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PETITIONER: NARASINGH PATNAIK

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT:       02/04/1996

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) NANAVATI G.T. (J)

CITATION:  1996 SCC  (3) 619        JT 1996 (3)   754  1996 SCALE  (3)227

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.C. Agrawal, J.      This appeal  is directed against judgment of the Orissa Administrative Tribunal  (hereinafter referred  to  as  ’the Tribunal’) dated  September 28,  1987 in O.A. No. 44 of 1986 filed by  the appellant  assailing the  order dated March 5, 1986 regarding his premature retirement from service.      The appellant  joined service  as an Assistant Engineer in the  Irrigation Department of the Government of Orissa on April 1,  1956. He  was promoted as Executive Engineer on ad hoc basis  on March 2, 1962 and in 1963 his promotion on the post of  Executive Engineer  was regularized after obtaining the concurrence  of the Orissa Public Service Commission. On May 21,  1978 he  was promoted as Superintending Engineer on ad hoc  basis and the said promotion was regularized in 1979 in consultation  with the  Orissa Public Service Commission. On November  30, 1984  the appellant  was promoted  as Chief Engineer (Irrigation) on ad hoc basis and the said promotion was regularized  on the  recommendation of the Orissa Public Service Commission  on August 23, 1985. By order dated March 5, 1986 the appellant was compulsorily retired from service. The order  of compulsory  retirement of  the  appellant  was passed in  exercise of  the powers  conferred by  the  first proviso to  Rule 71(a)  of the  Orissa  Service  Code  which empowers the  State  Government  to  compulsorily  retire  a Government servant  after his  attaining the age of 50 years or  his   completion  of  25  years  service  if  the  State Government is  of the  opinion that his further retention in service was  not in  public interest.  In the petition filed before the  Tribunal the  appellant has submitted that there was no  material before  the State  Government to  form  the requisite  opinion   for  his   compulsory  retirement  from service. The  said contention  has not  been accepted by the Tribunal.      The order of compulsory retirement of the appellant was

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passed on  the basis  of the  recommendations  made  by  the Review Committee duly constituted for that purpose. The said Review Committee  in its  meeting held  on February 15, 1986 reviewed the  service record of five officers, including the appellant,  who  had  completed  50  years  of  age  and  it recommended premature  retirement of the appellant. From the proceedings of  the said  meeting of the Review Committee (a copy of  which has  been placed  before us  by  the  learned Advocate General  appearing for the State of Orissa) we find that the  recommendations of  the Review Committee are based on following circumstances :- (1)  There  were  adverse  entries  in  annual  confidential reports of the appellant for the years 1975-76 and 1977-78, (2) A  vigilance case  has been  registered by the Vigilance Department  against   the  appellant   for   possession   of properties disproportionate to his known sources of income. (3) The  appellant  has  also  been  asked  to  explain  the allegation of  corruption during his incumbency as Executive Engineer, Balimela Dam Project. (4) Charges  have been  framed against  him  for  committing irregularities  in   splitting  up   the  work   during  his incumbency as  Superintending Engineer,  Central  Irrigation Circle. (5) His  explanation has  also been asked for placing orders with a  firm in  Calcutta for  supply of  20 tarpaulins at a cost of  Rs. 37,759.66  paise without  following  the  codal formalities  and   without    proper  tender  enquiries  for ascertaining the lowest available rate during his incumbency as Superintending Engineer, Central Irrigation Circle. (6) Proceedings  have also  been  started  against  him  for taking up work of improvement at Kaushalayagang Fishery farm at an  estimated cost of Rs. 4,22,565/- and for splitting up the contract  into two  to bring  this within  the financial limit of  his power  without obtaining  the approval  of the Chief Engineer  for splitting up the work and thus violating the   provisions of the Orissa P.W.D. code. The matter being referred to  the Administrative  Tribunal for enquiry by the G.A. (Vigilance)  Department,  the  Administrative  Tribunal recommended to demote the appellant to the rank of Executive Engineer but  the Government after careful consideration had Administrative Tribunal  recommended to demote the appellant to the  rank of  Executive Engineer but the Government after careful consideration  had decided  to  reduce    his  three increments. (7)  He   was  asked   to  explain   the  charge   that   as Superintending Engineer,  Central Irrigation  Circle in  the year 1981,  he committed  irregularities’ in  the matter  of disposal of  50  m.t.  of  scrap  steel.  He  submitted  his explanation and the matter is pending further enquiry.      It has  been submitted  by Shri Jatin Das, the  learned counsel appearing  for the  appellant, that in the vigilance case (circumstance  No. 2),  which  was  registered  by  the Vigilance   Department    for   possession    of    property disproportionate to  his known  sources of  income, a  final report was  submitted by  the police  after  completing  the investigation and  the same  has been  accepted by the Chief Judicial  Magistrate,   Cuttack  by   order  dated  February 29,1988. As regards circumstance No. 3 wherein the appellant was asked  to explain  allegations of  corruption during his incumbency as  Executive Engineer,  Balimela Dam Project, it has been  submitted by  the appellant that on the receipt of preliminary explanation  and after  taking the  view of  the Engineer-in-Chief the contemplated proceedings were dropped. With regard to circumstance No. 4 about charges being framed against  the  appellant  for  committing  irregularities  in

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splitting  up   the   works   during   his   incumbency   as Superintending Engineer,  Central Irrigation  Circle, it has been submitted  that after explanation has been submitted by the  appellant   no  further  action    was  taken  and  the proceedings  were   dropped.  The   matter  referred  to  in circumstance No. 5 was also dropped. As regards circumstance No. 6  relating to  the proceedings  initiated  against  the appellant in  respect of Kaushalayagang Fishery farm, it has been  submitted  that  at  the  time  when  the  matter  was considered  by   the  Review  Committee  the  order  of  the Government  imposing   the  penalty   of  withholding  three increments on  the appellant  had not  been intimated to the appellant and  that thereafter  the appellant had challenged the said  order by  filing a petition (O.A. No. 487 of 1988) before the Orissa Administrative Tribunal which petition has been allowed  by the  Tribunal by judgment dated December 4, 1991 and  the order  of the  State Government  imposing the said penalty  has been  quashed. As regards circumstance No. 7, it  has been submitted that the proceedings in the matter of disposal  of 50 m.t. of scrap steel has been dropped. The dropping of the proceedings in respect of circumstances Nos. 3, 4,  5 and  7 has not been disputed by the respondent. Nor is the  submission of the final report in the Vigilance case (circumstance  No.  2)  and  its  acceptance  by  the  Chief Judicial  Magistrate  as  well  as  quashing  of  the  order imposing the  penalty of  withholding  of  three  increments (circumstance No.  6) disputed  by the  respondent. It would thus appear  that apart  from the  adverse entries  for  the years 1975-76  and 1977-78  the other circumstances on which reliance was placed by the Review Committee were proceedings wherein either  explanation had  been  asked  for  from  the appellant or  where the  explanation had  been given and the matter was  under consideration  of the  authorities and all those proceedings  were subsequently dropped. Similarly, the vigilance  case   which  had  been  registered  against  the appellant by  the Vigilance  Department  for  possession  of properties disproportionate  to his  known sources of income was at the investigation stage at that time and subsequently after completing  the investigation  the appellant  has been exonerated and the final report has been submitted which has been accepted by the Chief Judicial Magistrate, Cuttack. The penalty of withholding of three increments which was imposed by the  State Government on the appellant in the proceedings relating to  work of  improvement in  Kaushalayagang Fishery farm has been quashed by the Orissa Administrative Tribunal.      The only  material which remains is the adverse entries in the annual confidential reports for the years 1975-76 and 1977-78. In  the year  1975-76 the Additional Chief Engineer had recorded the did not put his heart and soul to work". In the year  1977-78 the  Reporting Officer had recorded "he is callous towards  accounts and  audit and  does work in field errectically splitting up work without competent authority". The countersigning officer made the following remarks :      "During the  period of  report,  he      had committed  a lot  of  financial      irregularities  which   could  have      been avoided  and he  did not apply      his mind at work."      These remarks  relate to  the period when the appellant was posted as Executive Engineer. Thereafter he was promoted as Superintending  Engineer in  May 1978, and in 1984 he was promoted  as   Chief  Engineer   (Irrigation).  As   regards compulsory retirement  from service  the legal  position  is well settled :      "The  government   (or  the  Review

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    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 tc 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      favorable   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."      [See : Baikuntha Nath Das & Anr. v.      Chief  District   Medical  Officer.      Baripada &  Anr., 1992 (2) SCC 299,      at pp. 315-316]      In the instant case, after the remarks were made in the confidential reports  for the years 1975--76 and 1977-78 the appellant had  been promoted  on the  post of Superintending Engineer in  the year 1978 and thereafter Executive Engineer in 1984  It has  been pointed  out that  in respect of years prior to  1975-76, in  the year  1976-77 and  in  the  years subsequent to  1977-78 the  performance of the appellant was appraised as  "good" In  these circumstances,  we are of the view that  the adverse  remarks in  the annual  confidential reports for the years 1975-76 and 1977-78 referred to above, by themselves,  cannot sustain  the opinion  leading to  the compulsory retirement  of the  appellant/on the  basis  that further   retention of  the appellant  in service was not in public interest  We are,  therefore, unable  to  uphold  the order of  compulsory retirement  dated March 5, 1986 and the same has to be set aside.      The date of birth of the appellant is April 26, 1933 In the normal  course he  would have  retired on April 30, 1991 after attaining  the age  of superannuation of 58 years As a result of the quashing of the order of compulsory retirement dated March  5,1986, the appellant has to be treated to have continued in service till April 30, 1991 and for the purpose of pension  and other  retrial benefits  the pay  should  be fixed as  on April  30, 1991  and the  pension  and  retrial benefits payable  to him  should computed  on that  basis As regards arrears  of pay  and other emoluments for the period from March  5, 1986,  the date  of the  order of  compulsory retirement, till  April 30,  1991, the date of his attaining the age  of superannuation,  we are  of the view that having regard to  the facts  and  circumstances  of  the  case  the appellant should  be  paid  50  per  cent  of  the  pay  and emoluments payable to him for this period.      In the  result, the  appeal is allowed, the judgment of the Tribunal  dated September  28, 1987 is set aside and the order dated  March 5,  1986 for compulsory retirement of the appellant from  service is  quashed. The  appellant will  be treated to have continued in service till April 30, 1991 for the purpose  of pension  and other  retrial benefits His pay shall be  fixed as  on April  30, 1991 and pension and other retrial benefits  payable to  him shall  be computed on that basis. For the period from March 5, 1986 till April 30, 1991 the appellant  shall be  paid 50  per cent  of the  pay  and emoluments payable  to him.  The said  amount as well as the

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arrears payable to him on account of revision of pension and retrial benefits  shall be  paid to  the appellant  within a period of three months. There will be no order as to costs.