JUDGMENT
1. Heard learned Counsel for the appellant and Shri M.S. Pipersenia, learned Standing Counsel appearing for the respondents and also perused the order of the Hon'ble Single Judge.
2. The special appeal, under the Rules of the Court, arises from the judgment of the Hon'ble Single Judge dated 27.8.1998 dismissing the appellant's writ petition No. 3539 of 1994.
3. The petitioner-appellant was initially appointed as Senior Field Assistant, Sugar Cane Research Station, Shahjahanpur in the year 1960 and was confirmed on 28.11.1981. It appears that he was suspended On 11.7.73 to 19.8.1974. Thereafter he was again suspended during the period 1977 to 1981 and a departmental inquiry was initiated against him which was Ultimately culminated in the order of punishment dated 2.9.1982 as charge of embezzlement were found proved against him and he was also required to deposit a sum of Rs. 3281.30 p. The order of punishment also provide that in future he would not be given charge of any seed store and agriculture farm. Besides the above adverse entries, he was awarded two adverse entries in the year 1988-89 and 1989-90/-. the screening committee considerea the matter for premature retirement under Fundamental Rules, 56 and recommended the petitioner for compulsory retirement. Accepting the said recommendation the competent authority issued order dated 30.3.1993 compulsorily retiring the petitioner under Fundamental Rule 56. Challenging the order dated 31.3.1993 whereby the appellant was retired compulsorily, he filed writ petition No. 3539 of 1994, which has been dismissed by the Hon'ble Single Judge by means of the order under appeal.
4. Learned counsel for the appellant submits that the order of compulsory retirement was passed without giving any opportunity to the appellant and hence the same is in Violation of the principles of natural justice. He further submits that the decision is arbitrary, since on the basis of service record of the appellant, it cannot be said that he has outlived his utility or has become a dead wood not to be retained further in public service. He further submits that the entries, which are too old and stale, have been taken into consideration, as adverse material, in order to arrive at the decision of compulsory retirement, which is vitiated in law, since the entries, which are stale, could not have been considered at all. Lastly, learned Counsel for the appellant submits that he was granted selection grade, which shows that he is efficient and fit for retention in service but ignoring the said fact he has been retired compulsorily, which is arbitrary and discriminatory.
5. Learned counsel for the respondent, however, submits that the Hon'ble Single Judge after considering the pleadings of the parties and the material on record has also found that the petitioner-appellant has outlived its utility and, therefore, has rightly been recommended for compulsory retirement in public interest. He further submits that since compulsory retirement is not a punishment the question of affording opportunity to the appellant would not arise and, therefore, the Hon'ble Single Judge has rightly dismissed the writ petition.
6. We have given anxious thought to the submissions advanced by the learned Counsel for the parties and perused the record.
7. The contention of the learned Counsel for the appellant that he was not afforded opportunity which vitiates the order of compulsoty retirement, is entirely untenable and contrary to decades old settled law. Order of compulsory retirement is not a punishment, since it neither attaches any stigma nor it implies any suggestion of misbehaviour. A similar contention was advanced as long back as more than 50 years ago in the case of Shyam Lal v. State of U.P., . One of the grounds of challenge of the order of premature retirement was that no opportunity or show cause was afforded to the employee concerned against the proposed premature retirement. Rejecting the said contention the Hon'ble Apex Court held that the compulsory retirement does not amount to dismissal or removal and, therefore, it does not attract Article 311 of the Constitution or Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It was thus, held that fhe order of compulsory retirement cannot be challenged on the ground that the employee was not afforded opportunity of show cause against the action sought to be taken i.e. compulsory retirement.
8. Similar argument was advanced in the case of Union of India v. J.N. Sinha . It was also urged in the said case that the provision empowers the competent authority to retire the government servant compulsorily before attaining the normal age of superannuation and has to be read in consonance with the principle of natural justice, else the provision itself may be arbitrary and violative of Articles 14 & 16 of the Constitution of India. Rejecting this contention the Hon'ble Apex Court held that it is axiomatic that the provision in a statute or statutory rules ought to be read consistently with the principles of natural justice. It is so because the presumption is that the legislatures and statutory authority intend to act in conformity with the principles of natural justice. It is, however, open to the law making body to exclude the application of any or all the rules of principles of natural justice. This can be done by specific provision or by necessary implication. In either event the mandate of the legislature or statutory authority (in the case of statutory rules) cannot be ignored. In other words, the rules of principles of natural justice cannot be read into the provisions concerned. It was further held that whether the exercise of statutory power should or should not be done in accordance with any of the principles of natural justice or not depends upon the express words of the statute, which confers power as well as nature and perpose of power and effect of its exercise. It was further held that since compulsory retirement is not a punishment and the appropriate authority has absolute right to retire a government servant, if it is of the opinion that it is in the public interest to do so, it cannot be said that the order of compulsory retirement can be challenged on the ground of non-affording of opportunity of hearing. Same view has been reiterated by the Hon'ble Apex Court in the case of Baikunth Nath Das v. Chief Divisional Medical Officer relevant observation, as contained in para 34, may be reproduced as under: -
34. 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 of 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 fs 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 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 is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion |s 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 30 to 32 above.
9. Coming to the second aspect of the matter, whether the order impugned, in the present case, can be said to be arbitrary on the basis of the facts and relevant material of the case in hand, we find that sub Rule 2 of Fundamental Rule 56 empowers the appointing authority to take into consideration any material relating to the Government servant and nothing is to be excluded from this consideration. Same material, which is not to be excluded, has also been specified in the aforesaid provision. For brevity, sub Rule (2) of Fundamental Rule 56 is reproduced below: -
(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration -
(a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or
(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or
(c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.
10. In view of the aforesaid express provision of Fundamental Rule 56 as applicable in the State of U.P., it is not permissible to raise contention that certain material cannot be considered at all or should not be considered. Admittedly, the appellant has several adverse entries in the service book, as stated above. The competent authority after considering the entire service record of the appellant has arrived at the conclusion that the appellant should be retired compulsorily, as it is in public interest. It cannot be said that the decision has been taken by the authorities in the absence of any material at all. The scope of judicial review, in the matter of compulsory retirement, is now well settled. The judicial review is permissible only when the decision of compulsory retirement is taken in the absence of any adverse material or is vitiated on account of bias or mala fide or is otherwise in-consistent with the statutory provision. In State of Orissa v. Rom Chandra Dos the Hon'ble Apex Court of the judgment held as under: -
It is needless to reiterate that the settled legal position is that the Government is empowered and would be entitled to compulsorily retire a government servant in public interest with a view to improve efficiency of the administration or to weed out the people of doubtful integrity or who are corrupt but sufficient evidence was ; not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service. But the Government, before taking such decision to retire a government employee compulsorily from service, has to consider the entire record of the government servant including the latest reports.
(emphasis supplied)
11. In State of Gujarat v. Umedbhai M. Patel (2001) 3 SCC 374 after review of earlier law on the subject the Hon'ble Apex Court observed that the law relating to compulsory retirement has now crystallized into definite principles and broadly has summarized the said principles as under:
(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 interesl.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(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 the officer,
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(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 punitive measure.
12. Considering the order of compulsory retirement passed under Fundamental Rules 56 the Hon'ble Apex Court in Nawal Singh v. State of U.P. and Anr. upheld the orders of compulsory retirement passed on the basis of scrutiny of entire past record of service, character roll and other material. Therefore, in the present case, besides the adverse entries awarded to the petitioner-appellant in respect of various years, he was dlso found guilty of the charges of embezzlement.
13. Considering all the aforesaid aspects and the material available, it cannot be said that the decision taken by the respondent, retiring the petitioner-appellant compulsorily, is arbitrary of based on no material. In this view of the matter, we are of the view that the Hon'ble Single Judge has rightly upheld the order of compulsory retirement and the writ petition has rightly been dismissed.
14. Accordingly, the special appeal being devoid of merit, is hereby dismissed. There shall, how ever be no order as to costs.