1. The petitioner joined Gujarat Electricity Board as a Sub-Engineer in 1957 and by 1971 he rose to the position of an Executive Engineer. After he completed the age of 50 years, the respondent-Board by its order dated 4-6-1980 retired him compulsorily. This order of premature compulsory retirement is challenged in this petition.
2. It is not in dispute that the order of compulsory retirement was passed by the respondent Board in exercise of its powers under Regulation 72 of the Gujarat Electricity Board Service Regulations (hereafter referred to as 'the Regulation'). Power of the respondent Board to take such an action is not disputed. What is challenged is the action of the respondent Board in retiring the petitioner compulsorily on the ground that the action is not consistent with the criteria fixed by the aid Regulation.
3. Regulation No. 72 provides for retirement on the date of the completion of 58 years of age. It also provides that the appointing authority may, without assigning any reason, retire an employee by giving him notice of not less than three months in writing or three months' salary in lieu of such notice, on or after the date on which he attains the age 50 years. Note below that regulation lays down the criteria and procedure to be observed to ensure uniform and equitable application of the main provision. Relevant part of the Note is as under :
'Note : The following criteria and procedure should be observed to ensure uniform and equitable application of this provisions :
(i) Six months before an employee of the Board attains the age of 50/55 years his record should be carefully examined by the authority competent to make appointment to the post which he is holding whether in an officiating or substantive capacity and a decision should be taken as to whether he should be retired on attaining the age of 50/55 years.
(ii) In a case in which the competent authority concerned has reasonable cause to believe that the employee of the Board is lacking in integrity it would be appropriate to consider him for premature retirement irrespective of an assessment of his ability or efficiency in work.
(iii) In case in which an employee's integrity is not in doubt but his physical or mental conditions is such as to affect adversely his efficiency or ability for further service, it would be appropriate to consider him for premature retirement.
*** *** *** *** (iv) Subject to the considerations mentioned in sub-paragraphs (ii) and (iii) above an employee with a satisfactory record of service should not be retired prematurely. *** *** *** ***
What is contended on behalf of the petitioner or is that the word 'should' occurring in note No. (iv) really means 'shall' as held by this Court in V. C. Shroff v. Gujarat Electricity Board, 19 G.L.R. page 778, and, therefore, except in the cases contemplated by notes Nos. (ii) and (iii), an employee of the Board cannot be retired prematurely. Relying upon the following observations :
'After laying down those two positive and clearly identifiable grounds, the Board further proceeded to lay down in note (iv) that an employee, who does not fall within the categories mentioned in notes (ii) and (iii) shall not be retired prematurely. In the light of notes (ii) and (iii), the only import that can be given to this note (iv) is that barring these obviously reasonable criteria set out in notes (ii) and (iii), there should be no ground which should make the appointing authority retire any employee prematurely.'
Made by the Court in that case, it is submitted that an employee of the Board can be retired prematurely only if (1) the employee is found to be lacking in integrity or (2) his physical or mental condition is such as to affect adversely his efficiency of ability for further service, and not on any other ground. This submission cannot be accepted, for the reasons which follow.
4. After considering the various shades, aspects, purport and object of provision of such a type, the Supreme Court in Union of India v. J. N. Sinha [1970-II LLJ 284], has observed as follows :
'Compulsory retirement involves no civil consequences. The aforementioned Rule 56(J) is not intended for taking any penal action against the Government servants. That rule merely embodies one of the facts of the pleasure doctrine embodied one of the facts of the pleasure doctrine embodied in Art. 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a Particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may retire that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organisations and more so in Government organisations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(J) holds the balance between the right of the individual government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power, exercise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interests.'
Again in Union of India v. M. E. Reddy, [1980-I LLJ 7], while illustrating the jurisprudential philosophy of such a provision, the Supreme Court observed :
'11. It seems to us that the main object of this Rule is to instil a spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as the services are one of the pillars of our great democracy. Any element of constituent of the service which is found to be lax or corrupt, inefficient or not upto the mark or has outlived its utility has to be weeded out. Rule 16(3) provides the methodology for achieving this object. We must, however, hasten to add that before the Central Government invokes the power under Rule 16(3), it must take particular care that the rule is not used as a ruse for victimisation by getting rid of honest and unobliging officers in order to make way for incompetent favourities of the Government which is bound to lead to serious demoralisation in the service and defeat the laudable object which the rule seeks to subserve. If any such case comes to the notice of the Government the officer responsible for advising the Government must be strictly dealt with. Compulsory retirement contemplated by the aforesaid rule is designed to infuse the administration with initiative and inertia (sic) so that it is made poignant and piquant, specious and subtle so as to meet the expanding needs of the nation which require exploration of 'fields and parties new'. Such a retirement involves no strain or stigma nor does it entail any penalty or civil consequences. In fact, the rule merely seeks to strike a just balance between the termination of the completed career of a tired employee and maintenance of top efficiency in the diverse activities of the administration.
12. An order of compulsory retirement on one hand causes no prejudice to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the services. The employees should try to understand the true spirit behind the rule which is not to penalise them but amounts just to a fruitful incident of the service made in the large interests of the country. Even if the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to his country for every good cause claims its martyr.'
These observations clearly reveal the object of such a provision and further help in deciding the scope and ambit thereof. After considerating the language of Rule 56(1) in Sinha's case and Rule 16(3) in Reddy's case, the Supreme Court held that an absolute right is given to the authorities concerned to retire its employees. The Rule in the present case though not in the same terms is similar to the Rules with which the Supreme Court was concerned in the aforementioned cases. Following the ratio laid down by the Supreme Court in those cases, it is held that right of the respondent-Board to retire its employee prematurely is absolute, but that power can be exercised subject to the conditions mentioned in the Rule.
5. In Special Civil Application No. 1142 of 1976, decided by Obul Reddy, C.J., and Bhatt, J., on 30th November, 1976, the question which had arisen was whether Notes (i) and (v) in any way circumscribed or narrowed down the ambit of the main provision. This Court answered it in the negative by observing that what has been provided in these notes is only the procedural aspect.
6. In V. C. Shroff's case, this Court was really concerned with the notes providing for the criteria and their effect on the main provision. It held that the notes laying down the criteria are the substantive part of the regulation. It then made observations which are quoted above. Those observations read out of context do create an impression that except on the grounds mentioned in Notes (ii) and (iii) the Board cannot retire its employee prematurely; but if the paragraph in which they appear is read as a whole, then it becomes clear that what is held in that case is that the right of the Board to compulsorily retire its employees prematurely has to be exercised not only subject to the conditions contained in the main provision but also in Notes (ii), (iii) and (iv). It does not lay down as an absolute proposition that the Board cannot prematurely retire its employee with an unsatisfactory record. Particularly the last sentence of that paragraph and more particularly the words 'whose record or service is otherwise satisfactory' make the position clear. Following observations in paragraph 12 :
'Only thing that could be available to the Board was the presence of a positively bad record that would make the petitioners unsuitable and consequently liable to be cut off from the service after 56 years of age. This is not the case here.'
also make the position clear.
7. On consideration of the case law and analysis of the Regulation, bearing in mind its object and scheme, the correct position as it emerges can be summarised as under :
1) Ordinarily an employee of the Board is entitled to continue till the completes the age of 58 years.
2) The Board has an absolute right to retire its employee. But that power can be exercised only if the following conditions are satisfied.
(i)(a) In case of a 'workman' as defined in the Industrial Disputes Act when he attains the age of 55 years. (b) In other cases when he attains the age of 50 years.
(ii) If his record of service is so unsatisfactory that he does not deserve to be retained in service.
(iii) Even though his service record is satisfactory, (if) (a) he is lacking in integrity or, (b) his physical or mental condition is such as to affect adversely his efficiency or ability for further service.
(iv) When an employee is retained beyond the age of 55/50 years, if a review is justified by special reasons such as his subsequent work or conduct or the state of his health which may make his earlier retirement clearly desirable.
To interpret Note (iv) and to construe Regulation 72 in any other manner would mean (1) ignoring the words 'with a satisfactory record of service' in Note (iv) and rewriting it by omitting those words; (2) stifling its object by making it almost ineffective; and (3) restricting its scope without any justification or achieving any better purpose.
3) The power to retire prematurely cannot be exercised in case an employee under suspension on a charge of misconduct, till the inquiry into the charge is concluded and a final order is passed.
8. It was next contended that the Board was not at all justified in retiring the petitioner prematurely on the ground that his record of service was unsatisfactory. The petitioner was allowed to cross the efficiency bar only two years before, on June 26, 1978. That would imply that his service record immediately before 1978 was good. What is urged is that for judging suitability or otherwise of an employee for retaining him in service after the specified age, the Board is required to come to a conclusion that the employee is bad enough to be chopped off from service and that has to be done by taking his three to five years' record of service into consideration. If the petitioner's performance was good in 1978 and immediately prior thereto, then it could not have become so bad within 2 years. It was also submitted that the Board in fact having proceeded on the basis that the record of the petitioner from 1974-75 onwards did not justify retaining him in service, its conclusion must be regarded as vitiated.
9. The petitioner had reached the stage of crossing the efficiency bar on 15th April, 1977. As his work was not found to be satisfactory and upto the mark so as to enable him to cross that bar a show-cause notice was given to him on 30th December, 1977. After considering his explanation, promise to put in more efforts and request for taking a sympathetic view, the Board permitted him to, cross it only with effect from 1st May, 1978. With the factual background, it is not possible to draw the inference suggested by the petitioner. Moreover, considerations which should weigh with the authorities on these two occasions would naturally be different in view of the different object sought to be achieved. It was only a circumstance in favour of the petitioner, but had not the effect of obliterating his previous unsatisfactory record. Even as regards the period what is to be seen is the record of service as a whole and not for a particular period or a particular year. This view is also supported by the decision of the Delhi High Court in Bhupinder Singh v. Union of India, 1976 (1) S.C.R. page. 774. The petitioner's performance, as pointed out by the Board in its reply, for the years 1975-76 to 1979-80 was below average or poor. Adverse and advisory remarks were communicated to the petitioner by communications dated 13th March, 1979, 9th November, 1979, 4th December, 1979 and 10th April, 1980. The petitioner's work after 1978, had gone from bad to worse as pointed out by the Board in its reply. For all these reasons the second contention also cannot be accepted.
10. It was then urged that the adverse remarks for the year 1977-78 were communicated to him for the first time on 4th December, 1979. No adverse remarks were communicated to him for the subsequent years. Since the adverse remarks for the year 1977-78 were communicated too late and other adverse remarks were not at all communicated to him, the Board should have ignored them while deciding whether the petitioner was required to be retired prematurely or not. It is urged that the Board having not done so, the impugned order is vitiated and deserved to be declared as null and void. In support of this submission, reliance was placed upon the following observation of the Supreme Court in State of Punjab v. Dewan Chuni Lal, A.I.R. 1970. Supreme Court, 2086 :
'In our view reports earlier than 1944 should not have been considered at all inasmuch as he was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944.'
11. In that case, penal action was sought to be taken against the delinquent officer on the basis of his unsatisfactory service record. In this case, the Board was considering whether the petitioner should be retained in service after he completed the age of 50 years or retired prematurely. It is now well-settled that premature or compulsory retirement is not a punishment. The reason why the adverse remarks on the basis of which penal action is proposed to be taken cannot be taken into consideration if they are not communicated to the employee concerned is that no person can be convicted on the basis of evidence which is not disclosed to him. While considering the question of premature retirement of an employee different considerations will apply. What is required to be seen in such a case is what is the overall performance of the employee concerned. For that purpose, entire service record is required to be seen. Each and every remark made against the employee in his confidential report is not required to be communicated to him. That will depend upon the Rules and Regulations governing the service conditions. No rule or regulation has been pointed out on behalf of the petitioner requiring the respondent Board to communicate every remarks made against an employee in his confidential report. This Court had an occasion to consider departmental instructions issued by the respondent-Board regarding writing and maintenance of confidential reports in respect of its employees in Special Civil Application No. 1142 of 1976 decided on 30th November, 1976. It observed :
'The context in which this communication of the adverse remarks is made is obviously on the face of it for different purpose. It is for the purpose of achieving better results. It has not nothing to do with the cases of premature retirement under Regulation 72, which is the bone of contention before us.'
Again, as pointed out by the Supreme Court in M. E. Reddy's case the object of compulsory retirement under Rule 16(3) is to weed out the dead wood in order to maintain a high standard of efficiency and initiative in service. The rule is but one of the facts of the doctrine of pleasure incorporated in Art. 310 and gives an absolute right to the Government and not merely a discretion, and, therefore, impliedly it excludes the rules of natural justice. With regard to need of communicating adverse remarks, it observed :
'In the first place, under the various rules on the subject it is not every adverse entry or remark that has to be communicated to the officer concerned. The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. Some of these remarks may be purely innocuous, or may be connected with general reputation of honesty or integrity that a particular officer enjoys.'
It also quoted with approval the following passage from its earlier in decision R. L. Butail v. Union of India, [1070-II L.L.J. 514]
'These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as date of comparative merit when the questions of promotion, confirmation, etc. arise. They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant. In such a case the officer making the order has to give a reasonable opportunity to the Government servant to present his case. The contention, therefore, that the adverse, remarks did not contain specific instances and were, therefore, contrary to the rules, cannot be sustained. Equally unsustainable is the corollary that because of that omission the appellant could not make an adequate representation and that therefore, the confidential reports are vitiated. It may be that in spite of the work of the appellant being satisfactory, as he claimed it was, there may have been other relevant factors, such as the history of the appellant's entire service and confidential reports throughout the period of his service, upon which the appropriate authority may still decided to order appellant's retirement under F.R. 56(j).
12. Therefore, even if we proceeded on the basis that adverse remarks for the year 1977-78 were communicated late and no other adverse remarks were communicated at all, the order of premature retirement cannot be said to be bad. Factually also, the basis on which the petitioner's contention is founded is not correct. As pointed out in the reply, the adverse remarks for the out in the reply, the adverse remarks for the period 1st April, 1978 to 31st December, 1978 and for the year 1979 were in fact communicated to the petitioner in December, 1979 and April, 1980 respectively. For all these reasons, third and the last contention also cannot be accepted.
13. In the result, this petition fails and Rule is discharged with no order as to costs.