published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40775
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8245/2013
(Arising out of Special Leave Petition (Civil) No. 17760 OF 2013)
Rajasthan State Road Transport Corp. & Ors. ………Appellant(s)
Versus
Babu Lal Jangir
….....Respondent(s)
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
2. Rajasthan State Road Transport Corporation is the appellant in
the instant petition through of which it impugns the validity of the
orders dated 16.1.2013 passed by Division Bench of the High Court of
Judicature For Rajasthan, Bench at Jaipur.
The Division Bench has
dismissed the Writ Appeal of the appellant and confirmed the orders of
the Additional Judge passed in the Writ Petition filed by the
respondent herein, quashing the orders of compulsory retirement of the
respondent with the direction that the respondent would be deemed to
be in the service as if the order of compulsory retirement had not
been passed and as a consequence the respondent is held entitled to
all consequential benefits.
3. The Respondent joined the services of the appellant on the post
of Driver on 14.2.1977. He was placed on probation for a period of
one year.
4. The appellant has framed Standing Orders for its employees known
as the Rajasthan State Road Transport Workers and workshop Employees
Standing Orders, 1965 (hereinafter to be referred as the ‘Standing
Orders’). These orders are duly certified by the Authority under the
provisions of Industrial Employment (Standing Orders) Act, 1946.
Subsequently, there was an amendment in these Standing Orders and
certain new clauses under rule 18, were inserted introducing the
provision of compulsory and voluntary retirement. The same are
reproduced herein below:
“18-D(1) COMPULSORY RETIREMENT
Notwithstanding anything contained in the regulations the
Corporation may if is of the opinion that it is in the interest
of the Corporation to do so, have the absolute right to retire
any Corporation employee after, he has attained the age of 50
years or on the date he completes 25 years of service whichever
is earlier, or on any date thereafter, by giving him 3 months
notice in writing or three months pay and allowances in lieu
thereof.
18-D (2) VOLUNTARY RETIREMENT
Notwithstanding anything contained here in before
Corporation employee may after giving three months previous
notice in writing, retire from the service on the date on which
he completes 20 years service on the date he attains the age of
45 years or on any other date thereafter.”
5. It is clear from the above that the clauses pertaining to
compulsory retirement gives the Petitioner-Corporation absolute right
to retire any employee after he attains the age of 50 years or on
completion of 25 years service whichever is earlier.
6. A Screening Committee was constituted by the Petitioner
Corporation in 27.3.2002 to look into the conduct and continuance of
four employees who had attained the age of 50 years or had completed
25 years of service. Among these four persons, name of the Respondent
also appeared.
7. This committee, on perusal of the record of the respondent,
recommended his compulsory retirement. The Review Committee held its
meeting on 8.4.2002 to review the report of the Screening Committee
and after perusal of the report of the Screening Committee, the Review
Committee approved the proposal of the Screening Committee. Based on
the recommendation of the Review Committee, the Competent Authority
passed the orders dated 9.4.2002, compulsorily retiring the respondent
from service. As three months previous notice is required under rule
18-D (1) of the Standing Orders, in lieu thereof the respondent was
sent three months’ salary cheque.
8. Challenging this action of the appellant, the respondent filed
the Writ Petition in the High Court of Judicature for Rajasthan. The
appellant herein (Respondent in the Writ Petition) appeared and
decided a Writ Petition by filing counter affidavit. It was the
highlight of the petitioner’s defense that the service record of the
respondent showed a dismal picture, in as much as between the year
1978-1990, nearly 19 cases of misconduct were foisted upon the
respondent which resulted into some or the other kind of penalty like
admonition or stoppage of pay or annual grade increment for a limited
period. So much so, in the year 1992 a criminal case against the
respondent was initiated under Section 279 read with Section 304 (a)
of IPC and Section 18/118 of the Motor Vehicles Act. In that case he
was given the benefit of doubt and released. However, a departmental
inquiry was held in which penalty of imposition or stoppage of two
years’ increment was imposed upon him. A representation against this
penalty was also dismissed. In the year 1999 another criminal case was
instituted against the Respondent because of the accident of the bus
of the petitioner which was driven by the Respondent as Driver. The
victims had also filed their claim before the Motor Claim Tribunal
(MACT) and the Appellant -Corporation had to suffer heavy loss by
paying compensation in the said case. However, in criminal case, the
Respondent was acquitted. The appellant also pointed out that the
service record of the Respondent revealed that he was also involved in
the another accident in the year 1999 in which he suffered serious
burn injuries. Because of this, he had moved an application
requesting the Petitioner-Corporation to give him light job.
Accordingly, he was posted as staff car Driver at Head Office. This
job was given to him virtually showing mercy, which did not entail
regular hard work. It was thus, argued by the Appellant -Corporation
that the aforesaid entire service record was gone into by the
Screening Committee as well as the Review Committee on the basis of
which the decision was taken to retire the Respondent prematurely.
9. The learned Single Judge of the High Court, however, did not
eschew the aforesaid submission of the Appellant -Corporation giving
the reason that the various acts of misconduct pointed out by the
Petitioner-Corporation against the Respondent herein pertained to the
period between 1978-90, whereas the order of compulsory retirement was
passed 12 years thereafter i.e. on 9.4.2002. In the opinion of the
learned Single Judge, thee minor misconducts of the period more than
12 years before the compulsory retirement were not sufficient to come
to the conclusion that the compulsory retirement of the respondent was
in public interest. The learned Single Judge also observed that
record of immediate past period was not looked into at all and on the
basis of current purpose it could not be said that respondent had
become deadwood or had become inefficient who needed to be weeded out.
It also It also remarked that the appellant corporation was not able
to point out any deficiency in the work and conduct of the Respondent
for over 10 years immediately preceding his compulsory retirement. It
was thus, unjust, unreasonable and arbitrary to retire the respondent
prematurely on the basis of old and stale material. For coming to this
conclusion the learned Single Judge drew sustenance from the judgment
of this Court in Brij Mohan Singh Chopra v. State of Punjab 1987 (2)
SCC 188.
10. Not satisfied with the aforesaid outcome, the appellant
preferred Writ Appeal before the Division Bench but without any
success as the said Writ Appeal has been dismissed by the Division
Bench,
echoing the reasons given by the ld. Single Judge. While upholding the
order of the learned Single Judge, the Division Bench also noted that
the recorded date of birth, at the time of entry of the Respondent
into service, was 7.7.1951. Since the normal age of superannuation is
60 years, the respondent would have continued in service till the year
2011. Since he was prematurely retired and that retirement has been
set aside with the direction that he deems to be in service, the
respondent would have to be treated in service till July, 2011.
However, before the Division Bench, the respondent raised the dispute
about his date of birth contending that his actual date of birth was
21.1.1957 which was even recorded in some of the official documents.
He thus pleaded that he had right to continue in service even beyond
July 2011 i.e. upto the end of January, 2017.
11. The High Court, however refrained from passing any order on this
aspect and observed that it would be open to the respondent to submit
a proper presentation before the concerned authority of the Appellant
-Corporation who will examine the records of his date of birth and
take a decision thereon. It further directed:
“In case his date of birth is ultimately determined to be
7/7/1951, all consequential benefits following the interference
with the order of compulsory retirement would be released to
him. In the eventuality of his date of birth being determined to
be 21.9.1957, the Corporation would consider his reinstatement
in service.”
12. On the very first day i.e. on 23.8.13, when this petition came
up for hearing, the respondent appeared person. He showed his
willingness to argue the matter himself finally at the admission stage
itself. As this course of action was agreeable to the Counsel for
the petitioner as well, the parties were heard at length.
13. From the narration of facts stated above and specifically from
the perusal of the judgment of the learned Single Judge which is
upheld by the Division Bench on the same reasoning it is apparent
clear that the main reason for setting aside the order of compulsory
retirement is that adverse entries/ minor mis-conducts of the
Respondent related to the period 1978-90 i.e 12 years prior to
premature retirement were taken into consideration and there was no
material whatsoever before this Review Committee in the recent past on
the basis of which, the requisite opinion could be framed that the
premature retirement of the respondent was in public interest. Again,
as pointed above, for arriving at this conclusion, the High Court
extensively relied upon judgment of this Court in Brij Mohan Singh
Chopra (supra).
14. First and foremost argument of the learned Counsel for the
appellant was that judgment of this Court in Brij Mohan Singh Chopra
(supra) was overruled by three member Bench in Baikuntha Nath Das &
Anr. v. Chief District Medical Officer, Baripara & Anr.;1992 (2) SCC
299, and it was specifically recorded so in subsequent judgment in the
case of The State of Punjab v. Gurdas Singh; 1998 (4) SCC 92. This
calls for examination of this argument in the first instance.
15. A reading of Baikuntha Nath judgment would reveal that the main
issue in that case was as to whether the employer could act upon, un-
communicated adverse remarks and whether observance of the principles
of natural justice was necessary before taking a decision to
compulsory retire a government servant. The court answered both the
questions in the negative holding that it was permissible for the
Government to even look into and consider un-communicated adverse
remarks. It was also held that since the premature retirement was not
stigmatic in nature and such an action was based on subjective
satisfaction of the Government, there was no room for importing facet
of natural justice in such a case. In the process of discussion and
giving reasons for the aforesaid opinion, the Court took note of
various judgments. Decision in the case of Brij Mohan Singh Chopra
(supra) was also specifically dealt with. In this case there were no
adverse entries in the confidential records of the appellant for a
period of five years prior to the impugned order of premature
retirement. Within five years there were two adverse entries. However,
these adverse remarks were not communicated to the employee. The order
based on un-communicated adverse entries was set aside on two grounds
namely:
i) It was not reasonable and just to consider adverse entries
of remote past and to ignore good entries of recent past.
If the entries for the period of more than 10 years past
are taken into account it would be act of digging out past
to get some material to make an order against the employee.
ii) Since the adverse entries were not even communicated, it
was unjust and unfair and contrary to principles of natural
justice to retire prematurely a government employee on the
basis of adverse entries which are either not communicated
to him or if communicated, representations made against
those entries are not considered and disposed of.
16. After taking note of the aforesaid grounds on which the order of
compulsory retirement in Brij Mohan Singh Chopra (supra) was set
aside, the Court in Baikuntha Nath Das (supra) dealt with the second
ground alone namely whether principles of natural justice were
required to be followed or it was permissible for the Government to
take into consideration the adverse entries which were either not
communicated to him or if communicated representations made against
those entries were still pending. This second proposition of Brij
Mohan Singh Chopra was held as not the correct proposition in law and
principles of natural justice could not be brought in such a case. The
Court had noted that this reasoning was in conflict with the earlier
judgment in the case Union of India v. Col. J.N. Sinha & Anr. 1970
(II) LLJ 284 and agreed with the view taken in J.N. Sinha’s Case.
17. It clearly follows from the above that in so far as first ground
in Brij Mohan Singh Chopra namely consideration of adverse entries of
remote past was inappropriate to compulsory retire an employee, was
not touched or discussed. In fact, on the facts of the Baikunth Nath
Dass, this proposition did not arise for consideration at all. No
doubt, in Gurdas Singh’s Case, it has been specifically remarked that
the judgment in Brij Mohan Singh Chopra (supra) has been overruled in
Baikuntha Nath (supra). It would be relevant to point out that even
Gurdas Singh was a case relating to un-communicated adverse entries.
Therefore, Brij Mohan Singh Chopra was overruled only on the second
proposition.
18. The fact that the issue as to whether remote past of the
employee can be taken into consideration or not was not dealt with in
Baikuntha Nath Das or Gurdas Singh Case was specifically noticed by
this Court in the case of Badrinath v. Government of Tamil Nadu and
Ors. 2000(8) SCC 395; 2000(6) SCALE 618. That was a case where this
question of taking into consideration the old records came up directly
for discussion. The court discussed the judgment in Brij Mohan Singh
Chopra and pointed out that three judge Bench in Baikuntha Nath Das
overruled Brij Mohan Singh Chopra Case only on the second aspect,
namely non-communication of the adverse reports. In so far as first
aspect, which pertained to considering adverse entries of old period,
the Court also pointed out that in Para 32 of Baikuntha Nath Das Case,
various legal principles/propositions were summed up and drew
attention to principle No.(iv) in that para with which we are
concerned. It reads as under:
“So far as the appeals before us are concerned, the High Court
has looked into the relevant record and confidential records has
opined that the order of compulsory retirement was based not
merely upon the said adverse remarks but other material as well.
Secondly, it has also found that the material placed before them
does not justify the conclusion that the said remarks were not
recorded duly or properly. In the circumstances, it cannot be
said that the said remarks were not recorded duly or properly.
In the circumstances, it cannot be said that the order of
compulsory retirement suffers from mala fides or that it is
based on no evidence or that it is arbitrary.”
19. On that basis following pertinent observations were made in
Badrinath case:
“54. We are however concerned with the first point stated in
Brij Mohan Singh Chopra's case as explained and accepted in
principle (iv) of para 34 of the three Judge Judgment in
Baikunth Nath Das. We have already extracted this passage
in principle (iv) of para 34. It reaffirms that old adverse
remarks are not to be dug out and that adverse remarks made
before an earlier selection for promotion are to be treated
as having lost their 'sting'. This view of the three Judge
Bench, in our view, has since been not departed from. We
shall, therefore, refer to the two latter cases which have
referred to this case in Baikunth Nath Das. The second of
these two latter cases has also to be explained.
55. In the first of these latter cases, namely, Union of India
v. V.R. Seth MANU/SC/0286/1994 : (1994)IILLJ411SC the point
related both to adverse remarks of a period before an
earlier promotion but also to uncommunicated adverse
remarks. It was held that the Tribunal was wrong in holding
in favour of the officer on the ground that uncommunicated
adverse remarks could not be relied upon for purposes of
compulsory retirement. So far as the remarks prior to an
earlier promotion this Court did not hold that they could
be given as much weight as those in later years. The Court,
in fact, relied upon Baikunth Nath Das case decided by
three Judge Bench which had proposition (iv) in para 34 (at
p. 315-316) had clearly accepted that adverse remarks prior
to an earlier promotion lose their 'sting'.
56. The second case is the one in State of Punjab v. Gurdas
Singh MANU/SC/0256/1998 : AIR1998SC1661 . The facts there
were that there were adverse remarks from 1978 prior to
1984 when the officer was promoted and there were also
adverse remarks for the period 18.6.84 to 31.3.85. The
compulsory retirement order was passed on 3.9.87. The said
order was quashed by the Civil Court on the ground that his
record prior to his promotion i.e. prior to 1984 could not
have been considered and two adverse entries after 1984
were not communicated and could not be relied upon. The
three Judge Bench, while clearly setting out proposition
(iv) in para 34 (at p. 315-316) of Baikunth Nath Das which
said that adverse remarks prior to promotion lose their
sting, held that they were following the said judgment and
they allowed the appeal of the State. Following Baikunth
Nath Das, the Bench felt that uncommunicated adverse
remarks could be relied upon and in that case these entries
related to the period after an earlier promotion. That
ground alone was sufficient for the case. There is a
further observation (at p. 99, para 11) that an adverse
entry prior to earning of promotion or crossing of
efficiency bar or picking up higher rank is not wiped out
and can be taken into consideration while considering the
overall performance of the employee during the whole tenure
of service.
57. The above sentence in Gurdas Singh needs to be explained
in the context of the Bench accepting the three Judge Bench
ruling in Baikunth Nath Das. Firstly, this last observation
in Gurdas Singh's case does not go against the general
principle laid down in Baikunth Nath Das to the effect that
though adverse remarks prior to an earlier promotion can be
taken into account, they would have lost their 'sting'.
Secondly, there is a special fact in Gurdas Singh's case,
namely, that the adverse remarks prior to the earlier
promotion related to his "dishonesty". In a case relating
to compulsory retirement therefore, the sting in adverse
remarks relating to dishonesty prior to an earlier
promotion cannot be said to be absolutely wiped out. The
fact also remains that in Gurdas Singh's case there were
other adverse remarks also even after the earlier
promotion, regarding dishonesty though they were not
communicated. We do not think that Gurdas Singh is an
authority to say that adverse remarks before a promotion
however remote could be given full weight in all situations
irrespective of whether they related to dishonesty or
otherwise. As pointed in the three Judge Bench case in
Baikunth Nath Das, which was followed in Gurdas Singh they
can be kept in mind but not given the normal weight which
could have otherwise been given to them but their strength
is substantially weakened unless of course they related to
dishonesty.”
20. If one were to go by the dicta in Badrinath Case, obvious
conclusion would be that even if there are adverse remarks in the
service career of an employee they would lose there effect, when that
employee is given promotion to the higher post and would not be taken
into account when the case of that employee for compulsory retirement
is taken up for consideration, except only those adverse entries in
the confidential reports of that employee which touch upon his
integrity. Thus, Badrinath case interprets principle (iv) in para 32
of Baikunth Dass to mean such adverse remarks for the period prior to
promotion, unless they are related to dishonesty, would be
substantially weekend after the promotion.
21. This interpretation given in Badrinath case, which was the
judgment rendered by two member Bench, has not been accepted by three
member bench of this Court, subsequently, in Pyare Mohan Lal v. State
of Jharkhand and Ors. (2010) 10 SCC 693. After discussing various
judgments, including the judgments referred to by us hitherto, the
Court clarified and spelled out the circumstances in which the earlier
adverse entries/ record would be wiped of and the circumstances in
which the said record, even of remote past would not lose its
significance. It is lucidly conceptualized under the head “Washed Off
Theory” as follows:
“WASHED OFF THEORY
“19. In State of Punjab v. Dewan Chuni Lal MANU/SC/0497/1970 :
AIR 1970 SC 2086, a two-Judge Bench of this Court held that
adverse entries regarding the dishonesty and inefficiency
of the government employee in his ACRs have to be ignored
if, subsequent to recording of the same, he had been
allowed to cross the efficiency bar, as it would mean that
while permitting him to cross the efficiency bar such
entries had been considered and were not found of serious
nature for the purpose of crossing the efficiency bar.
20. Similarly, a two-Judge Bench of this Court in Baidyanath
Mahapatra v. State of Orissa and Anr. MANU/SC/0051/1989 :
AIR 1989 SC 2218, had taken a similar view on the issue
observing that adverse entries awarded to the employee in
the remote past lost significance in view of the fact that
he had subsequently been promoted to the higher post, for
the reason that while considering the case for promotion he
had been found to possess eligibility and suitability and
if such entry did not reflect deficiency in his work and
conduct for the purpose of promotion, it would be difficult
to comprehend how such an adverse entry could be pressed
into service for retiring him compulsorily. When a
government servant is promoted to higher post on the basis
of merit and selection, adverse entries if any contained in
his service record lose their significance and remain on
record as part of past history.
This view has been adopted by this Court in Baikuntha Nath
Das (supra).
21. However, a three-Judge Bench of this Court in State of
Orissa and Ors. v. Ram Chandra Das MANU/SC/0613/1996 : AIR
1996 SC 2436, had taken a different view as it had been
held therein that such entries still remain part of the
record for overall consideration to retire a government
servant compulsorily. The object always is public interest.
Therefore, such entries do not lose significance, even if
the employee has subsequently been promoted. The Court held
as under:
Merely because a promotion has been given even after
adverse entries were made, cannot be a ground to note that
compulsory 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 selfsame 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.
(Emphasis added)
22. This judgment has been approved and followed by this Court
in State of Gujarat v. Umedbhai M.
Patel MANU/SC/0140/2001 : AIR 2001 SC 1109, emphasising
that the "entire record" of the government servant is to be
examined.
23. In Vijay Kumar Jain (supra), this Court held that the
vigour or sting of an entry does not get wiped out,
particularly, while considering the case of employee for
giving him compulsory retirement, as it requires the
examination of the entire service records, including
character rolls and confidential reports. `Vigour or sting
of an adverse entry is not wiped out' merely it relates to
the remote past. There may be a single adverse entry of
integrity which may be sufficient to compulsorily retire
the government servant.”
22. Stating that the judgment of larger Bench would be binding, the
washed off theory is summed up by the Court in the following manner:
“In view of the above, the law can be summarised to state that
in case there is a conflict between two or more judgments of
this Court, the judgment of the larger Bench is to be followed.
More so, the washed off theory does not have universal
application. It may have relevance while considering the case of
government servant for further promotion but not in a case where
the employee is being assessed by the Reviewing Authority to
determine whether he is fit to be retained in service or
requires to be given compulsory retirement, as the Committee is
to assess his suitability taking into consideration his "entire
service record".
23. It clearly follows from the above that the clarification given
by two Bench judgment in Badrinath is not correct and the observations
of this Court in Gurdas Singh to the effect that the adverse entries
prior to the promotion or crossing of efficiency bar or picking up
higher rank are not wiped off and can be taken into account while
considering the overall performance of the employee when it comes to
the consideration of case of that employee for premature retirement.
24. The principle of law which is clarified and stands crystallized
after the judgment in Pyare Mohan Lal v. State of Jharkhand and Ors.;
2010 (10) SCC 693 is that after the promotion of an employee the
adverse entries prior thereto would have no relevance and can be
treated as wiped off when the case of the government employee is to be
considered for further promotion. However, this ‘washed off theory’
will have no application when case of an employee is being
assessed to determine whether he is fit to be retained in service or
requires to be given compulsory retirement. The rationale given is
that since such an assessment is based on “entire service record”,
there is no question of not taking into consideration an earlier old
adverse entries or record of the old period. We may hasten to add that
while such a record can be taken into consideration, at the same time,
the service record of the immediate past period will have to be given
due credence and weightage. For example, as against some very old
adverse entries where the immediate past record shows exemplary
performance, ignoring such a record of recent past and acting only on
the basis of old adverse entries, to retire a person will be a clear
example of arbitrary exercise of power. However, if old record
pertains to integrity of a person then that may be sufficient to
justify the order of premature retirement of the government servant.
25. Having taken note of the correct principles which need to be
applied, we can safely conclude that the order of the High Court based
solely on the judgment in the case of Brij Mohan Singh Chopra was not
correct. The High Court could not have set aside the order merely on
the ground that service record pertaining to the period 1978-90 being
old and stale could not be taken into consideration at all. As per the
law laid down in the aforesaid judgments, it is clear that entire
service record is relevant for deciding as to whether the government
servant needs to be eased out prematurely. Of course, at the same
time, subsequent record is also relevant, and immediate past record,
preceding the date on which decision is to be taken would be of more
value, qualitatively. What is to be examined is the “overall
performance” on the basis of “entire service record” to come to the
conclusion as to whether the concerned employee has become a deadwood
and it is public interest to retire him compulsorily. The Authority
must consider and examine the overall effect of the entries of the
officer concerned and not an isolated entry, as it may well be in some
cases that in spite of satisfactory performance, the Authority may
desire to compulsorily retire an employee in public interest, as in
the opinion of the said authority, the post has to be manned by a more
efficient and dynamic person and if there is sufficient material on
record to show that the employee “rendered himself a liability to the
institution”, there is no occasion for the Court to interfere in the
exercise of its limited power of judicial review.”
26. With this we revert to the facts of the present case:
In so far as period of 1978-1990 is concerned, the respondent
was charge sheeted in 19 cases. In few cases he was exonerated and in
some other cases he was given minor penalty like admonition, stoppage
of pay, annual grade increment for a limited period. The gist of these
cases is as follows:
|S.N|Charge|Date |Details of |Date of |Details of |Remarks |
|o. | | |Charges |Order |decision | |
| |Sheet | | | | | |
|1. |1648 |11.8.1978|Negligent |417/7-2-79 |Exonerated | |
| | | |Driving | | | |
|2. |798 |25.10.79 |Recovered fare|2783/ |Yearly | |
| | | |from 15 |27.8.84 |increment | |
| | | |passengers | |stopped and | |
| | | |without ticket| |forfeiture of | |
| | | | | |salary for | |
| | | | | |suspension | |
| | | | | |period | |
|3. |2314 |20.11.80 |Corruption |3454/ |Stoppage of | |
| | | | |22.10.84. |yearly | |
| | | | | |increment for | |
| | | | | |one year | |
|4. |1235 |27.4.83 |Absent from |1708/ |Absolved from | |
| | | |duty |7.4.86 |charges | |
| | | | | |without | |
| | | | | |intimation | |
|5. |1035 |31.3.83 |Excess |1709/ |Stoppage of | |
| | | |consumption |3.4.86 |one/ two | |
| | | | | |increments | |
|6. |1754 |13.6.84 |Misbehavior |3453/ |Absolved from | |
| | | |with conductor|22.10.84. |charge | |
|7. |162 |8.1.85 |Absent from |5123/ |Stoppage of | |
| | | |duty without |4.12.85 |yearly | |
| | | |intimation | |increment for | |
| | | | | |one year | |
| | | | | |without | |
| | | | | |commutative | |
| | | | | |effect and | |
| | | | | |forfeiture of | |
| | | | | |salar for | |
| | | | | |suspension | |
| | | | | |period appeal | |
| | | | | |No. 3588/ | |
| | | | | |29.8.88 | |
| | | | | |pending | |
|8. |1798 |4.4.85 |Damage to tyre| | | |
|9. |2298 |29.4.85 |Absent from |5123/4.12.1|Stoppage of | |
| | | |duty without |985 |one increment | |
| | | |intimation | |& forfeiture | |
| | | | | |of salary for | |
| | | | | |suspension | |
| | | | | |period | |
|10.|3928 |26.2.85 |Vehicle |830/ |Stoppage of | |
| | | |accident |5.12.85 |two increments| |
| | | | | |without | |
| | | | | |commutative | |
| | | | | |effect | |
|11.|3763 |1.8.90 |Excess |68/ 14.2.94|Order for | |
| | | |consumption of| |recovery and | |
| | | |Diesel | |or warning for| |
| | | | | |future | |
| | | | | |recovered Rs. | |
| | | | | |132.60. | |
|12.|3090 |30.10.82 |Different | | | |
| | | |types of | | | |
| | | |complaints | | | |
|13.|4669 |30.10.85 |Damage to tyre|11830/ |Stoppage of | |
| | | | |5.12.88 |two increments| |
| | | | | |without | |
| | | | | |commutative | |
| | | | | |effect and | |
| | | | | |forfeiture of | |
| | | | | |salary for the| |
| | | | | |suspension | |
| | | | | |period. | |
|14.|316 |23.1.86 |Bad behavior |4953/ |1. Stoppage of| |
| | | | |12.10.87 |one increment.| |
| | | | | |Forfeiture of | |
| | | | | |salary for the| |
| | | | | |suspension | |
| | | | | |period. | |
| | | | | |2. Less Diesel| |
| | | | | |average | |
|15.|134 |12.1.87 |Demanding |11830/ |Stoppage of | |
| | | |money from |5.12.88 |two increments| |
| | | |driver | |without | |
| | | | | |commulative | |
| | | | | |effect under | |
| | | | | |consideration | |
|16.|4745 |1.11.85 | | | | |
|17.|3361 |13.7.97 |Refusal to |706/ |Absolved, | |
| | | |take vehicle |10.2.88 |released the | |
| | | | | |salary for the| |
| | | | | |suspension | |
| | | | | |period | |
|18.|2041 |21.4.87 |Negligent |2815/ |Absolved | |
| | | |driving of |9.6.93 |released the | |
| | | |vehicle | |salary for | |
| | | | | |suspension | |
| | | | | |period. | |
| | | | | | | |
|19.|3792/ |27.7.87 |Less average |2686/5.5.89|Recovered Rs. | |
| | | |of Diesel | |72/- | |
27. The aforesaid record projects the dismal picture.
The High Court
has observed that the respondents have not been able to show anything
adverse in the career of the respondent after 1990 i.e. in last 12
years preceding the order of retirement. These observations are not
correct in as much as:
a) There was an inquiry against the respondent for which he was
imposed the penalty of stoppage of increment for two years.
He had made a representation against this penalty on
5.11.1998 which was dismissed on 25.5.1998.
b) Further another criminal case was also instituted against him
in the year 1999. Though outcome of this criminal case is not
mentioned, fact remains that the accident was caused by the
Respondent while driving the bus of the appellant
Corporation, and the appellant corporation had to pay heavy
compensation to the victims as a result of orders passed by
MACT.
Thus even the service record after 1990 does not depict a rosy
picture. In any case, there is nothing to show his performance became
better during this period.
28. It hardly needs to be emphasized that the order of compulsory
retirement is neither punitive nor stigmatic.
It is based on
subjective satisfaction of the employer and a very limited scope of
judicial review is available in such cases.
Interference is
permissible only on the ground of non application of mind, malafide,
perverse, or arbitrary or if there is non-compliance of statutory duty
by the statutory authority.
Power to retire compulsorily, the
government servant in terms of service rule is absolute, provided the
authority concerned forms a bonafide opinion that compulsory
retirement is in public interest.(See: AIR 1992 SC 1368)
29. Accordingly, we have no option but to set aside the impugned
order of the High Court thereby upholding order of the compulsory
retirement. The appeal is allowed with no order as to costs.
..…………………………....J.
[K.S. RADHAKRISHNAN]
...…………………………..J.
[A.K. SIKRI]
NEW DELHI
SEPTEMBER 16, 2013
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8245/2013
(Arising out of Special Leave Petition (Civil) No. 17760 OF 2013)
Rajasthan State Road Transport Corp. & Ors. ………Appellant(s)
Versus
Babu Lal Jangir
….....Respondent(s)
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
2. Rajasthan State Road Transport Corporation is the appellant in
the instant petition through of which it impugns the validity of the
orders dated 16.1.2013 passed by Division Bench of the High Court of
Judicature For Rajasthan, Bench at Jaipur.
The Division Bench has
dismissed the Writ Appeal of the appellant and confirmed the orders of
the Additional Judge passed in the Writ Petition filed by the
respondent herein, quashing the orders of compulsory retirement of the
respondent with the direction that the respondent would be deemed to
be in the service as if the order of compulsory retirement had not
been passed and as a consequence the respondent is held entitled to
all consequential benefits.
3. The Respondent joined the services of the appellant on the post
of Driver on 14.2.1977. He was placed on probation for a period of
one year.
4. The appellant has framed Standing Orders for its employees known
as the Rajasthan State Road Transport Workers and workshop Employees
Standing Orders, 1965 (hereinafter to be referred as the ‘Standing
Orders’). These orders are duly certified by the Authority under the
provisions of Industrial Employment (Standing Orders) Act, 1946.
Subsequently, there was an amendment in these Standing Orders and
certain new clauses under rule 18, were inserted introducing the
provision of compulsory and voluntary retirement. The same are
reproduced herein below:
“18-D(1) COMPULSORY RETIREMENT
Notwithstanding anything contained in the regulations the
Corporation may if is of the opinion that it is in the interest
of the Corporation to do so, have the absolute right to retire
any Corporation employee after, he has attained the age of 50
years or on the date he completes 25 years of service whichever
is earlier, or on any date thereafter, by giving him 3 months
notice in writing or three months pay and allowances in lieu
thereof.
18-D (2) VOLUNTARY RETIREMENT
Notwithstanding anything contained here in before
Corporation employee may after giving three months previous
notice in writing, retire from the service on the date on which
he completes 20 years service on the date he attains the age of
45 years or on any other date thereafter.”
5. It is clear from the above that the clauses pertaining to
compulsory retirement gives the Petitioner-Corporation absolute right
to retire any employee after he attains the age of 50 years or on
completion of 25 years service whichever is earlier.
6. A Screening Committee was constituted by the Petitioner
Corporation in 27.3.2002 to look into the conduct and continuance of
four employees who had attained the age of 50 years or had completed
25 years of service. Among these four persons, name of the Respondent
also appeared.
7. This committee, on perusal of the record of the respondent,
recommended his compulsory retirement. The Review Committee held its
meeting on 8.4.2002 to review the report of the Screening Committee
and after perusal of the report of the Screening Committee, the Review
Committee approved the proposal of the Screening Committee. Based on
the recommendation of the Review Committee, the Competent Authority
passed the orders dated 9.4.2002, compulsorily retiring the respondent
from service. As three months previous notice is required under rule
18-D (1) of the Standing Orders, in lieu thereof the respondent was
sent three months’ salary cheque.
8. Challenging this action of the appellant, the respondent filed
the Writ Petition in the High Court of Judicature for Rajasthan. The
appellant herein (Respondent in the Writ Petition) appeared and
decided a Writ Petition by filing counter affidavit. It was the
highlight of the petitioner’s defense that the service record of the
respondent showed a dismal picture, in as much as between the year
1978-1990, nearly 19 cases of misconduct were foisted upon the
respondent which resulted into some or the other kind of penalty like
admonition or stoppage of pay or annual grade increment for a limited
period. So much so, in the year 1992 a criminal case against the
respondent was initiated under Section 279 read with Section 304 (a)
of IPC and Section 18/118 of the Motor Vehicles Act. In that case he
was given the benefit of doubt and released. However, a departmental
inquiry was held in which penalty of imposition or stoppage of two
years’ increment was imposed upon him. A representation against this
penalty was also dismissed. In the year 1999 another criminal case was
instituted against the Respondent because of the accident of the bus
of the petitioner which was driven by the Respondent as Driver. The
victims had also filed their claim before the Motor Claim Tribunal
(MACT) and the Appellant -Corporation had to suffer heavy loss by
paying compensation in the said case. However, in criminal case, the
Respondent was acquitted. The appellant also pointed out that the
service record of the Respondent revealed that he was also involved in
the another accident in the year 1999 in which he suffered serious
burn injuries. Because of this, he had moved an application
requesting the Petitioner-Corporation to give him light job.
Accordingly, he was posted as staff car Driver at Head Office. This
job was given to him virtually showing mercy, which did not entail
regular hard work. It was thus, argued by the Appellant -Corporation
that the aforesaid entire service record was gone into by the
Screening Committee as well as the Review Committee on the basis of
which the decision was taken to retire the Respondent prematurely.
9. The learned Single Judge of the High Court, however, did not
eschew the aforesaid submission of the Appellant -Corporation giving
the reason that the various acts of misconduct pointed out by the
Petitioner-Corporation against the Respondent herein pertained to the
period between 1978-90, whereas the order of compulsory retirement was
passed 12 years thereafter i.e. on 9.4.2002. In the opinion of the
learned Single Judge, thee minor misconducts of the period more than
12 years before the compulsory retirement were not sufficient to come
to the conclusion that the compulsory retirement of the respondent was
in public interest. The learned Single Judge also observed that
record of immediate past period was not looked into at all and on the
basis of current purpose it could not be said that respondent had
become deadwood or had become inefficient who needed to be weeded out.
It also It also remarked that the appellant corporation was not able
to point out any deficiency in the work and conduct of the Respondent
for over 10 years immediately preceding his compulsory retirement. It
was thus, unjust, unreasonable and arbitrary to retire the respondent
prematurely on the basis of old and stale material. For coming to this
conclusion the learned Single Judge drew sustenance from the judgment
of this Court in Brij Mohan Singh Chopra v. State of Punjab 1987 (2)
SCC 188.
10. Not satisfied with the aforesaid outcome, the appellant
preferred Writ Appeal before the Division Bench but without any
success as the said Writ Appeal has been dismissed by the Division
Bench,
echoing the reasons given by the ld. Single Judge. While upholding the
order of the learned Single Judge, the Division Bench also noted that
the recorded date of birth, at the time of entry of the Respondent
into service, was 7.7.1951. Since the normal age of superannuation is
60 years, the respondent would have continued in service till the year
2011. Since he was prematurely retired and that retirement has been
set aside with the direction that he deems to be in service, the
respondent would have to be treated in service till July, 2011.
However, before the Division Bench, the respondent raised the dispute
about his date of birth contending that his actual date of birth was
21.1.1957 which was even recorded in some of the official documents.
He thus pleaded that he had right to continue in service even beyond
July 2011 i.e. upto the end of January, 2017.
11. The High Court, however refrained from passing any order on this
aspect and observed that it would be open to the respondent to submit
a proper presentation before the concerned authority of the Appellant
-Corporation who will examine the records of his date of birth and
take a decision thereon. It further directed:
“In case his date of birth is ultimately determined to be
7/7/1951, all consequential benefits following the interference
with the order of compulsory retirement would be released to
him. In the eventuality of his date of birth being determined to
be 21.9.1957, the Corporation would consider his reinstatement
in service.”
12. On the very first day i.e. on 23.8.13, when this petition came
up for hearing, the respondent appeared person. He showed his
willingness to argue the matter himself finally at the admission stage
itself. As this course of action was agreeable to the Counsel for
the petitioner as well, the parties were heard at length.
13. From the narration of facts stated above and specifically from
the perusal of the judgment of the learned Single Judge which is
upheld by the Division Bench on the same reasoning it is apparent
clear that the main reason for setting aside the order of compulsory
retirement is that adverse entries/ minor mis-conducts of the
Respondent related to the period 1978-90 i.e 12 years prior to
premature retirement were taken into consideration and there was no
material whatsoever before this Review Committee in the recent past on
the basis of which, the requisite opinion could be framed that the
premature retirement of the respondent was in public interest. Again,
as pointed above, for arriving at this conclusion, the High Court
extensively relied upon judgment of this Court in Brij Mohan Singh
Chopra (supra).
14. First and foremost argument of the learned Counsel for the
appellant was that judgment of this Court in Brij Mohan Singh Chopra
(supra) was overruled by three member Bench in Baikuntha Nath Das &
Anr. v. Chief District Medical Officer, Baripara & Anr.;1992 (2) SCC
299, and it was specifically recorded so in subsequent judgment in the
case of The State of Punjab v. Gurdas Singh; 1998 (4) SCC 92. This
calls for examination of this argument in the first instance.
15. A reading of Baikuntha Nath judgment would reveal that the main
issue in that case was as to whether the employer could act upon, un-
communicated adverse remarks and whether observance of the principles
of natural justice was necessary before taking a decision to
compulsory retire a government servant. The court answered both the
questions in the negative holding that it was permissible for the
Government to even look into and consider un-communicated adverse
remarks. It was also held that since the premature retirement was not
stigmatic in nature and such an action was based on subjective
satisfaction of the Government, there was no room for importing facet
of natural justice in such a case. In the process of discussion and
giving reasons for the aforesaid opinion, the Court took note of
various judgments. Decision in the case of Brij Mohan Singh Chopra
(supra) was also specifically dealt with. In this case there were no
adverse entries in the confidential records of the appellant for a
period of five years prior to the impugned order of premature
retirement. Within five years there were two adverse entries. However,
these adverse remarks were not communicated to the employee. The order
based on un-communicated adverse entries was set aside on two grounds
namely:
i) It was not reasonable and just to consider adverse entries
of remote past and to ignore good entries of recent past.
If the entries for the period of more than 10 years past
are taken into account it would be act of digging out past
to get some material to make an order against the employee.
ii) Since the adverse entries were not even communicated, it
was unjust and unfair and contrary to principles of natural
justice to retire prematurely a government employee on the
basis of adverse entries which are either not communicated
to him or if communicated, representations made against
those entries are not considered and disposed of.
16. After taking note of the aforesaid grounds on which the order of
compulsory retirement in Brij Mohan Singh Chopra (supra) was set
aside, the Court in Baikuntha Nath Das (supra) dealt with the second
ground alone namely whether principles of natural justice were
required to be followed or it was permissible for the Government to
take into consideration the adverse entries which were either not
communicated to him or if communicated representations made against
those entries were still pending. This second proposition of Brij
Mohan Singh Chopra was held as not the correct proposition in law and
principles of natural justice could not be brought in such a case. The
Court had noted that this reasoning was in conflict with the earlier
judgment in the case Union of India v. Col. J.N. Sinha & Anr. 1970
(II) LLJ 284 and agreed with the view taken in J.N. Sinha’s Case.
17. It clearly follows from the above that in so far as first ground
in Brij Mohan Singh Chopra namely consideration of adverse entries of
remote past was inappropriate to compulsory retire an employee, was
not touched or discussed. In fact, on the facts of the Baikunth Nath
Dass, this proposition did not arise for consideration at all. No
doubt, in Gurdas Singh’s Case, it has been specifically remarked that
the judgment in Brij Mohan Singh Chopra (supra) has been overruled in
Baikuntha Nath (supra). It would be relevant to point out that even
Gurdas Singh was a case relating to un-communicated adverse entries.
Therefore, Brij Mohan Singh Chopra was overruled only on the second
proposition.
18. The fact that the issue as to whether remote past of the
employee can be taken into consideration or not was not dealt with in
Baikuntha Nath Das or Gurdas Singh Case was specifically noticed by
this Court in the case of Badrinath v. Government of Tamil Nadu and
Ors. 2000(8) SCC 395; 2000(6) SCALE 618. That was a case where this
question of taking into consideration the old records came up directly
for discussion. The court discussed the judgment in Brij Mohan Singh
Chopra and pointed out that three judge Bench in Baikuntha Nath Das
overruled Brij Mohan Singh Chopra Case only on the second aspect,
namely non-communication of the adverse reports. In so far as first
aspect, which pertained to considering adverse entries of old period,
the Court also pointed out that in Para 32 of Baikuntha Nath Das Case,
various legal principles/propositions were summed up and drew
attention to principle No.(iv) in that para with which we are
concerned. It reads as under:
“So far as the appeals before us are concerned, the High Court
has looked into the relevant record and confidential records has
opined that the order of compulsory retirement was based not
merely upon the said adverse remarks but other material as well.
Secondly, it has also found that the material placed before them
does not justify the conclusion that the said remarks were not
recorded duly or properly. In the circumstances, it cannot be
said that the said remarks were not recorded duly or properly.
In the circumstances, it cannot be said that the order of
compulsory retirement suffers from mala fides or that it is
based on no evidence or that it is arbitrary.”
19. On that basis following pertinent observations were made in
Badrinath case:
“54. We are however concerned with the first point stated in
Brij Mohan Singh Chopra's case as explained and accepted in
principle (iv) of para 34 of the three Judge Judgment in
Baikunth Nath Das. We have already extracted this passage
in principle (iv) of para 34. It reaffirms that old adverse
remarks are not to be dug out and that adverse remarks made
before an earlier selection for promotion are to be treated
as having lost their 'sting'. This view of the three Judge
Bench, in our view, has since been not departed from. We
shall, therefore, refer to the two latter cases which have
referred to this case in Baikunth Nath Das. The second of
these two latter cases has also to be explained.
55. In the first of these latter cases, namely, Union of India
v. V.R. Seth MANU/SC/0286/1994 : (1994)IILLJ411SC the point
related both to adverse remarks of a period before an
earlier promotion but also to uncommunicated adverse
remarks. It was held that the Tribunal was wrong in holding
in favour of the officer on the ground that uncommunicated
adverse remarks could not be relied upon for purposes of
compulsory retirement. So far as the remarks prior to an
earlier promotion this Court did not hold that they could
be given as much weight as those in later years. The Court,
in fact, relied upon Baikunth Nath Das case decided by
three Judge Bench which had proposition (iv) in para 34 (at
p. 315-316) had clearly accepted that adverse remarks prior
to an earlier promotion lose their 'sting'.
56. The second case is the one in State of Punjab v. Gurdas
Singh MANU/SC/0256/1998 : AIR1998SC1661 . The facts there
were that there were adverse remarks from 1978 prior to
1984 when the officer was promoted and there were also
adverse remarks for the period 18.6.84 to 31.3.85. The
compulsory retirement order was passed on 3.9.87. The said
order was quashed by the Civil Court on the ground that his
record prior to his promotion i.e. prior to 1984 could not
have been considered and two adverse entries after 1984
were not communicated and could not be relied upon. The
three Judge Bench, while clearly setting out proposition
(iv) in para 34 (at p. 315-316) of Baikunth Nath Das which
said that adverse remarks prior to promotion lose their
sting, held that they were following the said judgment and
they allowed the appeal of the State. Following Baikunth
Nath Das, the Bench felt that uncommunicated adverse
remarks could be relied upon and in that case these entries
related to the period after an earlier promotion. That
ground alone was sufficient for the case. There is a
further observation (at p. 99, para 11) that an adverse
entry prior to earning of promotion or crossing of
efficiency bar or picking up higher rank is not wiped out
and can be taken into consideration while considering the
overall performance of the employee during the whole tenure
of service.
57. The above sentence in Gurdas Singh needs to be explained
in the context of the Bench accepting the three Judge Bench
ruling in Baikunth Nath Das. Firstly, this last observation
in Gurdas Singh's case does not go against the general
principle laid down in Baikunth Nath Das to the effect that
though adverse remarks prior to an earlier promotion can be
taken into account, they would have lost their 'sting'.
Secondly, there is a special fact in Gurdas Singh's case,
namely, that the adverse remarks prior to the earlier
promotion related to his "dishonesty". In a case relating
to compulsory retirement therefore, the sting in adverse
remarks relating to dishonesty prior to an earlier
promotion cannot be said to be absolutely wiped out. The
fact also remains that in Gurdas Singh's case there were
other adverse remarks also even after the earlier
promotion, regarding dishonesty though they were not
communicated. We do not think that Gurdas Singh is an
authority to say that adverse remarks before a promotion
however remote could be given full weight in all situations
irrespective of whether they related to dishonesty or
otherwise. As pointed in the three Judge Bench case in
Baikunth Nath Das, which was followed in Gurdas Singh they
can be kept in mind but not given the normal weight which
could have otherwise been given to them but their strength
is substantially weakened unless of course they related to
dishonesty.”
20. If one were to go by the dicta in Badrinath Case, obvious
conclusion would be that even if there are adverse remarks in the
service career of an employee they would lose there effect, when that
employee is given promotion to the higher post and would not be taken
into account when the case of that employee for compulsory retirement
is taken up for consideration, except only those adverse entries in
the confidential reports of that employee which touch upon his
integrity. Thus, Badrinath case interprets principle (iv) in para 32
of Baikunth Dass to mean such adverse remarks for the period prior to
promotion, unless they are related to dishonesty, would be
substantially weekend after the promotion.
21. This interpretation given in Badrinath case, which was the
judgment rendered by two member Bench, has not been accepted by three
member bench of this Court, subsequently, in Pyare Mohan Lal v. State
of Jharkhand and Ors. (2010) 10 SCC 693. After discussing various
judgments, including the judgments referred to by us hitherto, the
Court clarified and spelled out the circumstances in which the earlier
adverse entries/ record would be wiped of and the circumstances in
which the said record, even of remote past would not lose its
significance. It is lucidly conceptualized under the head “Washed Off
Theory” as follows:
“WASHED OFF THEORY
“19. In State of Punjab v. Dewan Chuni Lal MANU/SC/0497/1970 :
AIR 1970 SC 2086, a two-Judge Bench of this Court held that
adverse entries regarding the dishonesty and inefficiency
of the government employee in his ACRs have to be ignored
if, subsequent to recording of the same, he had been
allowed to cross the efficiency bar, as it would mean that
while permitting him to cross the efficiency bar such
entries had been considered and were not found of serious
nature for the purpose of crossing the efficiency bar.
20. Similarly, a two-Judge Bench of this Court in Baidyanath
Mahapatra v. State of Orissa and Anr. MANU/SC/0051/1989 :
AIR 1989 SC 2218, had taken a similar view on the issue
observing that adverse entries awarded to the employee in
the remote past lost significance in view of the fact that
he had subsequently been promoted to the higher post, for
the reason that while considering the case for promotion he
had been found to possess eligibility and suitability and
if such entry did not reflect deficiency in his work and
conduct for the purpose of promotion, it would be difficult
to comprehend how such an adverse entry could be pressed
into service for retiring him compulsorily. When a
government servant is promoted to higher post on the basis
of merit and selection, adverse entries if any contained in
his service record lose their significance and remain on
record as part of past history.
This view has been adopted by this Court in Baikuntha Nath
Das (supra).
21. However, a three-Judge Bench of this Court in State of
Orissa and Ors. v. Ram Chandra Das MANU/SC/0613/1996 : AIR
1996 SC 2436, had taken a different view as it had been
held therein that such entries still remain part of the
record for overall consideration to retire a government
servant compulsorily. The object always is public interest.
Therefore, such entries do not lose significance, even if
the employee has subsequently been promoted. The Court held
as under:
Merely because a promotion has been given even after
adverse entries were made, cannot be a ground to note that
compulsory 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 selfsame 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.
(Emphasis added)
22. This judgment has been approved and followed by this Court
in State of Gujarat v. Umedbhai M.
Patel MANU/SC/0140/2001 : AIR 2001 SC 1109, emphasising
that the "entire record" of the government servant is to be
examined.
23. In Vijay Kumar Jain (supra), this Court held that the
vigour or sting of an entry does not get wiped out,
particularly, while considering the case of employee for
giving him compulsory retirement, as it requires the
examination of the entire service records, including
character rolls and confidential reports. `Vigour or sting
of an adverse entry is not wiped out' merely it relates to
the remote past. There may be a single adverse entry of
integrity which may be sufficient to compulsorily retire
the government servant.”
22. Stating that the judgment of larger Bench would be binding, the
washed off theory is summed up by the Court in the following manner:
“In view of the above, the law can be summarised to state that
in case there is a conflict between two or more judgments of
this Court, the judgment of the larger Bench is to be followed.
More so, the washed off theory does not have universal
application. It may have relevance while considering the case of
government servant for further promotion but not in a case where
the employee is being assessed by the Reviewing Authority to
determine whether he is fit to be retained in service or
requires to be given compulsory retirement, as the Committee is
to assess his suitability taking into consideration his "entire
service record".
23. It clearly follows from the above that the clarification given
by two Bench judgment in Badrinath is not correct and the observations
of this Court in Gurdas Singh to the effect that the adverse entries
prior to the promotion or crossing of efficiency bar or picking up
higher rank are not wiped off and can be taken into account while
considering the overall performance of the employee when it comes to
the consideration of case of that employee for premature retirement.
24. The principle of law which is clarified and stands crystallized
after the judgment in Pyare Mohan Lal v. State of Jharkhand and Ors.;
2010 (10) SCC 693 is that after the promotion of an employee the
adverse entries prior thereto would have no relevance and can be
treated as wiped off when the case of the government employee is to be
considered for further promotion. However, this ‘washed off theory’
will have no application when case of an employee is being
assessed to determine whether he is fit to be retained in service or
requires to be given compulsory retirement. The rationale given is
that since such an assessment is based on “entire service record”,
there is no question of not taking into consideration an earlier old
adverse entries or record of the old period. We may hasten to add that
while such a record can be taken into consideration, at the same time,
the service record of the immediate past period will have to be given
due credence and weightage. For example, as against some very old
adverse entries where the immediate past record shows exemplary
performance, ignoring such a record of recent past and acting only on
the basis of old adverse entries, to retire a person will be a clear
example of arbitrary exercise of power. However, if old record
pertains to integrity of a person then that may be sufficient to
justify the order of premature retirement of the government servant.
25. Having taken note of the correct principles which need to be
applied, we can safely conclude that the order of the High Court based
solely on the judgment in the case of Brij Mohan Singh Chopra was not
correct. The High Court could not have set aside the order merely on
the ground that service record pertaining to the period 1978-90 being
old and stale could not be taken into consideration at all. As per the
law laid down in the aforesaid judgments, it is clear that entire
service record is relevant for deciding as to whether the government
servant needs to be eased out prematurely. Of course, at the same
time, subsequent record is also relevant, and immediate past record,
preceding the date on which decision is to be taken would be of more
value, qualitatively. What is to be examined is the “overall
performance” on the basis of “entire service record” to come to the
conclusion as to whether the concerned employee has become a deadwood
and it is public interest to retire him compulsorily. The Authority
must consider and examine the overall effect of the entries of the
officer concerned and not an isolated entry, as it may well be in some
cases that in spite of satisfactory performance, the Authority may
desire to compulsorily retire an employee in public interest, as in
the opinion of the said authority, the post has to be manned by a more
efficient and dynamic person and if there is sufficient material on
record to show that the employee “rendered himself a liability to the
institution”, there is no occasion for the Court to interfere in the
exercise of its limited power of judicial review.”
26. With this we revert to the facts of the present case:
In so far as period of 1978-1990 is concerned, the respondent
was charge sheeted in 19 cases. In few cases he was exonerated and in
some other cases he was given minor penalty like admonition, stoppage
of pay, annual grade increment for a limited period. The gist of these
cases is as follows:
|S.N|Charge|Date |Details of |Date of |Details of |Remarks |
|o. | | |Charges |Order |decision | |
| |Sheet | | | | | |
|1. |1648 |11.8.1978|Negligent |417/7-2-79 |Exonerated | |
| | | |Driving | | | |
|2. |798 |25.10.79 |Recovered fare|2783/ |Yearly | |
| | | |from 15 |27.8.84 |increment | |
| | | |passengers | |stopped and | |
| | | |without ticket| |forfeiture of | |
| | | | | |salary for | |
| | | | | |suspension | |
| | | | | |period | |
|3. |2314 |20.11.80 |Corruption |3454/ |Stoppage of | |
| | | | |22.10.84. |yearly | |
| | | | | |increment for | |
| | | | | |one year | |
|4. |1235 |27.4.83 |Absent from |1708/ |Absolved from | |
| | | |duty |7.4.86 |charges | |
| | | | | |without | |
| | | | | |intimation | |
|5. |1035 |31.3.83 |Excess |1709/ |Stoppage of | |
| | | |consumption |3.4.86 |one/ two | |
| | | | | |increments | |
|6. |1754 |13.6.84 |Misbehavior |3453/ |Absolved from | |
| | | |with conductor|22.10.84. |charge | |
|7. |162 |8.1.85 |Absent from |5123/ |Stoppage of | |
| | | |duty without |4.12.85 |yearly | |
| | | |intimation | |increment for | |
| | | | | |one year | |
| | | | | |without | |
| | | | | |commutative | |
| | | | | |effect and | |
| | | | | |forfeiture of | |
| | | | | |salar for | |
| | | | | |suspension | |
| | | | | |period appeal | |
| | | | | |No. 3588/ | |
| | | | | |29.8.88 | |
| | | | | |pending | |
|8. |1798 |4.4.85 |Damage to tyre| | | |
|9. |2298 |29.4.85 |Absent from |5123/4.12.1|Stoppage of | |
| | | |duty without |985 |one increment | |
| | | |intimation | |& forfeiture | |
| | | | | |of salary for | |
| | | | | |suspension | |
| | | | | |period | |
|10.|3928 |26.2.85 |Vehicle |830/ |Stoppage of | |
| | | |accident |5.12.85 |two increments| |
| | | | | |without | |
| | | | | |commutative | |
| | | | | |effect | |
|11.|3763 |1.8.90 |Excess |68/ 14.2.94|Order for | |
| | | |consumption of| |recovery and | |
| | | |Diesel | |or warning for| |
| | | | | |future | |
| | | | | |recovered Rs. | |
| | | | | |132.60. | |
|12.|3090 |30.10.82 |Different | | | |
| | | |types of | | | |
| | | |complaints | | | |
|13.|4669 |30.10.85 |Damage to tyre|11830/ |Stoppage of | |
| | | | |5.12.88 |two increments| |
| | | | | |without | |
| | | | | |commutative | |
| | | | | |effect and | |
| | | | | |forfeiture of | |
| | | | | |salary for the| |
| | | | | |suspension | |
| | | | | |period. | |
|14.|316 |23.1.86 |Bad behavior |4953/ |1. Stoppage of| |
| | | | |12.10.87 |one increment.| |
| | | | | |Forfeiture of | |
| | | | | |salary for the| |
| | | | | |suspension | |
| | | | | |period. | |
| | | | | |2. Less Diesel| |
| | | | | |average | |
|15.|134 |12.1.87 |Demanding |11830/ |Stoppage of | |
| | | |money from |5.12.88 |two increments| |
| | | |driver | |without | |
| | | | | |commulative | |
| | | | | |effect under | |
| | | | | |consideration | |
|16.|4745 |1.11.85 | | | | |
|17.|3361 |13.7.97 |Refusal to |706/ |Absolved, | |
| | | |take vehicle |10.2.88 |released the | |
| | | | | |salary for the| |
| | | | | |suspension | |
| | | | | |period | |
|18.|2041 |21.4.87 |Negligent |2815/ |Absolved | |
| | | |driving of |9.6.93 |released the | |
| | | |vehicle | |salary for | |
| | | | | |suspension | |
| | | | | |period. | |
| | | | | | | |
|19.|3792/ |27.7.87 |Less average |2686/5.5.89|Recovered Rs. | |
| | | |of Diesel | |72/- | |
27. The aforesaid record projects the dismal picture.
The High Court
has observed that the respondents have not been able to show anything
adverse in the career of the respondent after 1990 i.e. in last 12
years preceding the order of retirement. These observations are not
correct in as much as:
a) There was an inquiry against the respondent for which he was
imposed the penalty of stoppage of increment for two years.
He had made a representation against this penalty on
5.11.1998 which was dismissed on 25.5.1998.
b) Further another criminal case was also instituted against him
in the year 1999. Though outcome of this criminal case is not
mentioned, fact remains that the accident was caused by the
Respondent while driving the bus of the appellant
Corporation, and the appellant corporation had to pay heavy
compensation to the victims as a result of orders passed by
MACT.
Thus even the service record after 1990 does not depict a rosy
picture. In any case, there is nothing to show his performance became
better during this period.
28. It hardly needs to be emphasized that the order of compulsory
retirement is neither punitive nor stigmatic.
It is based on
subjective satisfaction of the employer and a very limited scope of
judicial review is available in such cases.
Interference is
permissible only on the ground of non application of mind, malafide,
perverse, or arbitrary or if there is non-compliance of statutory duty
by the statutory authority.
Power to retire compulsorily, the
government servant in terms of service rule is absolute, provided the
authority concerned forms a bonafide opinion that compulsory
retirement is in public interest.(See: AIR 1992 SC 1368)
29. Accordingly, we have no option but to set aside the impugned
order of the High Court thereby upholding order of the compulsory
retirement. The appeal is allowed with no order as to costs.
..…………………………....J.
[K.S. RADHAKRISHNAN]
...…………………………..J.
[A.K. SIKRI]
NEW DELHI
SEPTEMBER 16, 2013
