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2016 DIGILAW 295 (ORI)

Narayan Prasad Panda v. State of Orissa

2016-04-18

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. 1. Order of compulsory retirement passed against the petitioner is under challenge. 2. Brief facts of the case of the petitioner is that he was appointed as Conductor in the year 1968 and after rendering 31 years of service he has been served with an office order dated 30.01.1999 passed in exercise of power under Regulation 118 of the Orissa State Road Transport Corporation Employees (Classification, Recruitment and Conditions of Service) Regulation, 1978 (in short the “Regulation 1978”) retiring him from service in the public interest w.e.f. 31.01.1999 at the age of 50 years and accordingly the petitioner was relieved from his duty. 3. Ground taken by the petitioner in assailing the order of retirement is that the decision taken by the Review Committee is arbitrary, illegal and without any justification. Learned Sr. Counsel appearing for the petitioner has submitted that the Chairman-cum-Managing Director of the Corporation has presided over the meeting of the Review Committee and the Committee constituted for accepting the recommendation of the review committee has also been presided over by the Chairman-cum-Managing Director of the Corporation and as such the decision taken by the Chairman-cum-Managing Director of the Corporation regarding premature retirement of the petitioner cannot be said to be bona fide. 4. Further ground is that when the order of compulsory retirement has been passed on the ground of public interest, State who has disclosed the material regarding their subjective satisfaction for reaching to this conclusion but order does not reflect this. 5. Opposite party-Corporation has appeared and filed counter affidavit inter-alia stated that the competent authority of the Corporation has decided to observe the performance of one or the other employees working under Corporation and for that a Review Committee was constituted and the Review Committee after considering the service record along with other 474 employees of the Corporation has found that the petitioner needs to be separated from service in exercise of power conferred under Regulation 118 of the Regulation 1978 as because of review of the service record of the petitioner along with others it was not satisfactory hence the Review Committee had recommended for the compulsory retirement. Further, it has been stated that there is no question of any mala-fide as because the petitioner has not been single doubt regarding assessment of the service career rather the service career of other employees working under the Corporation has also been assessed by the Review Committee and whose service records has not found to be satisfactory, the Review Committee has recommended for their separation under compulsory retirement on public interest as such there is no mala-fide and not justified decision of the authority. 6. Heard learned counsel for the parties and perused the documents on record. 7. Opposite party-Corporation has framed a Rule known as “Orissa State Road Transport Corporation Employees Service Regulation 1978” which contains a provision under Regulation 118 of the Regulation 1978 and subsequently the amended Regulation, 1990 has come containing amended provision which is being reproduced herein below:- “In the said regulations, for regulation 118, the following regulation shall be substituted, namely:- “118(1) The age of compulsory retirement of all employees other than Class-IV and Artisan employees is the date on which he attains the age of fifty eight years: Provided that any such employee may retire from service at any time after completing thirty years of service or on attaining the age of fifty years by giving a notice in writing to the appointing authority of the Corporation, at least three months before the date on which he wishes to retire or by deposing in advance three months pay and allowances in lieu of such notice. The appointing authority may also require any such employee of the Corporation to retire in public interest at any time after he has completed thirty years of service or attained the age of fifty years by giving a notice in writing to the employee at least three months before the date on which he is required to retire or by giving three months pay and allowances in lieu of such notice. (2) The age of compulsory retirement of Class-IV and Artisan employee is the date on which he attains the age of sixty years: Provided that any such employee may retire from service at any time after completing thirty years of service or on attaining the age of fifty-five years by giving a notice in writing to the appointing authority of the Corporation at least one month before the date on which he wishes to retire by depositing one month’s pay and allowances in lieu of such notice. The appointing authority may also require any such employee of the Corporation to retire in public interest at any time after he has completed thirty years of service or attained the age of fifty-five years by giving a notice in writing to the employee at least one month before the date on which he is required to retire or by giving one month’s pay and allowances in lieu of such notice.” It is clear from the above provision pertaining to compulsory retirement gives opposite party-Corporation absolute right to retire any employee after he attains the age of 55 years or on completion of 30 years by giving a notice in writing to the employees at least one month before the date on which he is required to retire or by giving one month’s pay and allowances in lieu of such notice. 8. A Review Committee was constituted to look into the conduct and continuation of the employees working in the Corporation who had attained the age of 50 years or had completed 30 years of service. Altogether the case of 474 employees has been placed before the Committee in which the name of the petitioner also appeared. The Review Committee on perusal of the record of the petitioner recommended his compulsory retirement and accordingly the order for compulsory retirement has been passed on 30.01.1999 which has been challenged in this writ petition on the ground of mala-fide decision being unreasonable and arbitrary exercise of power. 9. From perusal of the material available on record, it is evident that the petitioner has been punished or suspended altogether on 06 occasions as would be evident from Annexure-A annexed to the counter affidavit. After taking into consideration the entire service record, the Review Committee has recommended for compulsory retirement in public interest. 10. 9. From perusal of the material available on record, it is evident that the petitioner has been punished or suspended altogether on 06 occasions as would be evident from Annexure-A annexed to the counter affidavit. After taking into consideration the entire service record, the Review Committee has recommended for compulsory retirement in public interest. 10. Proposition is well laid down in the matter of power of the employer in passing the order of compulsory retirement in order to assess the capability and efficiency of one or the other employees before taking any decision the entire service career is required to be seen as to whether the continuation of such employee in service is in public interest or not, or as to whether such employee is fit to be retired compulsorily in public interest in view of the power conferred in this regard. 11. In this regard, reference may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Pyare Mohan Lal vs. State of Jharkhand and others reported in (2010) 10 SCC 693 wherein their lordships has been pleased to hold that before taking the decision for compulsory retirement, the entire service record needs to be taken into consideration. In another judgment also Hon’ble Supreme Court in the case of Rajasthan State Road Transport Corporation and others vs. Babu Lal Jangir reported in (2013) 10 SCC 551 , it has been held that overall performance on the basis of entire service record needs to be seen to come to the conclusion as to whether the employee concerned has become dead wood and it is in public interest to retire him compulsorily. The relevant paragraph is being quoted herein below for ready reference:- “Para-24. Having taken note of the correct principles which need to be applied, we can safely conclude that the order of the High Court based solely on the judgment in Brij Mohan Singh Chopra reported in (1987) 2 SCC 188 was not correct. The High Court could not have set aside the order merely on the ground that service record pertaining to the period 1978-1990 being old and stale could not be taken into consideration at all. As per the law laid down in the aforesaid judgment, it is clear that entire service record is relevant for deciding as to whether the government needs to be eased out prematurely. As per the law laid down in the aforesaid judgment, it is clear that entire service record is relevant for deciding as to whether the government needs to be eased out prematurely. Of course, at the same time subsequent record is also relevant, and immediate past record, preceding the date on which decision is to be taken would be of more value, qualitatively. What is to be examined is the “overall performance” on the basis of “entire service record” to come to the conclusion as to whether the employee concerned has become a deadwood and it is in public interest to retire him compulsorily. The authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee “rendered himself a liability to the institution”, there is no occasion for the court to interfere in the exercise of its limited power of judicial review. Para-27. It hardly needs to be emphasised that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such case. Interference is permissible only on the ground of non-application of mind, mala-fide, perverse or arbitrary or if there is non-compliance with statutory duty by the statutory authority. Power to retire compulsorily the government servant in terms of service rule is absolute, provided that authority concerned forms a bona fide opinion that compulsory retirement is in public interest.” In another judgment rendered by Hon’ble Supreme Court in the case of Punjab State power Corporation Ltd. vs. Kari Kishan Verma reported in AIR 2015 SC 2426 their Lordships after taking into consideration all the previous pronouncement of the Hon’ble Supreme Court has been pleased to hold that the entire record needs to be scrutinised by the employer to adjudge the justification of continuance of employee after reaching a particular age as contemplated in Regulations. 12. 12. In the present case, the petitioner who was working as Conductor was charge-sheeted on several occasions suspended frequently and he has repeated the same thing 6 times but not improved his performance and accordingly the authorities in view of the power conferred under Regulation 118 of the Regulation 1978 read with Section 118 of the amended Regulation, 1990 has passed the order of compulsory retirement in public interest and it is based upon the subjective satisfaction of the employer, hence there is very limited scope of judicial review, as has been held by Hon’ble Apex Court in the case of Rajasthan State Road Transport Corporation (supra). 13. Interference is permissible only on the ground of non-application of mind, mala-fide, perverse or arbitrary and if there is non-compliance of the statutory duty by the authority. Power to retire compulsorily the government servant in terms of service rule is absolute, provided that the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. 14. So far as the argument advanced on behalf of learned counsel representing the petitioner that the decision for premature retirement of the petitioner which has been prepared by the Review Committee having been presided over by the Chairman-cum-Managing Director of the Corporation who also presided over the meeting accepting the recommendation of the Review Committee cannot be said to be bona fide, but that cannot be accepted for the reason t hat as per the regulation 118 of the Regulation 1978 the appointing authority has been empowered to retire any employee in public interest and the Chairman-cum-Managing Director in order to verify the service record of individual employee of the Corporation has constituted a committee which has been presided over by him in order to know the service record of one or the other employees of the Corporation by constituting a committee in this regard and when the committee has recommended for premature retirement of the employees including the petitioner, the said recommendation has been accepted by the Board which has been presided over by the Chairman-cum-Managing Director, hence it cannot be said that the Chairman-cum-Managing Director has acted with ulterior motive, otherwise the Chairman-cum-Managing Director would have taken decision for premature retirement in individual capacity also as per the power conferred under Regulation 118 of Regulation 1978 in the public interest. But in order to adopt fairness he has constituted a committee, hence the petitioner has been retired on the basis of the decision of the committee. Even otherwise also from Annexure-A annexed to the courter affidavit it is evident that the petitioner has been punished on several occasions and he has also not performed well and accordingly decision was taken by the committee for premature retirement of the petitioner considering the public interest in general. 15. Taking into consideration the entire service record of the petitioner, wherein he has been charge-sheeted, suspended and punished for 6 occasions, hence it cannot be said that the authorities have acted with malice, arbitrariness and without any rational, hence the decision of the compulsory retirement being subjective satisfaction of the employer, cannot be judicially reviewed by this Court for the reasons stated above. Accordingly, the writ petition is dismissed being devoid of merits.