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Sri Baikunthanath Das Vs. Chief Dt. Medical Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in53(1982)CLT251; (1982)IILLJ198Ori
AppellantSri Baikunthanath Das
RespondentChief Dt. Medical Officer and ors.
Cases ReferredSwami Saran Saksena v. State of Uttar Pradesh
Excerpt:
.....and had an excellant character roll and no adverse entry therein has ever been communicated to her, she was served with the order of compulsory retirement dated 13-2-1976. according to her, she had the right to continue in service till the age of 60 (sixty) years being an employee of the former state of mayurbhanj and the order of compulsory retirement had been passed arbitrarily and in contravention of the circulars (annexures 3-a and 3-b) issued by the state government. 527, to be valid, we have to confine our examination to see whether a rational mind would have been satisfied on the materials available that the compulsory retirement of the officers concerned was necessary in public interest. 103. the petitioner nalini das has asserted in her application that for her good and..........grounds. while according to the petitioner, the impugned order is illegal and invalid, state government asserts that it had been validly passed after the due consideration and in public interest.4. the case of the petitioner nalini das is that owing to her meritorious work and efficiency, she had been promoted and had been appointed as a lady health visitor and while she was performing her duties throughout her service career efficiently and had an excellant character roll and no adverse entry therein has ever been communicated to her, she was served with the order of compulsory retirement dated 13-2-1976. according to her, she had the right to continue in service till the age of 60 (sixty) years being an employee of the former state of mayurbhanj and the order of compulsory.....
Judgment:

B.K. Behera, J.

1. The petitioner in O.J.C. No. 412 of 1976 was serving as a Pharmacist when he was served with the order of compulsory retirement (Annexure-1) dated February 13, 1976 and the petitioner in O.J.C. No. 475 of 1976 had been serving as Lady Health Visitor when she was compulsorily retired from service by the order (Annexure-1) passed on the same day. Both these orders have been passed by the Governor in exercise of the powers conferred under the first Proviso to Sub-rule (a) of Rule 71 of the Orissa Service Code (hereinafter referred to as the 'Code' which reads :

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 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55th year of age in order to determine whether he/she should be allowed to remain in service upto the date of completion of the age of 58 years or retired on completing the age of 55 years in public interest:

Provided that a Government servant may retire from service any time after completing thirty years qualifying service or on attaining the age of fifty years, by giving a notice in writing to the appropriate authority at least three months before the date of which he wishes to retire or by giving the said notice to the said authority before such shorter period as Government may allow in any case. It shall be open to the appropriate authority to withhold permission to a Government servant who seeks to retire under this rule, if he is under suspension or if enquiries against him are in progress. The appropriate authority may also require any officer to retire in public interest any time after he has completed thirty years qualifying service or attained the age of fifty years by giving a notice in writing to the Government servant at least three months before the date on which he is required to retire of by giving three months pay and allowances in lieu of such notice.X X X

2. Common questions have been raised by the same learned Counsel for the petitioners in both the matters which have been heard together and this judgment will govern both the cases.

3. The petitioner Baikunthanath Das challenges the order of compulsory retirement on the ground of mala fides and his case is that the impugned order was not based on any material, but had been passed owing to grudge and ill-will towards him by the Chief District Medical Officers for which he had been transferred from place to place and had been placed under suspension at one stage without any justification and many representations made by him had gone' unheeded. Reliance has been placed by him in this regard on Annexures 2 to 9. He has also annexed a copy of letter No. 21423 dated October 1, 1975 addressed to all Heads of Departments (Annexure-10) regarding the principles and procedure to be followed while passing an order of retirement of a Government employee under Rule 71(1) of the Code. According to him, he had been working satisfactorily, sincerely and efficiently and no adverse entries in his Confidential Character Roll had been communicated to him. In the counter-affidavit, the grounds taken by the petitioner have been controverted and it has been stated that the order of compulsory retirement has been passed after the Review Committee decided that this was a fit case where action should be taken in exercise of the powers conferred under Rule 7 l(a) of the code. It has been averred therein that the remarks in the Confidential Character Roll in respect of the petitioner besides some other reports against him had been available for consideration by the Review Committee. The impugned order had not been passed owing to mala fides on the part of the authorities and transfers of the petitioner had been effected on administrative grounds. While according to the petitioner, the impugned order is illegal and invalid, State Government asserts that it had been validly passed after the due consideration and in public interest.

4. The case of the petitioner Nalini Das is that owing to her meritorious work and efficiency, she had been promoted and had been appointed as a Lady Health Visitor and while she was performing her duties throughout her service career efficiently and had an excellant character roll and no adverse entry therein has ever been communicated to her, she was served with the order of compulsory retirement dated 13-2-1976. According to her, she had the right to continue in service till the age of 60 (sixty) years being an employee of the former State of Mayurbhanj and the order of compulsory retirement had been passed arbitrarily and in contravention of the Circulars (Annexures 3-A and 3-B) issued by the State Government. It has been stated in the counter-affidavit on behalf of the State that after a review of the work of the petitioner by Review Committee, it was found that the petitioner should not be continued in service and thereafter the impugned order was passed. The State Government had the right to review the service of the petitioner and the decision was taken to retire her in public interest in accordance with the rules and instructions issued by the State Government after considering the service record of the petitioner which was unsatisfactory. The impugned order had been passed without any mala fides and was legal and valid.

5. The learned Counsel for the petitioners has rightly not pressed into service the point raised by the petitioner Nalini Das in her application that she was entitled to continue in service until the completion of 60 years of age as even if she was to superannuate at the age of 60, nothing stood in the way of retiring her in exercise of the powers under the Proviso to Rule 7I (a) of the Code, It has been submitted by him on behalf of both the petitioners that the orders of compulsory retirement had been passed without forming the requisite opinion and had not been passed in public interest. The service records of both the petitioners had been satisfactory and no adverse entries in their Confidential Character Rolls had been communicated to them. The impugned orders had been passed owing to mala fides and were neither legal nor valid and had not been passed by the appropriate authority. The learned Government Advocate has, however, submitted that none of the contentions raised on behalf of the petitioner can prevail and the impugned orders had been legally and validly passed in public interest and are not to be called in question in this Court in its extraordinary jurisdiction.

6. It has been a settled principle of law that the order of compulsory retirement can be challenged only on the ground either that the requisite opinion was not formed or that the order was passed arbitrarily or on collateral grounds. The order to retire is to be passed only by the appropriate authority after forming requisite opinion not subjective satisfaction, but objective and bona fide and based on relevant material. The requisite opinion is that the retirement of the public officer is in public interest not personal, political or other collateral consideration but solely in the public interest. Naked and arbitrary exercise of power is ; the antithesis of Rule of law. As a guidelines has been administratively prescribed and the same has been held by this Court in the case of Sahadev Patnaik v. State, I.L.R. 1974 Cut. 527, to be valid, we have to confine our examination to see whether a rational mind would have been satisfied on the materials available that the compulsory retirement of the officers concerned was necessary in public interest. The appropriate authority, and not the Court takes the decision, but in the event of challenge, the Court examines if power has been abused. The premature retirement of a Government servant in public interest casts no stigma and is not punishment; therefore, Article 311 is not attracted. While a minimum service is guaranteed to the Government servant, the Government has the power to energise its machinery and keep it efficient by cumpulsorily retiring those who, in its opinion, have become dead wood, ceased to be useful and should not be there in public interest, where the requisite authority bona fide forms the opinion that a Government servant be retired in public interest, that opinion cannot be challenged before the Courts. If, on the other hand, an order of compulsory retirement is passed without application of mind and without forming the requisite opinion, such an order can be annulled by the Court. Union of India v. J.N. Sinha and Anr. 1970-II L.L.J. 84, R.L. Butail v. Union of India and Ors. 1970-II L.L.J. 514, Gian Singh Manu v. High Court of Punjab and Haryana and Anr. 1981-I L.L.J. 153, Baldev Raj Chadha v. Union of India and Ors. 1980-II L.L.J. 459 and B.C. Mohanty v. State of Orissa (1975) 2 C.W.R. 737. The burden of establishing mala fides is very heavy on the person alleging it, as observed in the case of Gobinda Chandra Rout v. State Government of Orissa I.L.R. 1974 Cut. 703.

7. As has been submitted at the Bar, the Chief District Medical Officer and not the State Government was the appointing authority in respect of both the petitioners serving under the Health Department and as provided in Rule 71(a) of the Code, the appropriate authority could pass the orders of compulsory retirement, but as has rightly been submitted before us by the learned Government Advocate, placing reliance on letter No. 9406 Gen. dated the 13th June, 1974, addressed to all Secretaries to Government, all Heads of Departments and all District Officers where the Review Committee has come to a conclusion that a non-gazetted Officer should be retired prematurely, the Review Committee may make a proposal accordingly in the proceeding to be recorded with full reasons for the proposal and the Administrative Department controlling the services to which the non-gazetted Officer belongs will process the proposal and obtain Government orders. The impugned orders cannot, therefore, be called in question on the ground that the State Government and not the appointing authority of the two petitioners had passed the orders.

8. The learned Government Advocate has, for our consideration, placed the proceedings of the Review Committee and the Confidential Character Rolls in respect of both the petitioners. The learned Counsel for the petitioner has rightly submitted that adverse entries made in the Confidential Character Roll prior to the crossing of the efficiency bar by Government employees are not to be considered against them while forming the requsite opinion for ordering compulsory retirement and his contention finds support in the observations made in the case of Swami Saran Saksena v. State of Uttar Pradesh 1980-I L.L.J. 103. The petitioner Nalini Das has asserted in her application that for her good and efficient work, she had been promoted as Lady Health Visitor and had been allowed to cross the efficiency bar with effect from 1-1-65 by the order dated 15-1-1971, But the remarks recorded in the Confidential Character Roll in respect of her for the subsequent years were highly unsatisfactory. The remarks in the Confidential Character Roll in respect of the petitioner Baikunthanath Das have also been highly unsatisfactory. He has been found to be most insincere, irregular in habits and negligent and besides being a person of doubtful integrity, he had been quarrelsome with his colleagues and superior officers and had been creating problems for administration. It would not stand to common sense, much less to reason, that successive Civil Surgeons and Chief District Medical Officers would all be prejudiced against him and out of bias made these adverse entries. If in the exigencies of service, administrative grounds, or for his own official misconduct, or lack of decorum or other substantial reasons, transfers of this petitioners had been effected or he had been placed under suspension at one stage although the order of suspension was later revoked, the authorities could not be found fault with. The materials placed before us do not justify a conclusion that the remarks in the Confidential Character Roll had not duly and properly been recorded. 1 he contention that the remarks in the Confidential Character Roll cannot be relied on against them because the adverse entries had not been communicated cannot be accepted in view of the dictum of the Supreme Court in the case of Union of India, etc. v. M.E. Reddy and Anr. 1980-I L.L.J. 7,to the effect that the confidential reports can be considered by the appointing authority in passing the order of retirement even if such reports are not communicated to the Officer concerned.

9. On a consideration of the service records of the two petitioners including the remarks in the Confidential Character Roll and some other reports made against the petitioner, Baikunthanath Das, the Review Committee, consisting of officers of the rank of Secretary to Government in the Health Department and Director of Health Services besides the Chief District Medical Officer, was of the view that both the two petitioners should be retired compulsorily and it could not be said that the appropriate authority had not formed the requisite opinion before passing the impugned orders or that the orders had been passed arbitrarily or on collateral grounds. The impugned orders had not been passed in violation of the rules and guide line laid down by the State Government. Both the orders had validly been passed in public interest under Rule 71(a) of the Code and no mala fides could be attributed to the appropriate authority.

10. We, therefore, find that the impugned orders cannot be called in question and are not to be annulled. It has, however, been averred by the petitioner Baikunthanath Das in his affidavit that some representations made by him with regard to his service benefits are pending with the State Government and this would also be found from the counter-affidavit of the State. We would, therefore, while dismissing the writ applications in both the cases calling in question the orders of compulsory retirement, direct the State Government to dispose of the representations made by the petitioner Baikunthanath Das within six months from the date of communication of this order. If some papers in connection with the representations are required to be submitted by the petitioner, the State Government shall intimate the petitioner within a month from the communication of this order to produce the same and the petitioner shall produce the relevant papers within a month therefrom.

11. We make no order as to costs. Petition dismissed.


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