Principles of natural justice have no place in the context of an order of compulsory retirement: Allahabad High Court

Reserved on 11.08.2021 Delivered on 08.10.2021 Case : WRIT A No. 554317 Petitioner : Head Constable Ravindra Mishra Respondent : State of U.P. and Another Counsel for Petitioner : Satya Prakash Pandey Counsel for Respondent : C.S.C Hon ble Saral Srivastava J Heard Sri Satya Prakash Pandey learned counsel for the petitioner and Dr. Amar Nath Singh learned Standing Counsel for the respondents The petitioner by means of the present writ petition has assailed the orders dated 31.07.2017 and 10.11.2017 passed by respondent no.2 by which the petitioner has been compulsorily retired from service The petitioner was appointed as Constable in P.A.C. on 15.08.1981 and was promoted as Head Constable in the year 1992. The date of birth of the petitioner is 25.06.1962 and the date of retirement is 30.06.2022 It appears that a decision was taken by the Government to assess the suitability of about 203 Constables belonging to Class III employees and 36 employees of Class IV working in the P.A.C. Department for continuing in service Pursuant to the said decision a Committee was constituted to assess the suitability of employees. Accordingly the committee constituted for such purpose assessed the suitability of employees. The Committee on the assessment of service record of the petitioner found that in the last 10 years the service of the petitioner was not satisfactory and accordingly his services are no longer required in the public interest. Consequently the committee recommended the compulsory retirement of the petitioner by order dated 31.07.2017 The case of the petitioner is that the service record of the petitioner has not been properly assessed by the committee yet he has been recommended for compulsory retirement A counter affidavit has been filed by the respondent state stating that the petitioner was awarded five minor punishments in the years 1984 1989 1998 2001 and 2015. It was further stated that the petitioner was awarded three censure entries in the years 2002 2007 and 2010 and adverse annual remarks in the years 2002 2010 2013 and 2015. Thus the service of the petitioner is not satisfactory. The respondents also enclosed a chart based on the service book of the petitioner demonstrating the punishment awarded to the petitioner. The chart enclosed as Annexure 4 to the counter affidavit is being extracted herein below: उद्वरण चिचिरत्र चपंजिजिक चमुख्य चआरक्षी चपीएन० चओ चनंज० च च810630129 रवीन्द्र चिमश्रा दण्ड चका च दण्ड चकी चसंजख्या दण्ड चप्रदान चिकये चजिाने च चििरत्र चपंजिजिका चका चपेजि चसंजख्या पेजि चसंज० 82 पर चअंजिकत चहै। पेजि चसंज० 82 पर चअंजिकत चहै। पेजि चसंज० 82 पर चअंजिकत चहै। पेजि चसंज० 82 पर चअंजिकत चहै। पेजि चसंज० 83 पर चअंजिकत चहै। पेजि चसंज० 77 78 पर चअंजिकत चहै। पेजि चसंज० 79 पर चअंजिकत चहै। पेजि चसंज० 80 पर चअंजिकत चहै। पेजि चसंज० 51 पर चअंजिकत चहै। पेजि चसंज० 55 पर चअंजिकत चहै। पेजि चसंज० 56 57 पर चअंजिकत चहै। पेजि चसंज० 57 पर चअंजिकत चहै। 12वीं चवािहनी चपीएसी The further averment in the counter affidavit is that the screening committee after scrutinizing the service record of the petitioner found that five minor punishments three censure entries and four annual remarks had been awarded to the petitioner accordingly it recommended for compulsory retirement of the petitioner as the continuance of the petitioner in service would not be in the public interest To meet the averments made in the counter affidavit a second supplementary affidavit has been filed by the petitioner stating therein that petitioner on completing 8 years of satisfactory service as Head Constable was given the benefit of selection grade w.e.f 09.07.2000 and on completing 14 years of service he was granted super selection grade on 09.07.2006. It is further stated that vide Hindi Order BookNo.408 dated 15.07.2014 the petitioner was granted Grade Pay of Rs.4600 under Assured Career Progression Scheme by providing two increments w.e.f 30.03.2013. The arrears of salary was also paid to the petitioner. It is further stated that none of the adverse entries awarded to the petitioner in the last 10 years have been communicated to the petitioner particularly entries of the years 2010 2013 & 2014 were never communicated to the petitioner. The integrity of the petitioner was always certified by the concerned officer 10. Respondent no.2 filed a supplementary counter affidavit wherein he did not deny the fact of granting time pay scale to the petitioner on 07.09.2000 but it was pleaded that petitioner was placed under suspension on being engaged in a scuffle with one Indrapal during the Parade at 42nd Battalion P.A.C. Allahabad. It is further pleaded that from the service record it is also evident that the petitioner was awarded adverse entries in the years 2013 & 2014 however it is not clear from the record as to whether these entries were communicated to the petitioner or not. The petitioner was punished in the year 2015 at Orderly Room and was awarded adverse entry by order dated 08.01.2018. The petitioner was punished with a penalty of Rs.500 by order dated 30.03.2010 In the rejoinder affidavit filed to the counter affidavit petitioner did not deny the fact of various punishments awarded to the petitioner but has tried to explain in paragraph 5 of the rejoinder affidavit why they are not relevant while assessing and scrutinizing the past service record of the petitioner for consideration to recommend the petitioner for compulsory The petitioner filed a supplementary rejoinder affidavit to the supplementary counter affidavit wherein the averments made in the supplementary counter affidavit have not been specifically denied However in paragraph 5 of the rejoinder affidavit he has stated that the date 08.01.2018 has been wrongly mentioned whereas the correct date is 08.01.2008 but he did not deny the fact that he was awarded adverse entry by the said order 13. Challenging the order of compulsory retirement learned counsel for the petitioner has submitted that the order of compulsory retirement has been passed without correctly assessing and scrutinizing the service record of the petitioner. He submits that there was no material or evidence against the petitioner before the committee based on which the committee could form an opinion that continuance of petitioner in service is not in the public interest. He further submits the fact that the petitioner has been extended the benefit of the time pay scale and benefit of ACP by granting two increments w.e.f 30.03.2013 implies that whatever adverse entries or order of punishment are recorded in the service record of the petitioner have been condoned as the benefit of the time pay scale and ACP are granted on the basis of satisfaction of past service of an employee and thus it proves that recommendation of the committee recommending the petitioner to compulsory retirement is not based upon proper appreciation of record of past service of the petitioner. It is further submitted that since the recommendation for compulsory retirement has been made without application of mind therefore order of compulsory retirement is not sustainable in law and deserves to be set aside. In support of his aforesaid submissions he has placed reliance upon the following judgments: i. State of Gujarat and Another Vs. Suryakant Chunilal Shah1 SCC 529 ADJ 58215 SCC 221 iii. Avinash Chandra Tripathi Vs. State of U.P. and Another 2018Writ A No.1182183 SCC 514 wherein Apex Court has succinctly explained the law on compulsory retirement. Paragraphs 20 & 21 of the said judgment are being extracted herein below: “20. The principles on which a government servant can be ordered to be compulsorily retired were authoritatively laid down by this Court in Baikuntha Nath Das Vs. District Medical Officer2 SCC 299. In para 34 the principles have been summed up as “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 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 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 passedmala fide or b) that it is based on no evidence orthat 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 Governmentand 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 in3 SCC 580. The principles have been restated as follows: “34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the courts to ascertain whether a valid material exists or otherwise on which the subjective satisfaction of the administrative authority is based. In the present matter what we see is that the High Court while holding that the track record and service record of the appellant was unsatisfactory has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACRs which were obtained by him from the High Court under the Right to Information Act 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of 36. The material on which the decision of the compulsory retirement was based as extracted by the High Court in the impugned judgment and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore there was no justification to retire the appellant compulsorily from In the case of State of Gujarat Vs. Umedbhai M. Patel3 SCC 314 the Apex Court has broadly summarised the principles relating to compulsory retirement. Paragraph 11 of the said judgment is being extracted herein below: “11. The law relating to compulsory retirement has now crystallised into definite principles which could be broadly summarised thus i) 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 interest ii) Ordinarily the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the iii) 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 iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such v) Even uncommunicated entries in the confidential record can also be taken into consideration vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable vii) If the officer was given a promotion despite adverse entries made in the confidential record that is a fact in favour of the officer viii) Compulsory retirement shall not be imposed as a In the light of parameters laid down by the Apex Court in the aforesaid two judgments the Court proceeds to analyse the challenge to the order of compulsory retirement. In the case in hand the record reflects that the petitioner has been awarded several punishments during the entire tenure of service which has been detailed in the earlier part of the The fact that the petitioner has been awarded so many adverse entries and punishment as stated in the counter affidavit which has been detailed above has not been categorically denied by the petitioner Though the petitioner has tried to explain in rejoinder affidavit that those punishment or adverse entries are not sufficient material based on which the committee could form an opinion that continuance of petitioner in service is not in the public interest It is also urged by the learned counsel for the petitioner that whatever adverse entry or punishment has been awarded in the past are condoned by the respondents for the reasons that petitioner has been awarded time pay scale and grade pay etc. and had been granted ACP which can be granted only when in the opinion of the department service of the petitioner had been satisfactory 20. At this point it would be worth notice the judgment of this Court in the case of Dinesh Chandra wherein order of compulsory retirement has been assailed on the ground that it was based upon annual confidential remarks for the years 2011 12 and 2013 14 and an Excellent entry awarded by the Tehsildar for the year 2016 17 was ignored thus order of compulsory retirement is illegal while repelling the said contention this Court held that the order of compulsory retirement is based upon subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. It is further held that the order of compulsory retirement is neither punitive nor stigmatic. Paragraph 8 of the said judgment is being extracted herein “8. Constitution Bench of Supreme Court in Shyamlal v. State of U.P. AIR 1954 SC 369 held that the two requirements for compulsory retirement are that the officer has completed twenty five years service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465 A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words a compulsory retirement has no stigma or implication of misbehaviour or incapacity. A compulsory retirement does not amount to dismissal or removal and therefore does not attract the provisions of Article 311 of the Constitution. In Rajasthan SRTC v. Babu Lal Jangir 10 SCC 551 held that it hardly needs to be emphasised 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 mala fide perverse or arbitrary or if there is non compliance with 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 bona fide opinion that compulsory retirement is in public interest.” Similar view has been taken by this Court in the case of Shiv Charan wherein the order of compulsory retirement was challenged on the ground that the order is stigmatic and has been passed in violation of Article 311(2) of the Constitution of India 22. Applying the parameters elucidated by the Apex Court in considering the challenge to the order of compulsory retirement this Court finds that recommendation of the committee to compulsorily retire the petitioner is based upon consideration of the entire service record of It is true that authority while considering as to whether petitioner is deadwood and his continuance in the department is not in the public interest should give due weightage to the record of the last 10 years but it does not mean that authorities are precluded from looking into the entire service record of the petitioner in forming the opinion that an employee is deadwood and his continuance in the department is not in the public In the present case even the service record of the last 10 years of the petitioner is not clean which is evident from the chart given in the counter affidavit extracted above and this fact has not specifically been denied by the petitioner. However the petitioner had tried to demonstrate that punishment awarded to him has been condoned on the ground that he had been granted time pay scale grade pay and A.C.P. which could be extended to him only when the authorities are satisfied that his past service had been satisfactory It is true that in the case of Umedebhai M. Patelthe Apex Court has held that if the officer was given a promotion despite adverse entries in his confidential record that is a fact in his favour but at the same time Apex Court has also held that adverse entries and uncommunicated entries in the confidential record shall be taken into consideration in forming an opinion as to whether service of the petitioner is required and continuance of petitioner is for the benefit of the department and is in the public interest 26. At this point it is worth noticing that principles governing the grant of certain benefits i.e. pay scales and other benefits are different than the assessment of service record of the petitioner to assess the suitability of the petitioner whether his continuance in the department is for the public good or not therefore grant of the promotional pay scale etc. may be one factor which may be in favour of the petitioner but it does not mean that authority while assessing the suitability of the petitioner is under obligation to ignore other factors to consider whether the continuance of petitioner in the department is in the public interest or not In the instant case right from the joining of service by the petitioner it is evident that the petitioner has been awarded adverse entries or punishment. The committee is competent to broadly look into the entire service record of the petitioner to form an opinion as to whether the employee should be recommended for compulsory retirement as the object of the compulsory retirement is to weed out the deadwood and making a healthy working environment in the department for the public So far as the judgment of this Court in the case of Avinash Chandra Tripathi relied upon by the learned counsel for the petitioner is concerned it was a case where the service record of the petitioner did not reflect any adverse entry against him and one adverse entry which was awarded to him was set aside and upon consideration of entire service record this Court found that opinion formed by the committee for recommending the case of the petitioner for compulsory retirement was not based upon material on record and accordingly this Court interfered with the order of compulsory retirement In the case of Suryakant Chunilal Shah the order of compulsory retirement was based upon the involvement of the employee in two criminal cases and the department based on the involvement of the employee in two criminal cases formed an opinion that the continuance of the employee in the department was not in the public interest. The apex court set aside the order of compulsory retirement holding that involvement of an employee in a criminal case does not imply that he is guilty. Paragraph 27 of the said judgment is being extracted herein “27. The whole exercise described above would therefore indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a government servant or that he had lost his efficiency and had become a dead wood he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may however hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee 30. As the judgment of Suryakant Chunilal Shahhas been rendered in a different fact situation therefore this judgment does not come in aid to the petitioner In the case of Madhya Pradesh State Cooperative Dairy Federation LimitedApex Court affirmed the order of High Court quashing the order of compulsory retirement as no consideration has been given to the performance of the employee for the last five years and order of compulsory retirement had been passed ignoring the rules and circulars made by the Federation to assess the suitability of an employee whether he is dead wood for the department and should be compulsory retired Paragraphs 41 & 42 of the judgment are being extracted herein below: “41. We have noticed hereinbefore that although criteria adopted by the State were required to be considered for the purpose of determining the suitability or otherwise of the employees to continue in service the necessity to give special consideration to the performance of the employees for the last five years before the order was passed had been given a complete go by. The learned Single Judge as also the Division Bench as noticed hereinbefore clearly held that for the purpose of weeding out the dead wood it was absolutely necessary to take into consideration the performance of each of the employees at least for the last two years. Each case thus was required to be considered on its merit 42. The broad criteria which are not only applicable generally for the aforementioned purpose were required to be followed but there cannot be any doubt or dispute that the criteria laid down by the State was imperative in character. Thus the Federation adopted the rules and circulars made or issued by the State Government. The Federation itself having formulated the criteria required to be applied for passing orders of compulsory retirement was thus This judgment is also of no help to the petitioner as the facts in which order of compulsory retirement was quashed by the High Court and affirmed by the Apex Court are entirely different and not akin to the facts in the present case Thus for the reasons given above the writ petition lacks merit and is accordingly dismissed with no order as to costs Order Date : 8.10.2021

Summary: Right from the joining of service by the petitioner, it is evident that the petitioner has been awarded adverse entries or punishment. The committee is competent to broadly look into the entire service record of the petitioner to form an opinion as to whether the employee should be recommended for compulsory retirement as the object of the compulsory retirement is to weed out the deadwood and make a healthy working environment in the department for the public good. Such an opinion was held by the Hon’ble Allahabad High Court before Hon’ble Justice Saral Srivastava in the matter of Head Constable Ravindra Mishra vs State of U.P. &amp; Anr. [WRIT – A No. – 55436 of 2017]. 
The facts involved in the case were that the petitioner was appointed as Constable in P.A.C. on 15.08.1981 and was promoted as Head Constable in the year 1992. A committee recommended the compulsory retirement of the petitioner by order dated 31.07.2017. It was the contention of the petitioner that the committee has not assessed his service record properly and had made the decision wrongly.

The Hon’ble High Court referred to the judgment of Rajesh Kumar Gupta Vs. State of Jammu &amp; Kashmir and Others (2013) 3 SCC 514 wherein the Apex court held that “An order of compulsory retirement is not a punishment. It implies no stigma or any suggestion of misbehavior. 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 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”

Additionally, the Hon’ble High Court observed that the record reflects that the petitioner has been awarded several punishments during the entire tenure of service. The service record of the last 10 years of the petitioner is not clean.

Finally, the Hon’ble High Court dismissed the appeal with a view that the instant appeal has no merit.
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Judgment Reviewed by: Rohan Kumar Thakur
 The facts involved in the case were that the petitioner was appointed as Constable in P.A.C. on 15.08.1981 and was promoted as Head Constable in the year 1992. A committee recommended the compulsory retirement of the petitioner by order dated 31.07.2017. It was the contention of the petitioner that the committee has not assessed his service record properly and had made the decision wrongly. 
The Hon’ble High Court referred to the judgment of Rajesh Kumar Gupta Vs. State of Jammu &amp; Kashmir and Others (2013) 3 SCC 514 wherein the Apex court held that “An order of compulsory retirement is not a punishment. It implies no stigma or any suggestion of misbehavior. 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 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”

Additionally, the Hon’ble High Court observed that the record reflects that the petitioner has been awarded several punishments during the entire tenure of service. The service record of the last 10 years of the petitioner is not clean.

Finally, the Hon’ble High Court dismissed the appeal with a view that the instant appeal has no merit.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The Hon’ble High Court referred to the judgment of Rajesh Kumar Gupta Vs. State of Jammu &amp; Kashmir and Others (2013) 3 SCC 514 wherein the Apex court held that “An order of compulsory retirement is not a punishment. It implies no stigma or any suggestion of misbehavior. 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 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” 
Additionally, the Hon’ble High Court observed that the record reflects that the petitioner has been awarded several punishments during the entire tenure of service. The service record of the last 10 years of the petitioner is not clean.

Finally, the Hon’ble High Court dismissed the appeal with a view that the instant appeal has no merit.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 Additionally, the Hon’ble High Court observed that the record reflects that the petitioner has been awarded several punishments during the entire tenure of service. The service record of the last 10 years of the petitioner is not clean. 
Finally, the Hon’ble High Court dismissed the appeal with a view that the instant appeal has no merit.