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PETITIONER: POST AND TELEGRAPH BOARD AND ORS.

       Vs.

RESPONDENT: C.S.N. MURTHY

DATE OF JUDGMENT26/03/1992

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. RAMASWAMI, V. (J) II YOGESHWAR DAYAL (J)

CITATION:  1992 AIR 1368            1992 SCR  (2) 338  1992 SCC  (2) 317        JT 1992 (2)   357  1992 SCALE  (1)727

ACT:      Service Law :      Fundamental Rules :      F.R.  56(j)-Compulsory retirement-Posts and  Telegraphs Department-Assistant   Engineer-Service  record-Review   of- Standard of work declined and not satisfactory for last  two years-No   adverse  remarks  for  previous  years-Order   of compulsory retirement passed on recommendation of high power committee-Validity  of  : whether  courts  should  interfere with.

HEADNOTE:      The  case of the respondent, an Assistant  Engineer  in Posts   and  Telegraphs  Department,  was   considered   for compulsory  retirement under Fundamental Rule 56(j).   There were  adverse  remarks for the financial years  1970-71  and 1971-72  showing  that  respondent’s standard  of  work  had declined  and was not satisfactory.  There was  no  material adverse  to the respondent up to the year 1969-70.   On  the recommendation   of   a  high  power   committee,   he   was compulsorily retired from service in February, 1973.      Respondent’s  writ petition challenging his  compulsory retirement was dismissed by the High Court; but the Division Bench of the High Court allowed his appeal holding that  the order  of retirement was not found on any relevant  material and was arbitrary and capricious.  The Union of India  filed the appeal by special leave to this Court.      Allowing the appeal, this Court,      HELD  : 1. Notwithstanding the earlier record   of  the respondent  being  good,  if  the  record  showed  that  the standard of work of the respondent had declined and was  not satisfactory,  that  was  certainly  material  enabling  the department to come to a conclusion under Fundamental Rule 56 (j). [p.343 CD]                                                   339      2.  There were adverse entires against  the  respondent for the financial years 1970-71 and 1971-72.  The purport of the  confidential reports of these years was  placed  before this Court and had also been referred to by the High  Court. They  were objective appraisals of respondent’s  work.   The

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adverse remarks for the year 1971-72 standing by themselves, can  constitute  sufficient material for the  Department  to come  to  the  conclusion.   There  was  material  for   the Department to come to the conclusion.  There was material to show that the efficiency of the respondent was slackening in the  last  two years of th period under review  and  it  is, therefore,  not  possible  to fault the  conclusion  of  the department  as  being  mala  fide,  perverse,  arbitrary  or unreasonable.  [pp.341GH; 342A; 343A-C]      3.  The  Division  Bench of the  High  Court  erred  in setting  aside  the order of compulsory  retirement  on  the basis  that there was no material on recored justifying  the action against the respondent. [p.343D]      4. An order of compulsory retirement under  Fundamental Rule 56(j) is not an order or punishment.  The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily  for the  Government  to  decide  upon.   The  Courts  will   not interfere with the exercise of this power if arrived at bona fide  and on the basis of material available on the  record. [p.342FG]      Baikuntha  Nath Das v. Chief District Medical  Officer, Baripada, 1992 2 J.T. 1 (S.C.), relied on.

JUDGMENT:      CIVIL  APPELLATE JURISDICTION  : Civil Appeal No.  1299 of 1976.     From  the  Judgment  and Order dated  20.7.1976  of  the Andhra Pradesh High Court in W.A. No. 855 of 1974.      V.C Mahajan and C.V.S. Rao for the Appellants.      R.  Venkataramani, S.M. Garg, T. Lajapathi Roy and  Ms. Rani Chhabra for the Respondents.      The Judgment of the Court was delivered by      RANGANATHAN,  J. The respondent, C.S.N. Murthy, was  an Assistant Engineer in the Telecommunication Training  Centre at Hyderabad.  He was normally due to retire from service in 1980.  However, the                                                   340 provisions  of  rule  56(j) of the  Fundamental  Rules  were invoked in his case.  A high powered committee consisting of the  Secretary  to  the Ministry of Finance  and  the  Joint Secretary  to the Cabinet Secretariat reviewed  the  service records  of  96 persons belonging to  the  Department.   The committee  recommended,  on  an overall  assessment  of  the confidential  records, that there was no  justification  for continuing  the petitioner and two others (with whom we  are not    here   concerned)   in   service.    Accepting    the recommendations  of the committee, the Posts and  Telegraphs Board  issued a notice on the respondent on 19.10.73  giving him  notice of compulsory retirement under fundamental  rule 56(j)  with effect from the expiry of three months from  the date of service of the notice on him.  Consequent thereupon, the  respondent’s  services  came  to  an  end,  by  way  of compulsory retirement, in February 1974.      The  respondent  filed a writ petition  in  the  Andhra Pradesh High Court challenging the validity of the order  of compulsory   retirement   but   the   writ   petition    was unsuccessful.   However,  the appeal preferred by him  to  a Division Bench of the High Court was allowed.  The  Division Bench, in its judgment and order dated 19.7.76, came to  the conclusion  that  the impugned order of retirement  was  not founded  on  any  relevant material and  was  arbitrary  and capricious.  The impugned order was, therefore, quashed  and

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the petitioner was directed to be reinstated forthwith  with all  the  benefits that could have accrued to  him  had  the order not been implemented against him.  The Union of  India has preferred the present appeal.      The  modalities for the invocation of fundamental  rule 56(j)  have been examined by a number of decisions  of  this Court.  All these judgments have been reviewed and the legal principles  applicable thereto have been summarised by  B.P. Jeevan  Reddy  J.,  speaking  for  the  Supreme  Court,   in Baikuntha  Nath  Das  v.  Chief  District  Medical  Officer, Baripada,  1992-2 J.T. 1 (S.C.). These principles have  been set  out  in  paragraph 32 of the  judgment,  which  can  be extracted here for purposes of convenient reference:           32. 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.                                                   341           (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 a 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  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.      In  the  present  case,  the  service  records  of  the petitioner were reviewed by a high powered committee.  It is true  that there was no material adverse to  the  respondent upto  the year 1969-70.  But there were adverse entries  for the financial years 1970-71 and 1971-72.  The purport of the                                                   342 confidential  reports of these years has been placed  before

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this court and had also been referred to by the High  Court. These  have  been  set  out  in  letters  addressed  to  the respondent  by  his  superiors on  29.4.1971  and  15.4.1972 respectively.   A perusal of these letters shows  that  they were  objective appraisals of the petitioner’s  work  during the  two financial years in question.  They point  out  that certain  aspects  of  the respondent’s  working  were  quite satisfactory   but   they  also   emphasise   that   certain deficiencies  were found in his work during these years  for which  he  was duly cautioned.  In the first letter  he  was cautioned  to take more interest in Auto  Manual  Positions’ functioning and against indulging in disrespectful  language towards  superiors.  The petitioner’s capacity for tact  and courtesy  was  described as not satisfactory.  It  was  also observed that he had not taken adequate interest in his job, that   his handling of staff has also not been  satisfactory leading to several complaints, and that there were cases  of delays,  bad  relations and technical neglect,  calling  for improvement.   The  letter dated  15.4.72,  likewise,  after referring to the favourable remarks earned by the respondent emphasised  three aspects on which the petitioner’s  conduct was  unsatisfactory.   He  had  been  warned  for  delay  in disposal  of  complaint  cases, for delay  in  confirming  a deceased  official  and  for not taking  timely  action  for clearance of jungle on "main line Cuddapah-Tadparti."      It  will be clear from the extracts referred to  above, that though the respondent’s conduct was quite  satisfactory till  March 1970, his standard of work had declined  in  the last  two years under review.  In both these years,  it  was found  that he was not taking adequate interest in his  work and  was  responsible for delays of various kinds.   As  has already been pointed out, an order of compulsory  retirement is  not  an  order of punishment.   Fundamental  Rule  56(j) authorises  the  Government  to review the  working  of  its employees at the end of their period of service referred  to therein  and to require the servant to retire  from  service if, in its opinion, public interest calls for such an order. Whether  the conduct of the employee is such as  to  justify such   a  conclusion  is  primarily  for  the   departmental authorities  to decide.  The nature of the  delinquency  and whether it is of such a degree as to require the  compulsory retirement of the employee are primarily for the  Government to  decide  upon.  The courts will not  interfere  with  the exercise  of this power, if arrived at bona fide and on  the basis  of material available on the record.  No  mala  fides have been urged in the present case.  The only suggestion of the High Court is that the record discloses no                                                   343 material  which would justify the action taken  against  the respondent.  We are unable to agree.  In our opinion,  there was  material  which  showed  that  the  efficiency  of  the petitioner  was  slackening  in the last two  years  of  the period under review and it is,  therefore, not possible  for us  to fault the conclusion of the department as being  mala fide,  perverse,  arbitrary or unreasonable.   The  Division Bench seems to have thought that, since the adverse  remarks mentioned in the earlier letter of 29th April, 1971 were not repeated  in the subsequent letter, it should be taken  that they  had been given up subsequently or that the  respondent had  improved in the subsequent year.  We do not think  that this  is a legitimate inference, for the report for  1971-72 only shows that the respondents’ propensity to delay matters persisted  despite the warning of the previous  year.   But, even if one assumes that the High Court was correct on this, the adverse remarks made against the respondent in  relation

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to the period 1971-72 standing by themselves, can constitute sufficient  material  for  the  department  to  come  to   a conclusion  in  the  matter.  It is true  that  the  earlier record  of the respondent was good but if the record  showed that the standard of work of the respondent had declined and was  not satisfactory, that was certainly material  enabling the  department  to come to a conclusion  under  Fundamental Rule 56(j).  We are of opinion that the High Court erred  in setting  aside  the order of compulsory  retirement  on  the basis that there was no material at all on record justifying the action against the respondent.      For  the reasons mentioned above, we allow this  appeal and  set aside the order of the Division Bench  and  restore the  order of the Single Judge of the High Court as well  as the  order of compulsory retirement of the petitioner  dated 29.10.71.  We, however, make no order as to costs. R.P.                                         Appeal allowed.                                                   344