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PETITIONER: BAIDYANATH MAHAPATRA

       Vs.

RESPONDENT: STATE OF ORISSA & ANR.

DATE OF JUDGMENT10/08/1989

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) KANIA, M.H.

CITATION:  1989 AIR 2218            1989 SCR  (3) 803  1989 SCC  (4) 664        JT 1989 (3)   360  1989 SCALE  (2)271  CITATOR INFO :  *          1992 SC1020  (1,23,25,29)

ACT:     Orissa Service Code: Rule 71(a)--Compulsory  retirement- Adverse  entries in service record--Of no significance  when government  servant  is promoted: belated  communication  of adverse  entries defeat their object: it is not  permissible to consider adverse entries representation against which  is pending.     Natural  Justice--Members  of a Tribunal not to  sit  in judgment on their own decisions taken administratively.

HEADNOTE:     The  appellant had joined service in the Orissa  Govern- ment  as an Assistant Engineer in 1955, and in 1983  he  was working on the post of Superintending Engineer. Since he had completed 50 years of age, a Review Committee considered his service record for determining his suitability for retention in  service  in accordance with the first  proviso  to  Rule 71(a)  of the Orissa Service Code. On the recommendation  of the Review Committee the State Government by its order dated 10.11.1983 pre-maturely retired the appellant from  service. The appellant filed a civil suit challenging the validity of his  pre-mature retirement. The suit was transferred to  the Administrative  Tribunal. The Tribunal held that the  recom- mendation of the Review Committee was bona fide and did  not suffer from any legal infirmity.     Before this Court, it was contended that the recommenda- tion of the Review Committee was vitiated as it was  founded on  irrelevant and inadmissible material. It was urged  that the  Review  Committee had considered a  number  of  adverse remarks contained in the appellant’s service record for  the remote  past years, and had also considered adverse  entries relating to recent years although those adverse entries  had not become final.     Allowing  the  appeal  and setting aside  the  order  of premature retirement of the appellant, this Court,     HELD:  (1) The purpose of the Rule conferring  power  on the Government to retire Government servants prematurely  is to energise 804

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its machinery by ’chopping of the dead-wood’. [807C] Union of India v. J.N. Sinha, [1971] 1 SCR 791.     (2)  When a Government servant is promoted to  a  higher post  on  the  basis of merit and  selection  prior  adverse entries  if any contained in his service record  lose  their significance  and  those remain on record as  part  of  past history.  It  would,  therefore, be unjust  to  curtail  the service  career of Government servant on the basis of  those entries  in the absence of any significant fail in his  per- formance after his promotion. [807F]     (3)  If  the  adverse remarks awarded  to  a  Government servant  are  communicated to him after several  years,  the object  of communicating entries is defeated. It is,  there- fore,  imperative  that  the adverse entries  awarded  to  a Government  servant  must he communicated to  him  within  a reasonable  period to afford him opportunity to improve  his work  and  conduct and also to make  representation  in  the event  of the entry being unjustified. In the instant  case, belated communication of the entries resulted into denial of reasonable  opportunity  to  the appellant  to  improve  his performance. [808A-B]     (4)  The appellant’s representation against the  adverse entries  relating to a number of years was rejected  on  the ground that the representation was barred by time. Since the communication  of  the  adverse entries  was  itself  highly belated,  the representation against those  adverse  remarks should have been considered on merits and the same could not be rejected on the alleged ground of delay as the Government itself  was guilty of inordinate delay in communicating  the adverse remarks to the appellant. [808D]     (5)  The  appellant had a right to  make  representation against the adverse entries within six months period. There- fore,  the adverse entries awarded to the appellant  in  the years  1981-82 and 1982-83 could not be taken  into  account either by the Review Committee or by the State Government in forming the requisite opinion contemplated by Rule  71(1)(a) of the Orissa Service Code, before the expiry of the  period of six months. It is settled view that it is not permissible to  prematurely retire a Government servant on the basis  of adverse  entries,  representations  against  which  are  not considered and disposed of. [809C-D, 808H-809A] Brij Mohan Chopra v. State of Punjab, [1987] 2 SCR 583. (6) The Members of the Tribunal must follow rules of natural 805 justice  in administering justice like judges.  They  should not  sit in judgment on their own decisions. In the  instant case  Shri  Gian  Chand, who had  administratively  taken  a decision  as Chief Secretary against the Appellant,  consid- ered the matter judiciary as the Chairman of the Administra- tive Tribunal, thereby he acted as a Judge of his own cause. While  it  is true that there is no allegation  of  personal bias  against Shri Gian Chand, he may have acted bona  fide, nevertheless, the principles of natural justice, fair  play, and  judicial  discipline required that he should  have  ab- stained from hearing the appellant’s case. [810B, 809F-H]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3050  of 1989.     From the Judgment and Order dated 21.12.87 of the Orissa Administrative Tribunal in T.A. No. 161 of 1987..               P.P. Rao and C.S.S. Rao for the Appellant.               P.N. Misra and A.K. Panda for the Respondents.

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             The Judgment of the Court was delivered by               SINGH, J. Leave granted.     This  appeal  is directed against the  judgment  of  the Orissa  Administrative  Tribunal, Bhubaneswar  dated  21.12. 1987  dismissing the appellant’s suit challenging  his  pre- mature retirement from service.     The  appellant,  a qualified  Electrical  Engineer  with training  in West Germany, joined service of Orissa  Govern- ment as an Assistant Engineer (Electrical) in 1955. In  1961 he was promoted to the rank of Executive Engineer  (Electri- cal)  and deputed to the Orissa State Electricity Board.  In March,  1976 he was promoted to the post  of  Superintending Engineer  (Electrical) on the basis of merit. In 1979  while working on the post of Superintending Engineer  (Electrical) he was allowed to cross the Efficiency Bar with effect  from 1.1.1979.  He also officiated on the post of Chief  Engineer (Electrical) in Orissa State Electricity Board. Since he had completed 50 years of age a Review Committee constituted  by the  Government of Orissa considered his service  record  in October, 1983 for determining his suitability for  retention in  service  in accordance with the first  proviso  to  Rule 71(a)  of the Orissa Service Code. On the recommendation  of the 806 Review  Committee  the State Government by its  order  dated 10.11.1983 pre-maturely retired the appellant from  service. He  filed a civil suit before the Subordinate Judge,  Bhuba- neswar challenging the validity of his pre-mature retirement on  a number of grounds. On the Constitution of  the  Orissa Administrative  Tribunal  the suit was  transferred  to  the Administrative  Tribunal, Bhubaneswar, under Section  29  of the Administrative Tribunals Act. The Tribunal by its  order dated 21.12.1987 dismissed the suit and upheld the  validity of appellant’s pre-mature retirement. Hence this appeal.     The  Tribunal held that the Review Committee on  an  as- sessment  of  the  overall performance  of  the  appellant’s conduct  had  bona fide made recommendations  to  the  State Government that the appellant’s retention in service was not in  public  interest,  and in pursuance  thereof  the  State Government retired the appellant pre-maturely. The  Tribunal further  held that the order of pre-mature  retirement  does not suffer from any legal infirmity. Learned counsel for the appellant urged that the Tribunal committed serious error in upholding  the order of pre-mature retirement as the  recom- mendation  of  the Review Committee was vitiated as  it  was rounded  on  irrelevant and inadmissible material.  In  this connection,  he urged that the Review Committee had  consid- ered  a  number of adverse remarks contained in  the  appel- lant’s service record for the remote past years which had no relevance  and  it had further  considered  adverse  entries relating to the recent years although those adverse  entries had  not become final as the representations  against  those adverse  entries  had not been considered of  by  the  State Government. He urged that while considering overall perform- ance of the appellant the Review Committee was influenced by the  entries of remote past, which had lost  their  signifi- cance  as  inspite of those entries the appellant  had  been promoted  to higher post on merit and he had also been  per- mitted  to  cross Efficiency Bar. Before we  consider  these submissions it would be pertinent to refer of the  recommen- dations of the Review Committee which are as under:               "From  the year 1969-70 to 1982-83, Shri  Bai-               dyanath Mohapatra has got adverse remarks  for               the years 1969-70, 1970-71, 1972-73,  1975-76,               1976-77, 1981-82 and 1982-83. Although he  was

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             an  intelligent officer, he did not apply  his               mind  and did not bestow adequate zeal in  his               work. He did neither assume responsibility nor               did he work hard for which the Chief  Engineer               had  to deal with his Executive Engineers  and               Assistant Engineers directly. He was found  to               be  too cursory in dealing with  the  problems               and adept in               807               putting the responsibilities for  deficiencies               on others. His performance during most of  the               years was found to be of average standard. The               Committee,  considering his  overall  perform-               ance, was of the view that his continuance  in               service  is not desirable in  public  interest               and  that  he  be  retired  prematurely.  This               officer  would have retired on  superannuation               on 30.9.1989."     No exception can be taken to the Government’s opinion in retiring  the  appellant pre-maturely on the  basis  of  the aforesaid  recommendation  of  the Review  Committee  as  it clearly indicated that the appellant’s retention in  service was not in public interest. The purpose of the Rule  confer- ring  power on the Government to retire Government  servants pre-maturely  is to energise its machinery by  "chopping  of the  dead-wood" as held by this Court in Union of  India  v. J.N.  Sinha, [1971] 1 SCR 791. The question which falls  for consideration is whether the Review Committee was  justified in  making its recommendations on the basis of  adverse  en- tries  awarded  to the appellant in remote  past  especially when the appellant had been promoted to the post of Superin- tending  Engineer in 1976 and he had further been  permitted to cross Efficiency Bar in 1979. The adverse entries  relat- ing to the years 1969-70, 1970-71, 1972-73 and 1975-76,  had lost all significance, because inspite of those entries  the appellant was considered to be an intelligent and  efficient officer  and  in that view he was promoted to  the  post  of Superintending  Engineer. If those entries did  not  reflect deficiency  in appellant’s work and conduct for the  purpose of promotion, it is difficult to comprehend as to how  those adverse  entries could be pressed into service for  retiring him pre-maturely. When a Government servant is promoted to a higher  post  on the basis of merit and  selection,  adverse entries  if any contained in his service record  lose  their significance  and  those remain on record as  part  of  past history. It would be unjust to curtail the service career of Government  servant  on the basis of those  entries  in  the absence of any significant fall in his performance after his promotion.     The  adverse  entries for the  years  1969-70,  1970-71, 1972-73 and 1975-76 were communicated in a lot to the appel- lant in 1978, although under the instructions issued by  the State Government the adverse entries must be communicated by December of each year. The purpose of communicating  adverse entries to the Government servant is to inform him regarding his  deficiency  in work and conduct and to  afford  him  an opportunity to make, amend, and improvement in his work ,and further if the entries are not justified the communication 808 affords  him an opportunity to make representation.  If  the adverse remarks-awarded to a Government servant are communi- cated to him after several years, the object of  communicat- ing entries is defeated. It is therefore imperative that the adverse  entries  awarded to a Government  servant  must  be communicated to him within a reasonable period to afford him

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opportunity to improve his work and conduct and also to make representation  in the event of the entry being  unjustired. In the instant case, adverse entries relating to a number of years were communicated to the appellant in one 101 under  a letter  dated 27.2.1978 contrary to the instructions  issued by  the  State Government as contained in  Circular  No.  29 dated  19.2.1953. Belated communication of the  entries  re- sulted  into denial of reasonable opportunity to the  appel- lant  to  improve  his performance.  Further  since  adverse remarks for several years were communicated with  inordinate delay it was impossible for the appellant to make an  effec- tive representation against the same. The appellant’s repre- sentation  against  the aforesaid entries  was  rejected  on 12.3.1981  on the ground that the representation was  barred by time. Since the communication of the adverse entries  was itself  highly  belated  the  representation  against  those adverse  remarks should have been considered on  merits  and the  same  could not be rejected on the  alleged  ground  of delay  as  the Government itself was  guilty  of  inordinate delay in communicating the adverse remarks to the appellant.     Adverse remarks relating to the years 1981-82 and  1982- 83 were taken into account by the Review Committee in formu- lating  its  opinion against the appellant’s  ,retention  in service.  The appellant’s representation against  those  en- tries  had  not been considered, yet  the  Review  Committee placed  reliance  on  those entries. In  fact,  the  adverse remarks for the year 1981-82 were communicated to the appel- lant under the letter dated 21.6.1983 which was received  by him on 5.7.1983, and as regards the adverse remarks for  the ’year 1982-83 these were communicated to the appellant under the  letter  dated 29.7.1983 which was received  by  him  on 9.8.1983.  He made representation to the Government  against the  aforesaid adverse remarks on 1.11.1983 but  before  the representation  could  be considered by the  Government  the impugned   order  of  pre-mature  retirement  was  made   on 10.11.1983. These facts make it amply clear that the  appel- lant’s representation against the aforesaid adverse  remarks for  the years 1981-82 and 1982-83 was pending and the  same had  not  been  considered or disposed of on  the  date  the impugned order was issued. It is settled view that it is not permissible  to pre-maturely retire a Government servant  on the basis of adverse entries, representations against 809 which  are not considered and disposed of. See.  Brij  Mohan Chopra  v.  State  of Punjab, [1987] 2 SCR  583.  When  this aspect  was pressed before the Tribunal, it took a  peculiar view  in holding that since the representation had not  been made  before  the  date on which the  Review  Committee  had considered the appellant’s case, the Committee need not have waited  for the disposal of the  appellant’s  representation and  it  was free to take into account the  adverse  remarks awarded  to the appellant in the years 1981-82 and  1982-83. The appellant placed reliance on the decision of this  Court in  Brij  Mohan Chopra’s case but the Tribunal by  some  in- volved  logic avoided giving effect to the law laid down  by this Court. It is not disputed that in the State of Orissa a Government  servant has right to make representation  within six  months  from the date of communication of  the  adverse remarks.  The  appellant had right  to  make  representation against the adverse entries within six months period, there- fore, the adverse entries awarded to him in the years  1981- 82 and 1982-83 could not be taken into account either by the Review  Committee or by the State Government in forming  the requisite  opinion as contemplated by Rule 71(1)(a)  of  the Orissa Service Code, before the expiry of the period of  six

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months.  Since the period prescribed for making  representa- tion  against the adverse remarks for the years 1981-82  and 1982-83  had not expired, the proper course for  the  Review Committee should have been not to consider those entries  or in the alternative, the Review Committee should have  waited for the decision of the Government on the appellant’s repre- sentation. The view taken by the Tribunal is not sustainable in law.     There  is a disturbing feature of this case which  viti- ates  Tribunal’s  order. Shri Gian Chand,  Chairman  of  the Tribunal,  ex-Chief  Secretary of the State of  Orissa,  was member  of  the Review Committee which  made  recommendation against the appellant for his pre-mature retirement, and  in pursuance  thereof the State Government had issued  the  im- pugned order. It appears that Sh. Gian Chand, had later been appointed  as Chairman of the Administrative Tribunal.  Shri Gian Chand, participated in the proceedings of the Tribunal, and he is party to the decision of the Tribunal. These facts show  that Mr. Gian Chand, who had administratively taken  a decision against the appellant, considered the matter  judi- cially as a Chairman of the Tribunal, thereby he acted as  a Judge  of his own cause. While it is true that there  is  no allegation  of personal bias against Sh. Gian Chand, he  may have acted bona fide, nonetheless, the principles of natural justice, fair play, and judicial discipline required that he should  have  abstained from hearing the  appellant’s  case. While considering the appellant’s case the Tri- 810 bunal  exercised judicial powers and it was required to  act judicially, as the jurisdiction of the Civil Court and  High Court  have been excluded and vested in  the  Administrative Tribunal.  The Members of the Tribunal must follow rules  of natural  justice in administering justice like Judges,  they should not sit in judgment on  their own decisions. Sh. Gian Chand  was  disqualified to hear the appellant’s  case.  The order of the Tribunal is vitiated on this ground but as  the appellant  had not raised any objection before the  Tribunal against  the  participation  of Sh. Gian Chand,  we  do  not consider  it necessary to grant relief to the  appellant  on this ground.     For  the  aforesaid reasons we hold that  the  order  of pre-mature retirement is vitiated and the Tribunal committed error  in upholding the same. We accordingly allow  the  ap- peal,  set aside the order of the Tribunal dated  21.12.1987 and  also  the order of the State  Government  dated  10.11. 1983.  The appellant is entitled to reinstatement  with  all consequential benefits of service in addition to the costs. R.S.S.                                   Appeal allowed. 811