learned counsel for the appellant has also not disputed the aforesaid propositions of law and has, in fact, placed reliance on the discussions and conclusions as made in the case of Baikunth Nath Das in which a Bench of three Judges of the Supreme Court considered the law of compulsory retirement in detail. Paragraph 34 of that judgment which has been quoted by the Writ Court in paragraph 16, is as follows : “34. 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 misbehavior. (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 5 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 it they are satisfied that the order is passed (a) mala fide or (b) that it is based on an 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 6 also taken into consideration. That circumstance by itself cannot be a basis for interference.” 6. According to learned counsel for the appellant conclusions no.(iii) and (iv), quoted above, are attracted in the case of the appellant on the basis of uncontroverted facts as well as his service record. It was highlighted that the High Court was not required to examine the matter as an appellate court but the issues of mala fide in the sense of colourable exercise of power, lack of any evidence and arbitrary action in the sense that no reasonable person would form the required opinion for compulsory retirement, were required to be considered by the Writ Court which was not done, as would appear from paragraph 5 of the judgment under appeal. The relevance of conclusion no.(iv) was highlighted on the basis of service record of the appellant which were called for by another Division Bench of this Court by order passed on 22.12.2008 and which were perused by the parties and the Court at the time of final arguments. It was demonstrated by the learned counsel for the appellant that the order of compulsory retirement was preceded by recommendation of the Committee constituted to review the performance of the appellant and the recommendation against the appellant dated 6.5.2000 shows that the authorities considered ACRs for 15 years, including those prior to his promotion in 1992 and instead of concluding that prior to 1992 he had only one overall rating of „below average‟ the conclusion was misleading that except overall rating for 7 two years, out of 15 years, the rating were either „average‟ or „below average‟. The only entry of „below average‟ was prior to appellant‟s promotion in the year 1992 and as per conclusion no.(iv) of the Supreme Court, noticed above, such adverse ACR prior to last promotion could not have been looked into for the purpose of compulsory retirement. It was also demonstrated that after 1992, for the next two years appellant had overall rating of „good‟ followed by rating of „average‟ till 1998 and in the year preceding his compulsory retirement only he was given a rating of „poor‟. According to learned counsel for the appellant, the last rating of „poor‟ for the year 1999 was on account of malafide and annoyance on the part of his superiors at Patna because, as alleged in paragraph 27 of the writ petition, appellant considered himself as an honest officer and as such he has raised the issues regarding malfunctioning as well as rampant corruption and favoritism in the Institute. No doubt, in counter affidavit filed on behalf of the respondents 1 to 5, in paragraph 27 a clear denial was made and it was replied that the appellant in fact did not bring any such thing in the notice of the Management. But in the service record appellant‟s letter dated 17.9.1998 is available at page 38. The said letter is addressed to the Director of the Institute at Chennai. In that letter he has referred to his previous letter regarding poor administration and has expressed many problems being faced, for instance, attendance register not being available for signature, the attendance register being absent from the 8 authorized place and being marked in most casual manner once in a week or so, behaviour of the Helpers not being proper, the Helpers were reported to be working in the house of one Abdul Rahman, Manager and only occasionally available for office work. He also raised a grievance that his salary for the month of August 1998 had not been paid. On behalf of the appellant, it was pointed out that letters and reports against the appellant were created by the Manager at Patna only after such complaint by the appellant to the Director. It was pointed out that the letters and warning contained in Annexures E, E/1 and E/2 dated 13.10.1998, 19.2.1999 and 29.9.1999 are all after the appellant had allegedly acted as a whistle blower and pointed out wrong practices at Patna office. 7. Learned counsel for the respondents was unable to defend the reply in the counter affidavit to averments made in paragraph 27 of the writ petition. The letter of the appellant dated 17.9.1998 was clearly ignored and overlooked at the time of preparing the counter affidavit and clearly the attempt was to prevent this Court from examining the material facts in respect of allegation of malafide/ colourable exercise of power. The fact that while making its recommendations on 6.5.2000 for compulsory retirement of the appellant vide Annexure G/1 to the supplementary counter affidavit, the Committee wrongly mentioned that the appellant had got only one promotion during his tenure of 22 years of service. The uncontroverted facts in the writ petition noticed earlier 9 clearly show that he got more than two promotions. It also could not be disputed that only overall rating of „below average‟ taken note by the Committee was on the basis of an adverse ACR of the year 1989 which was prior to appellant‟s promotion in the year 1992 and as per the Supreme Court judgment, the same should not have been highlighted or given importance which it has been accorded in the minutes of the Committee contained in Annexure G/1. In fact, the two subsequent ratings of „good‟ for the year 1993 and 1994 have been also totally ignored. 8. On a proper consideration of the service record of the appellant noticed above and his averments in paragraph 27 of the writ petition which were falsely denied, we are satisfied that the order of compulsory retirement has been passed in colourable exercise of power and the only „poor‟ rating given to the appellant in the preceding year before subjecting him to compulsory retirement clearly appears to be on account of his complaint made against the Manager at Patna. It was on account of such complaint that soon thereafter the authorities at Patna began to level allegations and complaint against the appellant leading to adverse rating of poor for only one year since his promotion in the year 1992. We are also satisfied that in the light of service record of the appellant since his promotion in the year 1992 and also otherwise, no reasonable person should have come to the opinion that the appellant should be retired compulsorily in public interest. 10 9. In view of aforesaid discussions and findings, the judgment and order under appeal is set aside. The order of compulsory retirement of the appellant is quashed. The writ petition as well as the appeal is allowed. As a result of setting aside of the impugned order of compulsory retirement, the appellant would be entitled to all the consequential benefits which must be made available to him within three months. (Shiva Kirti Singh,J.) (J.N.Singh,J.) Patna High Court The 9th February, 2009 AFR/ S.Kumar