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PETITIONER:

POST AND TELEGRAPH BOARD AND ORS.

Vs.

RESPONDENT:

C.S.N. MURTHY

DATE OF JUDGMENT26/03/1992

BENCH:

RANGNATHAN, S.

BENCH:

RANGNATHAN, S.

RAMASWAMI, V. (J) II

YOGESHWAR DAYAL (J)

CITATION:

1992 AIR 1368 1992 SCR (2) 338

1992 SCC (2) 317 JT 1992 (2) 357

1992 SCALE (1)727

ACT:

Service Law :

Fundamental Rules :

F.R. 56(j)-Compulsory retirement-Posts and Telegraphs

Department-Assistant Engineer-Service record-Review of-

Standard of work declined and not satisfactory for last two

years-No adverse remarks for previous years-Order of

compulsory retirement passed on recommendation of high power

committee-Validity of : whether courts should interfere

with.

HEADNOTE:

The case of the respondent, an Assistant Engineer in

Posts and Telegraphs Department, was considered for

compulsory retirement under Fundamental Rule 56(j). There

were adverse remarks for the financial years 1970-71 and

1971-72 showing that respondent's standard of work had

declined and was not satisfactory. There was no material

adverse to the respondent up to the year 1969-70. On the

recommendation of a high power committee, he was

compulsorily retired from service in February, 1973.

Respondent's writ petition challenging his compulsory

retirement was dismissed by the High Court; but the Division

Bench of the High Court allowed his appeal holding that the

order of retirement was not found on any relevant material

and was arbitrary and capricious. The Union of India filed

the appeal by special leave to this Court.

Allowing the appeal, this Court,

HELD : 1. Notwithstanding the earlier record of the

respondent being good, if the record showed that the

standard of work of the respondent had declined and was not

satisfactory, that was certainly material enabling the

department to come to a conclusion under Fundamental Rule 56

(j). [p.343 CD]

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2. There were adverse entires against the respondent

for the financial years 1970-71 and 1971-72. The purport of

the confidential reports of these years was placed before

this Court and had also been referred to by the High Court.

They were objective appraisals of respondent's work. The

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adverse remarks for the year 1971-72 standing by themselves,

can constitute sufficient material for the Department to

come to the conclusion. There was material for the

Department to come to the conclusion. There was material to

show that the efficiency of the respondent was slackening in

the last two years of th period under review and it is,

therefore, not possible to fault the conclusion of the

department as being mala fide, perverse, arbitrary or

unreasonable. [pp.341GH; 342A; 343A-C]

3. The Division Bench of the High Court erred in

setting aside the order of compulsory retirement on the

basis that there was no material on recored justifying the

action against the respondent. [p.343D]

4. An order of compulsory retirement under Fundamental

Rule 56(j) is not an order or punishment. The nature of the

delinquency and whether it is of such a degree as to require

the compulsory retirement of the employee are primarily for

the Government to decide upon. The Courts will not

interfere with the exercise of this power if arrived at bona

fide and on the basis of material available on the record.

[p.342FG]

Baikuntha Nath Das v. Chief District Medical Officer,

Baripada, 1992 2 J.T. 1 (S.C.), relied on.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1299

of 1976.

From the Judgment and Order dated 20.7.1976 of the

Andhra Pradesh High Court in W.A. No. 855 of 1974.

V.C Mahajan and C.V.S. Rao for the Appellants.

R. Venkataramani, S.M. Garg, T. Lajapathi Roy and Ms.

Rani Chhabra for the Respondents.

The Judgment of the Court was delivered by

RANGANATHAN, J. The respondent, C.S.N. Murthy, was an

Assistant Engineer in the Telecommunication Training Centre

at Hyderabad. He was normally due to retire from service in

1980. However, the

340

provisions of rule 56(j) of the Fundamental Rules were

invoked in his case. A high powered committee consisting of

the Secretary to the Ministry of Finance and the Joint

Secretary to the Cabinet Secretariat reviewed the service

records of 96 persons belonging to the Department. The

committee recommended, on an overall assessment of the

confidential records, that there was no justification for

continuing the petitioner and two others (with whom we are

not here concerned) in service. Accepting the

recommendations of the committee, the Posts and Telegraphs

Board issued a notice on the respondent on 19.10.73 giving

him notice of compulsory retirement under fundamental rule

56(j) with effect from the expiry of three months from the

date of service of the notice on him. Consequent thereupon,

the respondent's services came to an end, by way of

compulsory retirement, in February 1974.

The respondent filed a writ petition in the Andhra

Pradesh High Court challenging the validity of the order of

compulsory retirement but the writ petition was

unsuccessful. However, the appeal preferred by him to a

Division Bench of the High Court was allowed. The Division

Bench, in its judgment and order dated 19.7.76, came to the

conclusion that the impugned order of retirement was not

founded on any relevant material and was arbitrary and

capricious. The impugned order was, therefore, quashed and

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the petitioner was directed to be reinstated forthwith with

all the benefits that could have accrued to him had the

order not been implemented against him. The Union of India

has preferred the present appeal.

The modalities for the invocation of fundamental rule

56(j) have been examined by a number of decisions of this

Court. All these judgments have been reviewed and the legal

principles applicable thereto have been summarised by B.P.

Jeevan Reddy J., speaking for the Supreme Court, in

Baikuntha Nath Das v. Chief District Medical Officer,

Baripada, 1992-2 J.T. 1 (S.C.). These principles have been

set out in paragraph 32 of the judgment, which can be

extracted here for purposes of convenient reference:

32. The following principles emerge from the above

discussion:

(i) An order of compulsory retirement is not a

punishment. It implies no stigma nor any

suggestion of misbehaviour.

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(ii) The order has to be passed by the Government

on forming the opinion that it is in the public

interest to retire a Government servant

compulsorily. The order is passed on the

subjective satisfaction of the Government.

(iii) Principles of natural justice have no place

in the context of an order of compulsory

retirement. This does not mean that judicial

scrutiny is excluded altogether. While the High

Court or this Court would not examine the matter

as a appellate court, they may interfere if they

are satisfied that the order is passed (a) mala

fide or (b) that it is based on no evidence or (c)

that it is arbitrary- in the sense that no

reasonable person would form the requisite opinion

on the given material; in short, if it is found to

be a perverse order.

(iv) The Government (or the Review Committee, as

the case may be) shall have to consider the entire

record of service before taking a decision in the

matter of course attaching more importance to

record of and performance during the later years.

The record to be so considered would naturally

include the entries in the confidential

records/character rolls, both favourable and

adverse. If a Government servant is promoted to a

higher post notwithstanding the adverse remarks,

such remarks lose their sting, more so, if the

promotion is based upon merit (selection) and not

upon seniority.

(v) An order of compulsory retirement is not

liable to be quashed by a Court merely on showing

that, while passing it uncommunicated adverse

remarks were also taken into consideration. That

circumstance by itself cannot be a basis for

interference.

Interference is permissible only on the grounds

mentioned in (iii) above. This aspect has been

discussed in paras 29 to 31 above.

In the present case, the service records of the

petitioner were reviewed by a high powered committee. It is

true that there was no material adverse to the respondent

upto the year 1969-70. But there were adverse entries for

the financial years 1970-71 and 1971-72. The purport of the

342

confidential reports of these years has been placed before

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this court and had also been referred to by the High Court.

These have been set out in letters addressed to the

respondent by his superiors on 29.4.1971 and 15.4.1972

respectively. A perusal of these letters shows that they

were objective appraisals of the petitioner's work during

the two financial years in question. They point out that

certain aspects of the respondent's working were quite

satisfactory but they also emphasise that certain

deficiencies were found in his work during these years for

which he was duly cautioned. In the first letter he was

cautioned to take more interest in Auto Manual Positions'

functioning and against indulging in disrespectful language

towards superiors. The petitioner's capacity for tact and

courtesy was described as not satisfactory. It was also

observed that he had not taken adequate interest in his job,

that his handling of staff has also not been satisfactory

leading to several complaints, and that there were cases of

delays, bad relations and technical neglect, calling for

improvement. The letter dated 15.4.72, likewise, after

referring to the favourable remarks earned by the respondent

emphasised three aspects on which the petitioner's conduct

was unsatisfactory. He had been warned for delay in

disposal of complaint cases, for delay in confirming a

deceased official and for not taking timely action for

clearance of jungle on "main line Cuddapah-Tadparti."

It will be clear from the extracts referred to above,

that though the respondent's conduct was quite satisfactory

till March 1970, his standard of work had declined in the

last two years under review. In both these years, it was

found that he was not taking adequate interest in his work

and was responsible for delays of various kinds. As has

already been pointed out, an order of compulsory retirement

is not an order of punishment. Fundamental Rule 56(j)

authorises the Government to review the working of its

employees at the end of their period of service referred to

therein and to require the servant to retire from service

if, in its opinion, public interest calls for such an order.

Whether the conduct of the employee is such as to justify

such a conclusion is primarily for the departmental

authorities to decide. The nature of the delinquency and

whether it is of such a degree as to require the compulsory

retirement of the employee are primarily for the Government

to decide upon. The courts will not interfere with the

exercise of this power, if arrived at bona fide and on the

basis of material available on the record. No mala fides

have been urged in the present case. The only suggestion of

the High Court is that the record discloses no

343

material which would justify the action taken against the

respondent. We are unable to agree. In our opinion, there

was material which showed that the efficiency of the

petitioner was slackening in the last two years of the

period under review and it is, therefore, not possible for

us to fault the conclusion of the department as being mala

fide, perverse, arbitrary or unreasonable. The Division

Bench seems to have thought that, since the adverse remarks

mentioned in the earlier letter of 29th April, 1971 were not

repeated in the subsequent letter, it should be taken that

they had been given up subsequently or that the respondent

had improved in the subsequent year. We do not think that

this is a legitimate inference, for the report for 1971-72

only shows that the respondents' propensity to delay matters

persisted despite the warning of the previous year. But,

even if one assumes that the High Court was correct on this,

the adverse remarks made against the respondent in relation

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to the period 1971-72 standing by themselves, can constitute

sufficient material for the department to come to a

conclusion in the matter. It is true that the earlier

record of the respondent was good but if the record showed

that the standard of work of the respondent had declined and

was not satisfactory, that was certainly material enabling

the department to come to a conclusion under Fundamental

Rule 56(j). We are of opinion that the High Court erred in

setting aside the order of compulsory retirement on the

basis that there was no material at all on record justifying

the action against the respondent.

For the reasons mentioned above, we allow this appeal

and set aside the order of the Division Bench and restore

the order of the Single Judge of the High Court as well as

the order of compulsory retirement of the petitioner dated

29.10.71. We, however, make no order as to costs.

R.P. Appeal allowed.

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