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2005 DIGILAW 688 (GAU)

Nukenla Ao v. State of Nagaland

2005-09-16

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. By this writ petition the Petitioner has assailed the order by which she has been granted compulsory retirement from service w.e.f. 1.4.2005 before attaining the age of superannuation. The impugned order dated 28.2.2005 reads as follows: The Nagaland State Cooperative Pam Ltd. Head Office, Dimapur Ref: No. NSCB/HO/ADMN/PRWC-101 ORDER The PRWC in its meeting held on 13.2.2004 has examined the recommendation of Branch Manager, Medziphema branch to grant CRS to Smti. Nukenla AO, Acctt, Medziphema branch on the ground of inefficiency and non-performance. The committee has also examined the earlier complaint made by the other branch managers against her unsatisfactory performance, show cause notices-warnings served to her. Keeping in view of the above prima facie evidences and records the PRWC has found her case deem fit for grant of CRS and granted CRS to Smti Nukenla AO, Acctt., From the Bank service after receiving the R.C.S. approval of the C.R.S. Whereas the Bank received the RCS approval of CRS on 2.12.2004 and now the Management in the interest of the Bank hereby grant compulsory retirement to Smti. Nukenla A, Acctt., From the Bank Service with effect from 1.4.2005. All benefits under CRS will be adjusted with her liability and the balance if any will be released to her. Sd/- S. Sale Managing Director 2. The Petitioner is presently working as Accountant under the Respondent Bank. She had entered into the service of the Bank in April, 1975 and was initially appointed as LDA cum Typist. She was promoted as Sub-Accountant in March, 1981. 3. According to the Petitioner in her 30 years of service in the Bank she had been discharging her duties with utmost sincerity to the best satisfaction of her senior officers barring an exception in 2001 in which year by Annexure-C letter dated 17.5.2001 she was warned in respect of committing irregularity towards liquidation of outstanding loan. 4. The Petitioner has assailed the order of compulsory retirement on the ground that before issuing the order she was not put to any kind of notice and that no enquiry was conducted. It is her case that if there was anything adverse against her, same ought to have been brought to her notice before asking her to go on compulsory retirement. 5. The Respondents have filed their counter affidavit and have made the following statements in paragraphs 4, 7 and 8. 4. It is her case that if there was anything adverse against her, same ought to have been brought to her notice before asking her to go on compulsory retirement. 5. The Respondents have filed their counter affidavit and have made the following statements in paragraphs 4, 7 and 8. 4. That with regard to the statements made in paragraph 4 of the affidavit-in-opposition, this deponent beg to state that the Petitioner is aggrieved by impugned order No. NSCE/HO/ADMN/PRWC-10/9914 (2812) dated Nil Annexure-D to the writ petition by which the Petitioner was made to be granted Compulsory Retirement from Bank service w.e.f. 1.4.05. The scheme for Compulsory Retirement provides that the criteria laid down by the Bank for Compulsory Retirement Scheme (hereinafter referred to as CRS) is that the Board shall examine the service records of the incumbent for the last 5 (five) years before approving/disapproving the proposal. Thereafter, the Bank shall serve a notice of 1 (one) month on the employee informing him/her about his/her retirement. Therefore, the subject matter in this writ petition pertains to the issue of CRS granted by the Bank to the Petitioner. The Respondents are trying to mix up the issue with other irrelevant factor which is not a subject matter in this writ petition and as such the question of misleading the Hon'ble Court does not arise. On the contrary, the Respondents are trying to mislead this Hon'ble Court by brining irrelevant issues. 7. That with regard to the statement made in paragraph 9 of the affidavit-in-opposition this deponent beg to state that it transpires from the statements made by the Respondents that the entire process for compulsory retirement has been done behind the back of the Petitioner without properly following provisions laid down by the Bank for CRS. The decision of the Respondents is also influenced by ulterior and oblige motive and has been based on extraneous and irrelevant consideration. Therefore, the entire actions are in violation of the Rule/Orders and has been conducted in violation of the principles of Natural Justice. 8. That with regard to the statements made in paragraphs 10 and 11 of he affidavit-in-opposition, while reiterating the statements made in paragraph-4 of this affidavit it is stated that besides the Service Rule the NSCB employees CRS Scheme lays down the criteria for consideration for the said scheme. 8. That with regard to the statements made in paragraphs 10 and 11 of he affidavit-in-opposition, while reiterating the statements made in paragraph-4 of this affidavit it is stated that besides the Service Rule the NSCB employees CRS Scheme lays down the criteria for consideration for the said scheme. Paragraph 1 of the said scheme lays down that the Board shall examine the Service Record of the incumbents for the last 5 (five) years before approving or disapproving the proposal. So far as the Petitioner is concern her service records for the last 5 (five) years is to be taken into consideration as per the scheme before approving or disapproving the proposal for CRS. It is clearly admitted by the Respondents that the decisions to grant compulsory retirement to the Petitioner was taken after considering the entire service record of the Petitioner and not the service record of 5 (five) years as laid down in the scheme. From the documents relied and annexed by the Respondents also clearly discloses that the Respondents have not adhered to the provision laid down under the scheme and on the basis of irrelevant and non-existent ground the approval was made for CRS. 6. The stand of the Respondents is that as per the scheme formulated by them for compulsory retirement of the employees of the bank, the case of the Petitioner was considered by the competent authority and recommendation made, the impugned order has been issued compulsorily retiring the Petitioner from service. According to them, the impugned order of compulsory retirement not being as a measure of penalty, there was no question of issuing any notice and/or conducting an enquiry. 7. In the rejoinder affidavit filed by the Petitioner, placing reliance on the scheme for compulsory retirement, the Petitioner has emphasized in reference to the stand of the Respondents in paragraph-10 of their counter affidavit that the Respondents instead of taking into account the ACRs of the Petitioner for the last five years had taken into account the entire service records of the Petitioner and such a course of action was contrary to the scheme of compulsory retirement. 8. I have heard Mr. C.T. Jamir, learned Counsel for the Petitioner and Mr. K. Meruno, learned Sr. Counsel assisted by Mr. T.B. Jamir, learned Advocate appearing for the Respondents. 9. Mr. 8. I have heard Mr. C.T. Jamir, learned Counsel for the Petitioner and Mr. K. Meruno, learned Sr. Counsel assisted by Mr. T.B. Jamir, learned Advocate appearing for the Respondents. 9. Mr. Jamir, learned Counsel for the Petitioner strenuously argued that on the face of the impugned order, the compulsory retirement imposed on the Petitioner is by way of penalty and thus, not sustainable in law. He submitted that since as per own admission of the Respondents as reflected in paragraph-10 of the counter affidavit, the entire service records of the Petitioner were taken into consideration towards imposition of compulsory retirement contrary to the requirement of taking into account the ACRs of the last five years, the decision arrived at was erroneous. He submitted that the order for compulsory retirement is the outcome of the irrelevant consideration and considerations of matters extraneous to the issue. 10. Countering the above arguments, Mr. Meruno, learned Sr. Counsel appearing for the Respondents justified the impugned action and the order. He submitted that the competent authority duly considered the service records of the Petitioner including the ACRs for the last five years and upon evaluation of such records arrived at a decision and finding that the Petitioner need not be retained in service any longer. He submitted that such a decision arrived at by the competent authority based on the materials on record being not founded on arbitrary and/or malafide exercise of power, the writ court will be reluctant to interfere with the impugned order. During the course of hearing, he produced the minutes of the proceeding of Promotion Recruitment and Welfare Committee (PRWC) held on 18.2.04 which has the authority to process the proposal for compulsory retirement. He also placed reliance on two decisions of the Apex Court as reported in C.D. Ailawadi v. Union of India and other (1990) 2 SCC 328 and I.K. Mishra v. Union of India and other, (1997) 6 SCC 228 . 11. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and also to the materials available on record. The order of compulsory retirement has not been issued pursuant to any department proceeding, but the same has been issued on the basis of the scheme for compulsory retirement as has been formulated by the Respondents bank a copy of which has been annexed to the counter affidavit. The order of compulsory retirement has not been issued pursuant to any department proceeding, but the same has been issued on the basis of the scheme for compulsory retirement as has been formulated by the Respondents bank a copy of which has been annexed to the counter affidavit. As per the said scheme the management of the bank has the right to compulsorily retire any employee who has completed 10 years of service or has attained 40 years of age. The object of the scheme is to shed unnecessary flab and down size the men power to achieve maximum objectivity. Under the scheme, in addition to terminal benefits such as GPF and Gratuity, additional benefit as indicated in the scheme shall also be paid to the retiree. The basic thrust for compulsorily retiring the employees is as follows: The appointing authority after obtaining due appraisal and consideration of the PRWC, put up such proposals to the Board for approval. The Board shall examine the service records of the incumbent for the last 5 (five) years, before approving or disapproving the proposal. The Bank shall serve a notice of 1 (one) month on the employee informing him/her about his/her retirement. On expiry of the notice, the retirement shall be deemed to be effective from the 1st day of the following month. In lieu of the notice or if it is considered expedient not to serve such notice, a months salary in lieu of the notice shall be paid to the employee. 12. As against the claim of the Petitioner that except a letter of warning issued to her by Annexure-C communication dated 17.5.01 her 30 years of service career was otherwise unblemished, the Respondents in their counter affidavit have highlighted as to how the Petitioner's service was unsatisfactory. They have annexed the documents as Annexures-1 to 11 to justify their stand that the service of the Petitioner was not at all satisfactory. In fact, by the aforesaid letters, the Petitioner was asked to maintain discipline and punctuality; issued warning on her failure to improve upon her performance and warning to place the matter before the PRWC etc. was conveyed. Such displeasure expressed against the Petitioner range from 1979 to 2002. Her poor performance was also indicated in the communications dated 28.04.1999, 07.05.1999, 24.08.1999, 9.4.2001, 17.5.2001 and 30.4.2002 which are of recent past. 13. was conveyed. Such displeasure expressed against the Petitioner range from 1979 to 2002. Her poor performance was also indicated in the communications dated 28.04.1999, 07.05.1999, 24.08.1999, 9.4.2001, 17.5.2001 and 30.4.2002 which are of recent past. 13. The order of compulsory retirement has already been quoted above. To quell any doubt, learned Counsel for the Respondents was requested to produce the minutes of the PRWC and the same was produced during the course of hearing. I have perused the minutes of the PRWC which clearly indicate consideration of the service records and ACRs of the Petitioner for the last five years. The PRWC while considering the proposal for grant of compulsory retirement of the Petitioner dully took note of the ACRs for the last five years and also noted the detail adverse reports and inefficiency/non-performance in her service. It also took into account certain warnings and notices issued to her pointing various irregularities and nonperformance on her part. Thus, the argument of not adhering to the requirement of taking into account the ACRs for the last five years, is contrary to the records. 14. The PRWC took into account all the relevant facts including the ACRs for the last five years and thereafter recommended the case of the Petitioner for compulsory retirement. Thereafter, the Management, i.e. the Board of the bank took a conscious decision to approve the compulsory retirement of the Petitioner and impugned order of compulsory retirement was issued with due approval of the Registrar of Cooperative Societies. Thus all necessary formalities were carried out towards retiring the Petitioner compulsorily from service before attaining the age of superannuation. 15. As regards the plea of the Petitioner that before imposition of compulsory retirement, she was rot put to any kind of notice and that no enquiry was held, the same is not at all acceptable in case of the kind of compulsory retirement with which we are concerned in this proceeding. The compulsory retirement imposed on the Petitioner is not by way of penalty, but the same has been imposed on her on the basis of the scheme for compulsory retirement. 16. The compulsory retirement imposed on the Petitioner is not by way of penalty, but the same has been imposed on her on the basis of the scheme for compulsory retirement. 16. In the case of C.D. Ailawadi (supra), the Apex Court while pointing out that compulsory retirement under FR 56(j) is not a punishment, also held that the Court has no jurisdiction to quash the order of compulsory retirement unless the aggrieved civil servant can successively challenge the order of compulsory retirement on any of the following grounds: (i) That the requisite opinion has not been formed. (ii) That it is based on collateral grounds. (iii) That it is an arbitrary decision. 17. In the instant case, none of the aforesaid ingredients has neither been pleaded or established. 18. In the case of I.K. Mishra (supra), the Apex Court dealing with the same situation upheld the order of compulsory retirement. As in the instant case, in the said case also entire service records including the entries of the Appellant were placed before the Review Committee, and the Review Committee after considering the reports mainly confidential report/character roll, recommended the appointing authority for compulsory retirement of the Appellant from service. The Apex Court found that the adverse materials placed before the Review Committee and the appointing authority justified compulsory retirement of the Appellant. The Apex Court held that the power of compulsory retirement is absolute provided that the competent authority forms a bonafide opinion. It was also held that adverse remarks and penalty imposed on a Government employee during recent and past period can be taken into consideration while imposing compulsory retirement on an employee. 19. The Apex Court in the case of Pavanedra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Science as reported in AIR 2002 SC 23 , held that the language used in the order of termination, "work and conduct has not been found to be satisfactory" falls within the class of non-stigmatic orders of termination. In that case the services of the Appellant was terminated after due warning by way of extending the period of probation on ground of "work and conduct" being not satisfactory. In that case the services of the Appellant was terminated after due warning by way of extending the period of probation on ground of "work and conduct" being not satisfactory. Referring to various decisions of the Apex Court and tracing back the history of such cases in which the services of a probationer is terminated, the Apex Court held that an employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. The Apex Court observed that whenever a probationer challenges his termination, the Court's first task will be to apply the test of stigma or the ''form" test and if the order survives this examination, the "substance" of the termination has to be found out. The Apex Court further observed that generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for job, whether by reason of misconduct or ineptitude whatever the language used in the termination order may be. When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Equally an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. 20. I may also gainfully refer to the decision of the Apex Court as reported in AIR 2001 SC 625 (Krishna Devaraya Education Trust v. A. Balakrishna). In that case also the services of the probationer was terminated on the basis of the opinion formed by the committee set up for evaluation of the general performance of the probationer. The committee was of the opinion that the probationer's job proficiency was not up to the mark. Making the same explicit in the order of termination, the services of the probationer was dismissed with. The Apex Court held that there can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the appointee has to be seen. Making the same explicit in the order of termination, the services of the probationer was dismissed with. The Apex Court held that there can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. The Apex Court pointed out that if the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged. 21. The above principles of law are equally applicable to the case of compulsory retirement. The scheme for compulsory retirement on the basis of which the Petitioner has been made to go on compulsory retirement itself indicates the object of the scheme which is to achieve or shed unnecessary flab and to down size the men power to achieve maximum objectivity. The Petitioner has been imposed with compulsory retirement on the specific ground of unsatisfactory performance. The Petitioner was dully warned from time to time pointing out the deficiency and to improve herself. If she failed to improve her performance, the Respondents had the right to ask her to go on compulsory retirement. Such order of compulsory retirement cannot be said to be stigmatic and as a measure of penalty. 22. For the foregoing reasons and discussions, I am of the considered opinion that no interference is called for the impugned order of compulsory retirement. Consequently, the writ petition stands dismissed. The interim order passed on 31.3.2005 stands vacated. The Petitioner shall be conferred with all the benefits to which she is otherwise entitled under the scheme of compulsory retirement. Petition dismissed.