Gourpada Banerji v. State of West Bengal — 1978 DIGILAW 347 (CAL)

Order This Rule is directed against an order of compulsory retirement of the petitioner dated 25th of October, 1976 passed by the Inspector General of Police under Rule 75(aa) or the West Bengal Service Rules, Part-I. 2. Petitioner joined as Sub-Inspector of Police in the month of January, 1944. Thereafter, he was promoted to the post of Inspector or Police in May, 1959 and subsequently, confirmed in December, 1964. For an incident which took place in February, 1973, when some Naxalites broke open the door or a Gun Dealer's shop at Raigunj and looted arms .and ammunitions the petitioner was suspended on the ground that he failed to exercise supervision over his subordinates. Against the said order of suspension, he moved this Court on 11th of March, 1974 and obtained •a Rule (1610 (W) of 1974) and also an interim order. The said Rule is now pending in this Court. Pursuant to the interim order, the petitioner was released from suspension and posted as Senior Adjutant, Home Guards, Balurghat, West Dinajpur. Towards the latter part of 1973, the petitioner was served with an adverse entry in the Annual Confidential Report for the year coding 1972 wherein the following remarks were recorded :- "An inefficient Circle Inspector. He could not get work from the Officers working under him. Position of pending cases in his Circle is simply alarming. Does lot of touring but it seems without any effect. He should work hard to go further up in future." 3. Towards the middle of 1974, he was served with another adverse entry in his Annual Confidential Report for the year ending 31st March, 1973 wherein the following remarks were recorded :- "Worked as C.I. Raigunj where his performance was most unsatisfactory. Had no attachment for the post, but was always keen to get out of the Circle and posted in Howrah District. His control over his subordinates was ineffective. He was found very inactive and lacking initiative. His supervision over crime control and law and order n1aintenance was very bad. During arms looting which took place in Raigunj town area in February, 1973, he was found utterly irresponsible. He came to know about the incident much later on. This particular case showed very poor supervision on his part." 4. He was found very inactive and lacking initiative. His supervision over crime control and law and order n1aintenance was very bad. During arms looting which took place in Raigunj town area in February, 1973, he was found utterly irresponsible. He came to know about the incident much later on. This particular case showed very poor supervision on his part." 4. It is alleged by the petitioner that those adverse remarks were made mala fide and vindictively as a counter blast to the petitioner's writ application in this Court. In the meantime, the petitioner was superseded by many of his' juniors. He made representation to the Inspector General of Police and also to the Secretary, Home (Police) Department, requested them to consider his case for promotion and having found that the said respondents did not consider the petitioner's representation, he made another application under Art. 226 of the Constitution on or about 28th February, 1975 against his illegal super-session by his juniors. That Rule being Civil Rule No. 8687(W) of 1975 is pending. An interim order was also granted to the effect that all promotions made would be subject to the result of the Rule. Sometime in November, 1973, a charge-sheet was issued to the petitioner. A departmental enquiry on the basis of the said charge-sheet is now pending and same has been stayed by this Court. On 9th July, 1976 adverse remarks for the year 1975-76 was communicated to the petitioner. The said remarks run as follows :- "He did not give a good account of himself. Did not take any initiative in training of fresh recruits and for organizing any refresher course." Against the said adverse remarks, the petitioner duly submitted representation to the I.G. of Police. On or about 30th November, 1976 the petitioner received the impugned order whereby he was to be retired from service under Rule 75(aa) of the West Bengal Service Rules, Part I. Along with the said order a cheque for an amount equivalent to 3 months' pay and allowances was also given to the petitioner in lieu of notice. The said order was given effect to on and from 1st November 1976. It is alleged in the petition that the impugned order of compulsory retirement is illegal and mala fide inasmuch as the same was not passed in public interest and there was no bona fide grounds and/or reasons behind the said order. The said order was given effect to on and from 1st November 1976. It is alleged in the petition that the impugned order of compulsory retirement is illegal and mala fide inasmuch as the same was not passed in public interest and there was no bona fide grounds and/or reasons behind the said order. It is stated in the petition that the order of compulsory retirement during the pendency of the departmental proceeding on the face of it, indicated that the same was passed by way of punishment which the respondents decided to impose upon the petitioner on the basis of the departmental proceeding on the alleged charges. The petitioner being aggrieved by the impugned order 5. An affidavit-in-opposition has been filed on behalf of the respondents 1-6 and affirmed by Nipendra Chandra Paul, the Deputy Inspector General of Police, Headq uarters, West Bengal wherein it is stated that the case of the petitioner was reviewed after his attainment of 55 years in accordance with the Memorandum dated 15.5.73 and he was found not suitable to continue upto the age of 58 years for better efficiency in the public interest. . The said order of compulsory retirement has no nexus with the departmental proceedings and neither the said order was passed by way of any punishment. 6. The records of the review committee was produced before me wherein it is stated "As regards Serial No. 10 Sri Gourpada Banerjee & ors................ records are poor and their performance in the posts held by them during the last 5 years had been poor. The Review Committee is of the opinion that they are unsuitable for continuance in service and recommends that they should be retired compulsorily after they have completed the age of 55 years". 7. On the basis of the said recommendation, the appointing authority, the Inspector General of Police, did not form any independent opinion, but he simply accepted the recommendation of the committee for the premature retirement of the petitioner. 8. Mr. Banerji, appearing on behalf of the petitioner urged only one point, that the appointing authority did not form any independent opinion on the basis of the materials germane to the issue that the petitioner should be retired compulsorily in the public interest. 9. Me. 8. Mr. Banerji, appearing on behalf of the petitioner urged only one point, that the appointing authority did not form any independent opinion on the basis of the materials germane to the issue that the petitioner should be retired compulsorily in the public interest. 9. Me. Gooptu, appearing on behalf of the respondents contended that the formation of the opinion is not required to be expressed in a particular form in as much as it is not enjoined by the instructions or the guidelines that the opinion should be supported by any reasons or grounds. According to him, absence of grounds or reference to any fact or material does not necessarily mean that no bona fide opinion was formed by the appointing authority. In this connection, he referred to the extract from the West Bengal Secretariat Manual. Paragraph 29 of the said Manual provides that, when an officer agrees with the proceeding note or recommendation he will append his signature without noting. In such circumstances the note will be regarded as if it were recorded by him subject to any marginal remarks made by him to comment on or emphasise any special point. 10. Reliance was placed by Mr. Gooptu on the decision of this Court in S.K. Mitra v. Commissioner of Presidency Division, 80 CWN 697, wherein the compulsory retirement was justified even when no independent opinion was formed by the appointing authority who only accepted the recommendation of the review committee. 11. In A.C. Bose v. Union of India, 1974 CLJ 8 : 1974 CHN 111(N) the recommendation of the review committee has been set out in paragraph 10 of the report. The committee recommended as follows :-(1) an overall assessment of the confidential records of the following officers does not justify their continuance of service and, therefore, they should be retired in public interest". The Division Bench of this Court observed that the relevant minutes of the Review Committee's meeting of the 26th July, 1972 ; set out above, did not disclose the ground or material germane to the issue of compulsory retirement on the basis of which the appropriate authority formed the opinion that it was in public interest to make the order for compulsory retirement of the appellant. 12. In 1973 Memorandum 4 criteria have been laid down. Petitioner's case, however, does not fall in any of the criteria laid down in 1973 Memonmdum. 12. In 1973 Memorandum 4 criteria have been laid down. Petitioner's case, however, does not fall in any of the criteria laid down in 1973 Memonmdum. Sub-clause (iii) of 1973 Memorandum lays down that if, on the result of a review it is considered that an officer who had done in the lower grade is not adequate to the responsibility of the post held by him or will not be able to perform efficiently the duties of the post he is likely to hold for the next three years, it would be desirable to consider him for premature retirement under this rule. 13. The review committee did not consider the petitioner's case according to the above criteria. It is true that absence of any grounds or reasons does not invalidate the order of compulsory retirement. But at the same time either in the recommendation of the review committee or in the requisite opinion formed by the appointing authority there must be an indication that such recommendation or the opinion was formed on the basis of some materials germane to the issue that the government servant shall retire compulsorily in the public interest. 14. In S.K. Mitra's case, 80 CWN 697, the review committee recorded its opinion as follows :- "As regards point no. (ii) it appears that there are successive reports that the integrity of the officer is doubtful. The officer would have been proceeded, against departmentally had there been positive and concrete evidence against his intergrity. On the other hand, there are definite remarks that this officer works as a tout of the licensees and that his exit from the department will increase realisation of taxes. This officer works in a revenue earning department and it seems that such an officer may not be kept in service at the cost of Government revenue when be can be retired under the service rules." This Court observed that in view of the majority opinion of the Review Committee which was accepted by the respondent No.1, there could not be any doubt that there were existence of grounds or materials germane to the issue at the time the impugned order was passed by the respondent no. 1. There was, therefore, no merit in the contention of the petitioner that the respondent no. 1. There was, therefore, no merit in the contention of the petitioner that the respondent no. 1 did not form any independent opinion on the question of retirement of the petitioner in the public interest, but he acted as per the recommendation of the Review Committee. 15. In my view, the decision referred to by Mr. Gooptu has got no application to the facts and circumstance of the present case. 16. Mr. Gooptu took pains to place various Modern English dictionaries for the purpose of construing the meaning of the word opinion". It is urged by Mr. Gooptu that the opinion might be expressed by conduct. According to him in the instant case, the conduct of the I.G. shows that he accepted the recommendation of the Review Committee. Accordingly, it was not necessary for him to form his independent, Opinion that the petitioner should retire in public interest. 17. The word "opinion" means one's view on a particular subject. It reveals a rational nexus between the fact considered and conclusion reached. It does not always lead to construction that process of forming opinion is altogether subjective and it is beyond even to a limited scrutiny by the Court that such an opinion was not formed on relevant facts or the opinion so formed has no rational nexus to the object. The appointing authority is required to form an opinion from certain facts and circumstance from which a reasonable man can come to a conclusion that the government servant should be retired in public interest. Opinion expressed by conduct does not enjoin(?) the requirements of the Rules. The word "public interest" has a well defined meaning. The whole object of retiring a government servant pre maturely is that, public money should not be wasted in retiring those officers who outlived their utility to the service, whose integrities are doubtful, who are physically incapable of doing any work, who have lost efficiency and who are not material alert. These are some of the materials which are germane to the issue that a public servant should retire compulsorily, in public interest. Each case, however, is to be considered on its own fact. There might be some special or exception circumstances or reasons for forming an opinion that a public servant should retire compulsorily. 13. These are some of the materials which are germane to the issue that a public servant should retire compulsorily, in public interest. Each case, however, is to be considered on its own fact. There might be some special or exception circumstances or reasons for forming an opinion that a public servant should retire compulsorily. 13. Where it appears from the minutes of the Review Committee that it considered about the physical fitness, mental alertness, integrity and efficiency of a particular officer referring to some of the adverse remarks recorded in the confidential file of that officer which are relevant to forth an opinion that the said officer shall retire in the public interest, in that case simple acceptance of the recommendation would be sufficient compliance with the rules. No independent opinion is required to be formed by the appointing authority inasmuch as the recommendation itself is clear, explicit and germane to the issue. 19. In my view, when an elaborate procedure has been laid down for retiring a Government servant under Rule 75(aa), in that case procedure laid down in paragraph 29 of the Bengal Secretariat Manual by appending one's signature without noting anything, would not be in compliance with the requirements of the guidelines. 20. In Krishna Aumar v. S.P. Saksena & ors., AIR 1973 SC 1065 , the Supreme Court observed as follows:- "The committee decided to review Appellants' case from the point of view of physical fitness, integrity and efficiency. After giving the various details the committee expressed the following opinion in para 6 of its report. Taking into account all the other facts the committee was of opinion that it would be neither in the public interest not in the interest of its own personal longivity to retain Shre Krishna Kumar in service beyond the age of 55 years. It is clear from the affidavit of the Comptroller and Auditor General that he studied the recommendation of the committee and also considered the physical capacity, work and conduct of the appellant as revealed from his official records in order to form an• opinion whether it was in public interest to retire the appellant after he had attained the age of 55 years. It was only after consideration of the entire material that he formed the opinion that it was in public interest to retire him. It was only after consideration of the entire material that he formed the opinion that it was in public interest to retire him. We are unable to see how in the presence of this material any argument can be raised that the appropriate authority did not form any opinion that the retirement of the appellant would be in public interest". 21. In the instant case the materials placed before me do not indicate that the review committee did consider any relevant material and on the basis of such material recommended premature retirement of the petitioner. It is well settled that the court is entitled to examine the grounds or materials germane to the issue of compulsory retirement. In the absence of materials there could not be any formation of opinion by the appointing authority that the petitioner should retire under Rule 75(aa) of the West Bengal Service Rules, Part-I. Accordingly, the impugned order is quashed. This Rule is made absolute. There will be no order for costs. Let the operation of the order be stayed for four weeks, as prayed for. Rule made absolute.