CENTRAL INDUSTRIAL SECURITY FORCE versus OM PRAKASH

[2022] 2 S.C.R. 203

CENTRAL INDUSTRIAL SECURITY FORCE

OM PRAKASH

(Civil Appeal No. 5428 of 2012)

FEBRUARY 04, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Service Law – CCS (Pension) Rules, 1972 – Prematureretirement – Adverse remarks – Consideration of – Order ofpremature retirement passed against respondent, set aside by HighCourt on the ground that that he was promoted as Head Constablein year 2000 and thus, the penalties imposed prior to 2000 have tobe ignored while determining the suitability to be retained in service– On appeal, held: High Court has not only misread the judgmentof Supreme Court in Baikuntha Nath Das and Another v. Chief DistrictMedical Officer, Baripada and Another reported as [1992] 1 SCR 836but wrongly applied the principles laid down therein – Adverseremarks can be taken into consideration – Also, there is factualerror in the order of High Court that there are no adverse remarksand that the ACRs for the year 1990 till 2009 were either good orvery good – However, the summary of ACRs reproduced by the HighCourt itself shows average, satisfactory and in fact below averagereports as well – Entire service record is to be taken intoconsideration while passing the order of premature retirement whichwould include the ACRs of the period prior to the promotion, thoughthe recent reports would carry their own weight – In the presentcase, in the last 5 years, the respondent has been graded average –Further, he was awarded number of punishments prior to hispromotion including receiving illegal gratification while on duty –There are also allegations of absence from duty, overstaying of leave– After promotion also, punishment of four days fine was imposedon the charge of sleeping on duty and two days fine was imposedfor overstaying from joining time – Order of High Court settingaside the order of premature retirement set aside.

Judicial Review – Scope of – Compulsory retirement – HighCourt setting aside the order of premature retirement, referred tothree Judge Bench judgment of Supreme Court in Baikuntha Nath

ADas and Another v. Chief District Medical Officer, Baripada and Anotherreported as [1992] 1 SCR 836 – Held: High Court misread the saidjudgment which holds that order of compulsory retirement is not apunishment – It implies no stigma nor any suggestion ofmisbehaviour – Order of compulsory retirement is in public interestand is passed on the subjective satisfaction of the Government andBis not liable to be quashed by the Court merely for the reason thatuncommunicated adverse remarks were taken into consideration.

Baikuntha Nath Das and Another v. Chief DistrictMedical Officer, Baripada and Another (1992) 2 SCC299 : [1992] 1 SCR 836; Union of India v. M. E. ReddyCand Another (1980) 2 SCC 15 : [1980] 1 SCR 736;Posts and Telegraphs Board and Others v. C.S.N.Murthy (1992) 2 SCC 317 : [1992] 2 SCR 338; Unionof India and Others v. Dulal Dutt (1993) 2 SCC 179 :[1993] 1 SCR 853; Secretary to the Government andDAnother v. Nityananda Pati (1994) SCC (L&S) 1052;Union of India v. V.P. Seth and Another (1993) Supp 2SCC 391; State of Punjab v. Gurdas Singh (1998) 4SCC 92; State of U.P. and Others v. Raj Kishore Goel(2001) 10 SCC 183; Rajasthan State Road TransportCorporation and Others v. Babu Lal Jangir (2013) 10ESCC 551 : [2013] 11 SCR 159; Brij Mohan Singh v.Chopra v. State of Punjab (1987) 2 SCC 188 : [1987]2 SCR 583; Pyare Mohan Lal v. State of Jharkhandand Others (2010) 10 SCC 693; Ram Murti Yadav v.State of Uttar Pradesh and Another (2020) 1 SCC 801F: [2019] 14 SCR 818 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5428of 2012.

From the Judgment and Order dated 14.10.2011 of the High Courtof Delhi at New Delhi in W.P. No.7471 of 2011.

Ms. Madhvi Divan, ASG, Akshay Amritanshu, Rajesh K. Singh,Mohd. Akhil, Sandeep Kumar Mahapatra, Ayush Puri, K Sharma, B.Krishna Prasad, Advs. for the Appellant.

Anil Mittal, Vibhuti Sushant Gupta, Ram Naresh Yadav, Advs. forthe Respondent.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.

1. The present appeal arises out of an order dated 14.10.2011passed by the Division Bench of the High Court of Delhi whereby theorder of premature retirement passed against the respondent was setaside.

2. The respondent, Head Constable Om Prakash[1] was prematurelyretired on 16.08.2011 in exercise of the powers conferred under Rule56(j) of the Fundamental Rules read with Rule 48(1)(b) of CCS (Pension)Rules, 1972[2] after completion of 30 years of service. The order is to theeffect that the Superannuation Review Committee under Rule 48(1)(b)of the Rules found the writ petitioner not fit to continue in service beyond30 years of qualifying service with immediate effect.

3. In the writ petition challenging such order, the High Court setaside the order of premature retirement on the ground that the writpetitioner was promoted as Head Constable on 14.06.2000 and thus

1 Hereinafter referred to as the ‘Writ Petitioner’

2 For short ‘the Rules’

Apenalties imposed prior to the year 2000 have to be ignored whiledetermining suitability of the writ petitioner to be retained in service.The two penalties of sleeping on duty and overstaying leave by two dayswere inflicted in the year 2005 and 2008 respectively which were minorpenalties. The Annual Confidential Reports[3] grading of the writ petitionerin the preceding five years have to be considered with greater focusBwhile noticing the fact that even earlier ACR’s had to be taken intoconsideration. The ACR’s from 1990 till the year 2009 were either goodor very good. The ACR for the year 2010 was graded average but thesame was not conveyed to the writ petitioner. Therefore, such ACRcould not be taken into consideration while arriving at an opinion that theCwrit petitioner is dead wood. The High Court referred to three JudgeBench judgment of this Court reported as Baikuntha Nath Das andAnother v. Chief District Medical Officer, Baripada and Another[4]wherein it has been held that the order of compulsory retirement is not apunishment. It implies no stigma nor any suggestion of misbehaviour.The order of compulsory retirement is in public interest and is passed onDthe subjective satisfaction of the Government and is not liable to bequashed by the Court merely for the reason that uncommunicatedadverse remarks were taken into consideration.

4. This Court approved the earlier judgment of this Court reportedas Union of India v. M. E. Reddy and Another[5] wherein it was heldEas under:

“12. An order of compulsory retirement on one hand causes noprejudice to the government servant who is made to lead restfullife enjoying full pensionary and other benefits and on the othergives new animation and equanimity to the Services. TheFemployees should try to understand the true spirit behind the rulewhich is not to penalise them but amounts just to fruitful incidentof the Service made in the larger interest of the country. Even ifthe employee feels that he has suffered, he should derive sufficientsolace and consolation from the fact that this is his smallGcontribution to his country, for every good cause claims its martyr.”

5. We find that the High Court has completely misdirected itselfwhile setting aside the order of premature retirement of the writ petitioner.

3 ACR4 (1992) 2 SCC 299H5 (1980) 2 SCC 15

The writ petitioner has been awarded number of punishments prior tohis promotion including receiving illegal gratification from transporterwhile on duty in the year 1993. There are also allegations of absencefrom duty and overstaying of leave. After promotion, punishment offour days fine was imposed on the charge of sleeping on duty and twodays fine was imposed for overstayed from joining time. Apart from thesaid punishments, the writ petitioner has mixed bag of ACRs such asaverage, below average, satisfactory good and very good. In the last 5years, he has been graded average for the period 01.01.2010 to31.12.2010.

6. After the judgment in Baikuntha Nath Das, three JudgeBench in judgment reported as Posts and Telegraphs Board andOthers v. C.S.N. Murthy[6] held that the courts would not interfere withthe exercise of the power of compulsory retirement if arrived at bonafidelyand on the basis of material available on record. The Court held asunder:

“5. ….Whether the conduct of the employee is such as to justifysuch conclusion is primarily for the departmental authorities todecide. The nature of the delinquency and whether it is of such adegree as to require the compulsory retirement of the employeeare primarily for the Government to decide upon. The courts willnot interfere with the exercise of this power, if arrived at bonafide and on the basis of material available on the record. No malafides have been urged in the present case. The only suggestion ofthe High Court is that the record discloses no material which wouldjustify the action taken against the respondent. We are unable toagree. In our opinion, there was material which showed that theefficiency of the petitioner was slackening in the last two years ofthe period under review and it is, therefore, not possible for us tofault the conclusion of the department as being mala fide, perverse,arbitrary or unreasonable.”

7. three Judge Bench of this Court reported as Union of Indiaand Others v. Dulal Dutt[7] examined the order of compulsory retirementof Controller of Stores in Indian Railway. It was held that an order ofcompulsory retirement is not an order of punishment. It is prerogative

6 (1992) 2 SCC 317

7 (1993) 2 SCC 179

DEF

Aof the Government but it should be based on material and has to bepassed on the subjective satisfaction of the Government and that it is notrequired to be speaking order. This Court held as under:

“18. It will be noticed that the Tribunal completely erred inassuming, in the circumstances of the case, that there ought toBhave been speaking order for compulsory retirement. This Court,has been repeatedly emphasising right from the case of R.L.Butail v. Union of India [(1970) 2 SCC 876] and Union ofIndia v. J.N. Sinha [(1970) 2 SCC 458] that an order of acompulsory retirement is not an order of punishment. It is actuallya prerogative of the Government but it should be based on materialCand has to be passed on the subjective satisfaction of theGovernment. Very often, on enquiry by the Court the Governmentmay disclose the material but it is very much different from thesaying that the order should be speaking order. No order ofcompulsory retirement is required to be speaking order. FromDthe very order of the Tribunal it is clear that the Government had,before it, the report of the Review Committee yet it thought it fitof compulsorily retiring the respondent. The order cannot be calledeither mala fide or arbitrary in law.”

8. In another judgment reported as Secretary to the GovernmentEand Another v. Nityananda Pati[8], the order of the High Court settingaside the compulsory retirement for the reason that certainuncommunicated adverse remarks were taken into consideration wasset aside by this Court.

9. In Union of India v. V.P. Seth and Another[9], relying uponFBaikuntha Nath Das and other judgments, it was held as under:

“3. These principles were reiterated with approval in the subsequentdecision. It would, therefore, seem that an order of compulsoryretirement can be made subject to judicial review only on groundsof mala fides, arbitrariness or perversity and that the rule of audiGalteram partem has no application since the order of compulsoryretirement in such situation is not penal in nature. The positionof law having thus been settled by two decisions of this Court, weare afraid that the order of the Tribunal cannot be sustained as

8 (1993) Supp 2 SCC 391H9 (1994) SCC (L&S) 1052

the same runs counter to the principles laid down in the said twodecisions.”

10. three Judge Bench of this Court in judgment reported asState of Punjab v. Gurdas Singh[10] considered the argument that theorder of compulsory retirement was based on material which was non-existent inasmuch as there were no adverse remarks against him and ifthere were any such remarks, it should have been communicated tohim. This Court held as under:

“11. …..Before the decision to retire government servantprematurely is taken the authorities are required to consider thewhole record of service. Any adverse entry prior to earning ofpromotion or crossing of efficiency bar or picking up higher rankis not wiped out and can be taken into consideration whileconsidering the overall performance of the employee during wholeof his tenure of service whether it is in public interest to retain himin the service. The whole record of service of the employee willinclude any uncommunicated adverse entries as well.”

11. In State of U.P. and Others v. Raj Kishore Goel[11], the orderof the High Court setting aside the order of compulsory retirement wasset aside when the order of compulsory retirement was on account ofuncommunicated ACR.

12. In the judgment reported as Rajasthan State Road TransportCorporation and Others v. Babu Lal Jangir[12], the High Court hadtaken into consideration adverse entries for the period 12 years prior topremature retirement. This Court held that Brij Mohan Singh Choprav.State of Punjab[13]was overruled only on the second proposition that anorder of compulsory retirement is required to be passed after complyingwith the principles of natural justice. This Court also considered the“washed-off theory” i.e., the remarks would be wiped off on account ofsuch record being of remote past. Reliance was placed upon threeJudge Bench judgment of this Court reported as Pyare Mohan Lal v.State of Jharkhand and Others[14]and it was observed that:

10 (1998) 4 SCC 92

11 (2001) 10 SCC 183

12 (2013) 10 SCC 551

13 (1987) 2 SCC 188

14 (2010) 10 SCC 693

“22. It clearly follows from the above that the clarification givenby two-Judge Bench judgment in Badrinath [(2000) 8 SCC 395: 2001 SCC (L&S) 13 : (2000) 6 Scale 618] is not correct and theobservations of this Court in Gurdas Singh [(1998) 4 SCC 92 :1998 SCC (L&S) 1004 : AIR 1998 SC 1661] to the effect that theadverse entries prior to the promotion or crossing of efficiencybar or picking up higher rank are not wiped off and can be takeninto account while considering the overall performance of theemployee when it comes to the consideration of case of thatemployee for premature retirement.23. The principle of law which is clarified and stands crystallisedafter the judgment in Pyare Mohan Lal v. State ofJharkhand [(2010) 10 SCC 693 : (2011) 1 SCC (L&S) 550] is thatafter the promotion of an employee the adverse entries prior theretowould have no relevance and can be treated as wiped off whenthe case of the government employee is to be considered for furtherpromotion. However, this “washed-off theory” will have noapplication when the case of an employee is being assessed todetermine whether he is fit to be retained in service or requires tobe given compulsory retirement. The rationale given is that sincesuch an assessment is based on “entire service record”, there isno question of not taking into consideration the earlier old adverseentries or record of the old period. We may hasten to add thatwhile such record can be taken into consideration, at the sametime, the service record of the immediate past period will have tobe given due credence and weightage. For example, as againstsome very old adverse entries where the immediate past record

shows exemplary performance, ignoring such record of recentpast and acting only on the basis of old adverse entries, to retire aperson will be clear example of arbitrary exercise of power.However, if old record pertains to integrity of person then thatmay be sufficient to justify the order of premature retirement ofthe government servant.”

13. There are numerous other judgments upholding the orders ofpremature retirement of judicial officers inter alia on the ground that thejudicial service is not akin to other services. person discharging judicialduties acts on behalf of the State in discharge of its sovereign functions.Dispensation of justice is not only an onerous duty but has been considered

as discharge of pious duty, therefore, it is very serious matter. ThisCourt in Ram Murti Yadav v. State of Uttar Pradesh and Another[15]held as under:

“6. ….The scope for judicial review of an order of compulsoryretirement based on the subjective satisfaction of the employer isextremely narrow and restricted. Only if it is found to be based onarbitrary or capricious grounds, vitiated by mala fides, overlooksrelevant materials, could there be limited scope for interference.The court, in judicial review, cannot sit in judgment over the sameas an appellate authority. Principles of natural justice have noapplication in case of compulsory retirement.”

14. Thus, we find that the High Court has not only misread thejudgment of this Court in Baikuntha Nath Das but wrongly applied theprinciples laid down therein. The adverse remarks can be taken intoconsideration as mentioned in the number of judgments mentioned above.There is also factual error in the order of the High Court that there areno adverse remarks and that the ACRs for the year 1990 till the year2009 were either good or very good. In fact, the summary of ACRs asreproduced by the High Court itself shows average, satisfactory and infact below average reports as well.

15. The entire service record is to be taken into considerationwhich would include the ACRs of the period prior to the promotion. Theorder of premature retirement is required to be passed on the basis ofentire service records, though the recent reports would carry their ownweight.

16. In view of the said fact, we find that the order of the HighCourt setting aside the order of premature retirement is clearlyunsustainable and is set aside. The appeal is allowed. The writ petitionthus stands dismissed.

Divya Pandey

Appeal allowed.