Case: National Aviation Co.Of India Ltd Vs. S.M.K.Khan

service career. This is the normal rule subject always to exceptional circumstances such as disclosure of fresh objectionable grounds with regard to integrity or some other reasonably weighty reason." The said decision will not assist the respondent. The principle laid down therein is that after a review of the service of an employee for purposes of extension of service beyond 55 years, if it is decided that he is fit and suitable for continuation, there is no question of a re-appraisal of the same material, for taking a different decision in the absence of exceptional circumstances. That principle will apply, where on review, the competent authority is satisfied that the service of the employee is satisfactory and there is no ground to compulsorily retire the employee. But in this case, the employees service was not found to be satisfactory on review of performance at the end of 55 years, nor was the employee cleared for retention in service till 58 years. In this case, on review, the competent authority decided that the employee was not fit and suitable for retention and that he should be compulsorily retired from service with effect from 10.8.1998. But because of the extreme hardship pleaded by the employee and assurance of improvement in performance, the respondents service was continued as a special case, for only a period of one year beyond 55 years making it clear that retention of service beyond one year, that is, 10.5.1999, will be subject to the outcome of review that will be carried out after monitoring his attendance and performance during that period. Thus the continuation of respondent beyond 55 years was not because his service was satisfactory, but out of leniency, for a specific period somewhat on the lines of probation. During the extension period of one year, his performance was watched and it was found to be unsatisfactory. Therefore after giving due opportunity to him to explain the unsatisfactory service, a decision was taken by the competent authority not to continue him in service and consequently he was compulsorily retired from service with effect from 26.8.1999. Thus the compulsory retirement with effect from 26.8.1999 was merely a postponement of the compulsory retirement which was to take place on 10.5.1998 and not on account of a second-appraisal of the service performance upto 55 years. 9. The learned counsel for the respondent next submitted that recourse to `compulsory retirement should be only in `public interest; and that in this case, as neither the regulations nor the order of compulsory retirement referred to public interest, the compulsory retirement was vitiated. This contention has no merit. "Public interest" is used in the context of compulsory retirement of government servants while considering service under the state. The concept of public interest would get replaced by `institutional interest or `utility to the employer where the employer is a statutory authority or a government company and not the government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words `not in the interests of the institution or `service not of utility to the employer in the order of compulsory retirement as the regulation provides that no reason need be assigned.10. The respondent next drew our attention to the finding of the High Court that there was some discrepancy in regard to the number of days of unauthorized absence during the period of one year after 55 years and such unauthorized absence could not be a ground for compulsory retirement without an enquiry. It is true that the High Court has referred to the evidence of MW-1 and the entries in the muster rolls, to point out the discrepancy. MW1 had stated before the tribunal the period of unauthorized absence was 27 days whereas the entries in the muster rolls showed such absence was 32 days and that there was also an admission that out of the said 32 days, 6 days was availed as sick leave. But that cannot be a ground to conclude that the order of compulsory retirement was bad. The Tribunal and the High Court were not examining `unauthorized absence as a misconduct which was subject matter of a charge. When the show cause notice dated 27.5.1999 referred to the absence for 20 days during the period of one year beyond 55 years, the respondent did not deny the same in his reply dated 14.6.1999. On the other hand, he admitted such absence and tried to explain it as being on account of advanced age and ill health of himself and wife. The fact that the unauthorized absence was more than 20 days during a period of one year was never disputed. The discrepancy in the oral evidence of MW1 and the muster rolls in regard to the total number of unauthorized absence, even if true, was not material, as the respondent was not being punished for any specific unauthorized absence. The unauthorized absence was only the background material to reach the decision that respondents service was unsatisfactory. 11. The High Court also erred in treating the show cause notice dated 27.5.1999 as a charge memo and finding fault with it on the ground that it did not contain necessary particulars in regard to the charge of unauthorized absence, and consequently holding that in the absence of any inquiry, principles of natural justice were violated. The letter dated 27.5.1999 was not a charge memo but only a notice giving opportunity to the employee before compulsorily retiring him under Regulation 12. In fact even without such a notice he could have been compulsorily retired.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The principle laid down therein is that after a review of the service of an employee for purposes of extension of service beyond 55 years, if it is decided that he is fit and suitable for continuation, there is no question of a re-appraisal of the same material, for taking a different decision in the absence of exceptional circumstances. That principle will apply, where on review, the competent authority is satisfied that the service of the employee is satisfactory and there is no ground to compulsorily retire the employee. But in this case, the employees service was not found to be satisfactory on review of performance at the end of 55 years, nor was the employee cleared for retention in service till 58 years. In this case, on review, the competent authority decided that the employee was not fit and suitable for retention and that he should be compulsorily retired from service with effect from 10.8.1998. But because of the extreme hardship pleaded by the employee and assurance of improvement in performance, the respondents service was continued as a special case, for only a period of one year beyond 55 years making it clear that retention of service beyond one year, that is, 10.5.1999, will be subject to the outcome of review that will be carried out after monitoring his attendance and performance during that period. Thus the continuation of respondent beyond 55 years was not because his service was satisfactory, but out of leniency, for a specific period somewhat on the lines of probation. During the extension period of one year, his performance was watched and it was found to be unsatisfactory. Therefore after giving due opportunity to him to explain the unsatisfactory service, a decision was taken by the competent authority not to continue him in service and consequently he was compulsorily retired from service with effect from 26.8.1999. Thus the compulsory retirement with effect from 26.8.1999 was merely a postponement of the compulsory retirement which was to take place on 10.5.1998 and not on account of a second-appraisal of the service performance upto 55interest" is used in the context of compulsory retirement of government servants while considering service under the state. The concept of public interest would get replaced by `institutional interest or `utility to the employer where the employer is a statutory authority or a government company and not the government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words `not in the interests of the institution or `service not of utility to the employer in the order of compulsory retirement as the regulation provides that no reason need be assigned.The High Court also erred in treating the show cause notice dated 27.5.1999 as a charge memo and finding fault with it on the ground that it did not contain necessary particulars in regard to the charge of unauthorized absence, and consequently holding that in the absence of any inquiry, principles of natural justice were violated. The letter dated 27.5.1999 was not a charge memo but only a notice giving opportunity to the employee before compulsorily retiring him under Regulation 12. In fact even without such a notice he could have been compulsorily retired.