Research › Browse › Judgment

Madras High Court · body

1978 DIGILAW 122 (MAD)

S. Lakshminarayanan v. The Secretary to the Government of Tamil Nadu, Department of Commercial Taxes and Religious Endowments, Madras-9

1978-02-11

S.MOHAN

body1978
.-In this writ petition the petitioner prays for certiorari to quash the order of compulsory retirement made in the impugned G.O. Ms. No. 1113 (Commercial Taxes and Religious Endowments Department), dated 19th September, 1975. The Order is very plain in its terms. It says: "Under Fundamental Rules 56 (d) Thiru Lakshminarayanan, Joint Commercial Tax Officer, Red Hills Division, Madras - 1, in the Tamil Nadu Commercial Taxes Service, shall retire from service from the date of this order. He shall be paid three months pay and allowances admissible to him on the date of retirement". Questioning this order, several arguments were raised when the matter was taken up by a Division Bench consisting of Ramaprasada Rao, J. and Ratnavel Pandian, J., who having held on those questions of law against the petitioner, directed the consideration of the writ petition in the following manner: "The next head of attack is that the order of compulsory retirement casts a stigma on the Officer and is, therefore, violative of Article 311 of the Constitution. Though in the first instance, it appeared as if the review committee was obliged to review cases of officers against whom corruption charges were levelled, by the time the review committee met on 5th September, 1975, the rule has been amended so as to include, besides officers suspected of corruption officers whose work was not upto the normal standard. Thus, it is not as if the order terminating the petitioner’s services necessarily and solely carried with it an implication that he was corrupt. Further, there is abundant authority for the proposition that the stigma must stem from the order itself and not be drawn out by a speculative process by reading into the order any innuendo from other circumstances or possibilities or suspicions. (Vide the decisions in State of Uttar Pradesh v. Sri Shyam Lal Sharma1; State of Uttar Pradesh v. Rant Chandra2 and Tara Singh v. State of Rajasthan3, and Sreshta v. Commissioner of Income-tax4). On a conjoint reading of G.O. Ms. No. 161, dated 19th March, 1972. G.O. Ms. No. 3321, dated 17th December, 1973 and G.O. Ms. No. 2580, dated 5th September, 1975, it does not appear to us that the review committees were formed with the sole purpose and intention of weeding out officers against whom complaints of corruption have been made in publice. Inefficient officers could also be weeded out. G.O. Ms. No. 3321, dated 17th December, 1973 and G.O. Ms. No. 2580, dated 5th September, 1975, it does not appear to us that the review committees were formed with the sole purpose and intention of weeding out officers against whom complaints of corruption have been made in publice. Inefficient officers could also be weeded out. If the records disclose a fair examination of the material to form in the minds eye the opinion that in public interest such officer should be retired, then there can be no complaint. The invocation of the surrounding circumstances should not be done as a matter of course. There should be compelling reasons for doing so. It has been repeatedly pointed out by the Supreme Court that Courts cannot delve, into the records and pierce the veil of the order for discovering a stigma. What is open to the Court is that it could find out a stigma if it is apparent on the record or otherwise clear, and springs from the order. (Vide the decision in State of Uttar Pradesh v. Sughar Singh1, State of Uttar Pradesh v. Ram Chandra2 and State of Bihar v. Shiv Bhikshuk Mishra3). Unless the Court is satisfied that such a stigma stems out from the order, an interference with an order of compulsory retirement is not envisaged while exercising the extraordinary jurisdiction under the Article. We began saying that at the request of counsel and in order to save the time of the Division Bench we were called upon to express our opinion on the questions argued before us. In the light of our views expressed above, these writ petitions are relegated back to the learned single Judge exercising writ jurisdiction for him to consider each of the writ petitions on its merits and dispose of the same in the light of our judgment as above." 2. This is how it comes up before me. The learned counsel for the petitioner urges the following points: (1) Inasmuch as the order of admonition by the Board of Revenue which was passed on 2nd September, 1975 and the impugned order of compulsory retirement had come to be served on the petitioner on the same day namely, 20th September, 1975, it must be held that it casts a stigma; and (2) There are not enough materials to hold that the petitioner is liable to be compulsorily retired. The learned Government Pleader submits, drawing my attention to the Division Bench decision in this very case, that it is not open to the Court to delve into the records and discover a case of stigma. The impugned order is plain in its terms passed in exercise of the powers under Fundamental Rule 56 (d). 3. Merely because the order of admonition and the impugned order came to be served on the petitioner accidentally on the same date namely 20th September, 1975 it cannot be said there is any stigma. State of Madras v. Venkataraman4, relied on by the petitioner is of no assistance to him. 4. The files which are produced before the Court will themselves clearly show that there were enough materials to conclude that there was every justification for recommending compulsory retirement of the petitioner. It may also be noted that the authority who passed the order of admonition is totally different from the Review Committee which recommended the compulsory retirement of the petitioner to the Government. Then again the petitioner preferred his representations to the High Level Standing Committee. That Committee considered the grievances of the petitioner independently and held that there was no case for interference. 5. I have already extracted the order forming the subject-matter of the writ petition. It does not cast any stigma whatever on the petitioner. The petitioner has completed 25 years of qualifying service and his case was taken up in accordance with the policy of the Review Committee. The Review Committee consisting of high ranking officers of the Government recommended the case of the petitioner for compulsory retirement on enough materials which cannot be disclosed having regard to their confidential nature. I am satisfied on a perusal of the files that there were enough materials before the Review Committee which met on 5th September, 1975 to recommend compulsory retirement of the petitioner. This recommendation was considered by the Government who by the impugned order did retire the petitioner. Thereafter he preferred certain representations to the High Level Standing Committee. It may also be noted that a gist of the representation was given forming a’ review before the Committee and the Review Committee found no ground to interfere. Under these circumstances, it is not for this Court to delve into the records and find out whether on the materials given the order of compulsory retirement is justified. It may also be noted that a gist of the representation was given forming a’ review before the Committee and the Review Committee found no ground to interfere. Under these circumstances, it is not for this Court to delve into the records and find out whether on the materials given the order of compulsory retirement is justified. In fact the judgment of the Division Bench extracted above clearly requires me to consider only the following two points: (1) whether a stigma stems from out of the order; and (2) whether the records disclose materials to form an opinion that in public interest the officer should be retired. As seen above, I have examined the matter in the light of these two points and found that the order has not cast a stigma and there are enough materials to warrant the compulsory retirement. Merely because the order of admonition passed by the Board of Revenue on 2nd September, 1975 and the impugned order dated 19th September, 1975 came to be served on the petitioner on 20th September, 1975, it cannot and does not mean that any stigma is cast on the petitioner. It may be noted that the authority who passed the order of admonition is the Board of Revenue while the compulsory retirement was recommended by the Review Committee consisting of Secretaries to the Government and the Secretary of the Board of Revenue who had nothing to do with the order of admonition. It may be stated that the case of the petitioner was not considered in isolation whereas the case of all persons who fell within the ambit of G.O. Ms. No. 546 dated 1st March, 1972 and G.O. Ms. No. 761 dated 19th March, 1973 were taken up ‘for consideration in that those who had completed either 50 years of age or 25 years of qualifying service and whose basic pay was less than Rs. 1,100 were considered. State of Madras v. Venkataraman 1 , was a case in which it was held that whether an order of compulsory retirement is by way of punishment or not, cannot be decided merely by reference to the order itself, but the circumstances in which it was made should be taken into account, which besides contributing to the decision may be decisive by themselves. With great respect I should say that this is no longer good law as has been laid down by the Supreme Court in a series of recent decisions all of which have been referred to in the judgment of the Division Bench. The stigma must stem from the order itself and not be drawn out by a speculative process by reading into the order any innuendo from other circumstances or possibilities or suspicions. 6. I do not find any substance in the argument of the learned counsel for the petitioner that the adverse remarks should be communicated since open-file-system is maintained. This is not a case of disciplinary action and it must be remembered that in a case of compulsory retirement, the employer no longer wants the employee. Merely because a person is a Government servant, it does not mean that the ordinary relationship of master and servant is in any way extinguished. The employee entered the service on the specific condition that either on his attaining the age of 50 years or 25 years of qualifying’ service, it will be open to the employer to consider the case of the employee for compulsory retirement. Where therefore on materials, which materials are found in the file, the employer decides to compulsorily retire, the petitioner cannot be heard to say that the adverse remarks should be communicated and he should be given an opportunity to reform himself. In other words, the employer is no longer interested in keeping the petitioner in service. This freedom certainly the employer — in this case namely, the Government — has. 7. In the result, I conclude that there are absolutely no merits in the writ petition and it is hereby dismissed. There will be no order as to costs.