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PETITIONER: STATE OF ORISSA & ORS.

       Vs.

RESPONDENT: RAM CHANDRA DAS

DATE OF JUDGMENT:       08/05/1996

BENCH: K. RAMASWAMY, FAIZAN UDDIN, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      This appeals  by special  arises from  the judgment and order passed  by the  Orissa Administrative Tribunal in O.A. No.340/87 on  July 18, 1992. The respondent while working as Assistant Conservator  of Forests  was compulsorily  retired from service  by proceedings dated August 1, 1983 which came to be challenged by the respondent in the above proceedings. The Tribunal  allowed the  application on three grounds; (1) the respondent was allowed to cross the efficiency bar; (ii) since he  was promoted, after the adverse remarks were made, the records  were wiped  out; and  (iii) the  entire, record overall consideration  thereof was not done  and, therefore, the exercise  of the  power of  compulsory retirement  under Section 71(a) was not valid in law. The question is: whether the view  taken by  the Tribunal  is correct  in law"  It is needless to reiterate that the settled leal 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 corrupt but sufficiency 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,  have  to  consider  the  entire record  of  the  Government  servant  including  the  latest reports.      Rule 71  (a) of  the Orissa  Service Code  empowers the Government to do the needful and reads as under:      "Rule-71(a) -  Except as  otherwise      provided in  the other  clauses  of      this rule  the date  of  compulsory      retirement of a Government Servant,      except a  ministerial  servant  who      was in  Government service  on  the      31st  March,   1939  and  Class  IV      Government servant,  is the date on      which he  or she attains the age of

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    50 years  subject o  the  condition      that a review shall be conducted in      respect of  the Government  servant      in the 55th year of age in order to      remain in service up to the date of      the completion  of the  age  of  50      years or  retired on completing the      of 55 years in public interest."      A reading  thereof would  indicate that  the Government has been  empowered, in the public interest, to compulsorily retire a  Government servant  on his attaining the age of 50 years or  on completion of 55 years by review of the service record.      It is  seen that  though the  respondent has  contended that neither  the entire record of service was placed before the Review  Committee, nor  the Committee had gone into, nor had the  advantage of it; and it considered only the adverse remarks for  the years  1980-81 and 1981-82 in the rejoinder affidavit filed  in this  Court, it  was specifically stated that the  entire record  of service  from 1964-65 to 1981-82 and also the pending proceedings in the departmental enquiry against  the   respondent  were  placed  before  the  Review Committee and  the same  were duly  considered by  it. It is also seen that when the case was argued before the Tribunal, the copy  of proceedings  and report of the Review Committee and record was produced. The Tribunal had also noted in para 5 of the order thus:      "Learned    Government     Advocate      produced before  us a  copy of  the      proceedings of the Review Committee      meeting held  on 8.6.83. On perusal      of  the  same,  we  find  that  the      Committee  perused   the   C.C.Rs.,      entries of  the applicant  and took      consideration    the    allegations      against  him  in  the  departmental      proceedings on charges of misses of      powers, suppression  of facts, etc.      which were  pending enquiry  before      the Administrative  Tribunal on the      basis of  the aforesaid  materials,      the committee felt that continuance      of  the   applicant  in  Government      service  would  not  be  in  public      interest   and,   therefore,   they      recommended  that   he  should   be      prematurely retired."      It is contended for the respondent that adverse entries for  the   two  years   referred  to   earlier  and  pending departmental  proceedings   would  not   be  sufficient   to compulsorily retire  the Government  servant on  the premise that after  promotion they would become irrelevant and minor penalty was  imposed. It is true that the Government servant was allowed  to cross  the efficiency  bar to  enable him to avail the  benefits  to  draw  higher  scale  of  pay  after crossing the  efficiency bar.  The adverse  remarks made are after promotion.  Even otherwise,  the remarks  form part of service record  and character role. The record of enquiry on conduct also  would be material. Though minor penalty may be imposed  on   given  facts   and  circumstances  to  act  of misconduct, nevertheless  remains part  of  the  record  for overall  consideration   to  retire   a  Government  servant compulsorily. The  object always  is  public  interest.  The material question  is: whether  the entire record of service was considered  or not?  It is not for the court/tribunal to

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see whether  the decision  of the Government to compulsorily retire the Government servant is justified or not. It is for the Government  to consider  the  same  and  take  a  proper decision in  that behalf.  As stated  earlier, it is settled law that  the Government  is required to consider the entire record of  service Merely because a promotion has been given even after  adverse entires were made, cannot be a ground to note that  compulsorily retirement of the Government servant could  not   be  ordered.   The  evidence  does  not  become inadmissible or  irrelevant as  opined by the Tribunal. what would be  relevant is whether upon that state of record as a reasonable prudent  man would  the Government  or  competent officer reach that decision. We find that self-same material after promotion  may not be taken into consideration only to deny him  further  promotion,  if  any.  But  that  material undoubtedly would be available to the Government to consider the  overall   expediency  or   necessity  to  continue  the Government  servant  in    service  after  he  attained  the required length  of service  or qualified  period of service for pension. It is also made clear that in this case adverse entries were  made only  after promotion  and not earlier to promotion. Compulsory  retirement is not a punishment. He is entitled to all the pensionary benefits.      Under these  circumstances, we  are of  the  considered view that the Tribunal was wholly unjustified in interfering with the decision to retire the respondent compulsorily from service on the aforesaid grounds.      The  appeal   is  accordingly   allowed  but,   in  the circumstances, without costs.