Basudeb Rath Vs. State of Orissa and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1084154
CourtOrissa High Court
Decided OnAug-16-2012
AppellantBasudeb Rath
RespondentState of Orissa and Others
Excerpt:
high court of orissa: cuttack o.j.c. no.16546 of 2001 in the matter of an application under articles 226 and 227 of the constitution of india. ------------basudeb rath …. petitioner - versus state of orissa and others …. for petitioner opposite parties -- mr.b.b.dash for opp. parties -- mr.sangram das addl. standing counsel present: the honourable shri justice l. mohapatra and the honourable shri justice c.r.dash date of hearing 07. 8.2012 l. mohapatra, j.: date of judgment:16. 8 .2012 the petitioner, while working as assistant settlement officer in the district of balasore, was prematurely retired on completion of age of 50 years by order of the member, board of revenue dated 30 th november, 1992 in annexure-5 in public interest. challenging the said order of compulsory retirement, the petitioner approached the orissa administrative tribunal in o.a.no.2594 of 1992 and the said original application having been dismissed by the tribunal on 13.7.1999, this writ application has been filed challenging the said order of compulsory 2 retirement in annexure-5 as well as the order of the tribunal dated 13.7.1999 in annexure-4.2. the petitioner was appointed in the year 1970 under the settlement organization and he was promoted to the post of assistant settlement officer with effect from 3.11.1972. he became a gazetted assistant settlement officer under the orissa settlement and consolidation service with effect from 15.12.1973 and, accordingly, his services were guided by o.s.c.s. (recruitment and conditions of service) rules, 1980. he was confirmed in the o.s.c.s. cadre by notification dated 21.3.1985. he was allowed to cross the first efficiency bar by order dated 19.10.1987 passed by the board of revenue with effect from 1.1.1981. during his service tenure, he was proceeded with five departmental proceedings on different charges and the first proceeding was drawn in the year 1982. he was exonerated of the charges by order of the government dated 25.2.1984, but during the period of suspension, adverse remarks were given in his c.c.r. again in march, 1985 the second departmental proceeding was initiated and the petitioner faced minot punishment. the reporting officer, who had given adverse remarks for the year 1981-82 and 1982-83, also again gave adverse remark in 1983-84 and 1984-85. in july, 1986 the third departmental proceeding was initiated and the petitioner faced minot penalty. the 4th departmental proceeding was initiated in august, 1992. the petitioner was exonerated of all the charges by order of the board of 3 revenue dated 21.4.1995. the petitioner was compulsorily retired on 30.11.1992. on the departmental basis of proceeding was a memo initiated dated 8.7.1992 against him another after such retirement, but the department could not prove the charges and, accordingly, he was exonerated of the charges.3. it is the case of the petitioner that he having been exonerated in two departmental proceedings of all the charges and the major charges in the other departmental proceedings having not been proved against him, there was no reason to prematurely retire him when the adverse remarks made during the relevant years are the basis for initiation of the departmental proceedings. it is also the case of the petitioner that he having been confirmed in the post on 21.3.1985 under the relevant rules, the previous c.c.r. entries could not be taken into consideration by the government for the purpose of premature retirement. it is also the case of the petitioner that he having been allowed to cross the efficiency bar with effect from 1.1.1988, the adverse entries in between 1981-88 could not also be taken into consideration for the purpose of premature retirement. according to the petitioner, all the adverse entries up to 1.1.1988 got wiped out. the petitioner having been confirmed in the year 1985 and having been allowed to cross the efficiency bar with effect from 1.1.1988, there was only one adverse entry after 1.1.1988 showing the petitioner to be an average officer. therefore, 4 on the basis of one adverse entry he could not have been prematurely retired.4. a counter affidavit has been filed by the under secretary, directorate of land records, survey, board of revenue, orissa, cuttack on behalf of opposite parties 3 and 4. it is stated in the counter affidavit that the petitioner had been punished in the departmental proceedings and during the year 1985-86, he was found unfit for public service as he was lacking integrity and was irresponsible and negligent. adverse remarks made in the years 1984-85 and 1985-86 persuaded the government to retire the petitioner prematurely. the petitioner has been given adverse remark in the ccrs from 1981-82 to 1985-86 touching his integrity and the review committee had taken those c.c.rs into consideration to take a decision. the allegation of mala fide is also denied by the opposite parties 3 and 4 on the ground that the review committee had recommended not only the case of the petitioner but also six other officers for premature retirement in public interest and, therefore, the petitioner had not been singled out. it is also contended in the counter affidavit that the petitioner had been allowed to cross the first efficiency bar with effect from 1.1.1981 basing on the c.c.rs prior to 1981 and, accordingly, the adverse entries in the c.c.rs as well as the punishment imposed in the departmental proceeding after 1981 had not been taken into consideration. the petitioner never submitted an application for expunction of the adverse entries and, accordingly, the 5 adverse entries continued in the record. taking all these facts into account, the tribunal dismissed the original application filed by the petitioner.5. learned counsel appearing for the petitioner assailed the order of compulsory retirement as well as the order of the tribunal on the ground that the adverse entries made prior to 1988 could not be taken into account after the petitioner was allowed to cross the second efficiency bar with effect from 1.1.1988. the adverse entries after 1981 could not also been taken into consideration as the petitioner was confirmed in service in the year 1985. therefore, the review committee should have taken into account only one entry after 1988. the remark in the c.c.r. after 1988 is that the petitioner was an “average officer”.. on the basis of such remark in the c.c.r., no such decision for compulsory retirement could be taken by the review committee. learned counsel appearing for the state submitted that crossing efficiency bar does not stand on the same footing as that of the promotion and, therefore, merely because the petitioner was allowed to cross the efficiency bar by efflux of time, the adverse entries made in the c.c.rs. can not be overlooked. the review committee specifically looked into the adverse entries for the year 1985-86 and onwards to come to a conclusion that the petitioner was not fit to continue as officer any further in public interest and, accordingly decided to retire him prematurely. 6 learned counsel for the state further submitted that this court cannot sit in appeal over the decision of the review committee and reverse the order so long as the court is not satisfied that the order of premature retirement is tainted with mala fide or arbitrariness.6. undisputedly, this court has limited jurisdiction in interfering with a decision of the review committee to prematurely retire the petitioner in public interest. the court can interfere only on certain circumstances. the hon’ble apex court in the case of state of gujrat vrs. umedbhai m.patel reported in (2001) 3 supreme court cases 314 reiterated the law, which is broadly summarized below:“(i) whenever the services of a public servant are no longer useful to the general administration, he can be compulsorily retired for the sake of public interest. (i) ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under article 311 of the constitution. (ii) for better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iii) any adverse entries made in the confidential record shall be taken note of and be given due weight in passing such order. (iv) even un-communicated entries in the confidential record can also be taken into consideration. (v) the order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vi) if the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. 7 (vii) 7. compulsory retirement shall not be imposed as a punitive measure”.. the limits of judicial review of an order of compulsory retirement has also been laid down by the hon’ble apex court in the case of baikuntha nath das and another vrs. chief district medical officer, baripada and another reported in (1992) 2 supreme court cases 299. in the said decision, the hon’ble apex court held that judicial review of an order of compulsory retirement is open only on grounds of mala fides, arbitrariness and perversity. in the case of state of gujarat and another vrs. suryakant chunilal shah reported in (1999) 1 supreme court cases 529, the hon’ble apex court held that public interest is the primary consideration for compulsory retirement. only honest and efficient persons are to be retained in service while dishonest, corrupt and dead wood, to be dispensed with. efficiency and honesty are to be assessed on the basis of material on record of which confidential reports are an important input. an employee with doubtful integrity cannot be considered as efficient. in the light of the above decisions, if the case of the petitioner is considered, it will be found that the petitioner had been given adverse entries from 1981-82. the entry in c.c.r. for the year 1981-82 is “integrity was doubtful”.. the entry for the year 1982-83 is “dishonest/corrupt officer, busy in extracting illegal gratification from raiyats and misappropriated peon’s pay”.. the entry for the year 1983-84 is “doubtful integrity needing close watch”.. the entry 8 for the year 1984-85 is “questionable integrity”.. the entry for the year 1985-86 is “lacking integrity”.. the entry for the year 1987-88 is “good officer”. and the entry for the year 1988-89 is “average officer”..8. the above entries clearly show that from 1981-82 till 1986- 87 the petitioner has been constantly rated as a dishonest officer. in relation to these entries, it was contended by the learned counsel for the petitioner that all these entries were made by one officer and during the said period, the departmental proceedings were started and in two of the departmental proceedings, the petitioner had been exonerated from the charges. though factually the learned counsel for the petitioner is correct in saying that during the said period out of four departmental proceedings two did not yield-result and the petitioner was exonerated of the charges, there is also no dispute that in two of the departmental proceedings he was found guilty and minot punishments were imposed. the allegation of mala fide made in course of hearing is not substantiated by any material. we are therefore unable to accept the above contention of the learned counsel appearing for the petitioner.9. the other submission of the learned counsel for the petitioner relates to crossing of efficiency bar for the second time with effect from 1.1.1988. with reference to the same, it was contended by the learned counsel that once the petitioner was allowed to cross the efficiency bar with effect from 1.1.1988, all the adverse entries prior to that cannot be looked into. reliance was placed by the learned counsel 9 for the petitioner on a decision of the hon’ble apex court in the case of the state of punjab vrs. dewan chuni lal reported in air 197.supreme court 2086. in the said reported case, a police sub-inspector was dismissed from service on the charges of inefficiency and dishonesty based on adverse reports of superior officers. a departmental proceeding was initiated against him. the hon’ble apex court in paragraph-14 of the judgment observed that the reports earlier than 1944 should not have been considered at all inasmuch as the petitioner therein was allowed to cross the efficiency bar in that year. it is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942, they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. reliance was also placed on another decision of the hon’ble supreme court in the case of swami saran saksena vrs. state of uttar pradesh reported in air 198.supreme court 269. in the said reported case, a temporary judicial officer in the service of the u.p. state was compulsorily retired from service few months after he was allowed to cross the second efficiency bar. the court observed that there was no material to show that his standard had deteriorated to such an extent in few months that an order for premature retirement could be passed.10. the above decision is clearly distinguishable on facts as there is no material on record to show that prior to crossing of the 10 efficiency bar, there was any adverse remark against the petitioner therein. the later decisions of the hon’ble supreme court clearly lay down the law that so long as an order of compulsory retirement is not affected by mala fides or arbitrariness, the courts have hardly any jurisdiction to interfere with the same specially when the adverse entries relate to lack of integrity. in the present case as stated earlier the adverse entries from the years 1981-82 to 1985-86 relate to lack of integrity and at no point of time the petitioner filed any representation for expunction of the said adverse remark. the adverse remarks were accepted by the petitioner and, therefore merely because he was allowed to cross the efficiency bar with effect from 1.1.1988, it cannot be said that the adverse entries prior to 1988 not objected to by the petitioner got wiped out. the petitioner having been compulsorily retired in public interest on consideration of the adverse entries relating to lack of integrity, we find no justification to interfere with the same.11. the writ application is accordingly dismissed. ……………………… l.mohapatra, j.c.r. dash, j.i agree. ………………..…… c.r.dash, j.orissa high court, cuttack. the 16th august,2012/c.r.biswal. 11
Judgment:

HIGH COURT OF ORISSA: CUTTACK O.J.C. No.16546 of 2001 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------Basudeb Rath …. Petitioner - Versus State of Orissa and others …. For Petitioner Opposite parties -- Mr.B.B.Dash For Opp. parties -- Mr.Sangram Das Addl. Standing Counsel PRESENT: THE HONOURABLE SHRI JUSTICE L. MOHAPATRA AND THE HONOURABLE SHRI JUSTICE C.R.DASH Date of hearing 07. 8.2012 L. MOHAPATRA, J.: Date of judgment:

16. 8 .2012 The petitioner, while working as Assistant Settlement Officer in the district of Balasore, was prematurely retired on completion of age of 50 years by order of the Member, Board of Revenue dated 30 th November, 1992 in Annexure-5 in public interest. Challenging the said order of compulsory retirement, the petitioner approached the Orissa Administrative Tribunal in O.A.No.2594 of 1992 and the said Original Application having been dismissed by the Tribunal on 13.7.1999, this writ application has been filed challenging the said order of compulsory 2 retirement in Annexure-5 as well as the order of the Tribunal dated 13.7.1999 in Annexure-4.

2. The petitioner was appointed in the year 1970 under the Settlement Organization and he was promoted to the post of Assistant Settlement Officer with effect from 3.11.1972. He became a gazetted Assistant Settlement Officer under the Orissa Settlement and Consolidation Service with effect from 15.12.1973 and, accordingly, his services were guided by O.S.C.S. (Recruitment and Conditions of Service) Rules, 1980. He was confirmed in the O.S.C.S. cadre by notification dated 21.3.1985. He was allowed to cross the first efficiency bar by order dated 19.10.1987 passed by the Board of Revenue with effect from 1.1.1981. During his service tenure, he was proceeded with five departmental proceedings on different charges and the first proceeding was drawn in the year 1982. He was exonerated of the charges by order of the Government dated 25.2.1984, but during the period of suspension, adverse remarks were given in his C.C.R. Again in March, 1985 the second departmental proceeding was initiated and the petitioner faced minot punishment. The Reporting Officer, who had given adverse remarks for the year 1981-82 and 1982-83, also again gave adverse remark in 1983-84 and 1984-85. In July, 1986 the third departmental proceeding was initiated and the petitioner faced minot penalty. The 4th departmental proceeding was initiated in August, 1992. The petitioner was exonerated of all the charges by order of the Board of 3 Revenue dated 21.4.1995. The petitioner was compulsorily retired on 30.11.1992. On the departmental basis of proceeding was a memo initiated dated 8.7.1992 against him another after such retirement, but the department could not prove the charges and, accordingly, he was exonerated of the charges.

3. It is the case of the petitioner that he having been exonerated in two departmental proceedings of all the charges and the major charges in the other departmental proceedings having not been proved against him, there was no reason to prematurely retire him when the adverse remarks made during the relevant years are the basis for initiation of the departmental proceedings. It is also the case of the petitioner that he having been confirmed in the post on 21.3.1985 under the relevant rules, the previous C.C.R. entries could not be taken into consideration by the Government for the purpose of premature retirement. It is also the case of the petitioner that he having been allowed to cross the efficiency bar with effect from 1.1.1988, the adverse entries in between 1981-88 could not also be taken into consideration for the purpose of premature retirement. According to the petitioner, all the adverse entries up to 1.1.1988 got wiped out. The petitioner having been confirmed in the year 1985 and having been allowed to cross the efficiency bar with effect from 1.1.1988, there was only one adverse entry after 1.1.1988 showing the petitioner to be an average officer. Therefore, 4 on the basis of one adverse entry he could not have been prematurely retired.

4. A counter affidavit has been filed by the Under Secretary, Directorate of Land Records, Survey, Board of Revenue, Orissa, Cuttack on behalf of opposite parties 3 and 4. It is stated in the counter affidavit that the petitioner had been punished in the departmental proceedings and during the year 1985-86, he was found unfit for public service as he was lacking integrity and was irresponsible and negligent. Adverse remarks made in the years 1984-85 and 1985-86 persuaded the Government to retire the petitioner prematurely. The petitioner has been given adverse remark in the CCRs from 1981-82 to 1985-86 touching his integrity and the review committee had taken those C.C.Rs into consideration to take a decision. The allegation of mala fide is also denied by the opposite parties 3 and 4 on the ground that the review committee had recommended not only the case of the petitioner but also six other officers for premature retirement in public interest and, therefore, the petitioner had not been singled out. It is also contended in the counter affidavit that the petitioner had been allowed to cross the first efficiency bar with effect from 1.1.1981 basing on the C.C.Rs prior to 1981 and, accordingly, the adverse entries in the C.C.Rs as well as the punishment imposed in the departmental proceeding after 1981 had not been taken into consideration. The petitioner never submitted an application for expunction of the adverse entries and, accordingly, the 5 adverse entries continued in the record. Taking all these facts into account, the Tribunal dismissed the Original Application filed by the petitioner.

5. Learned counsel appearing for the petitioner assailed the order of compulsory retirement as well as the order of the Tribunal on the ground that the adverse entries made prior to 1988 could not be taken into account after the petitioner was allowed to cross the second efficiency bar with effect from 1.1.1988. The adverse entries after 1981 could not also been taken into consideration as the petitioner was confirmed in service in the year 1985. Therefore, the review committee should have taken into account only one entry after 1988. The remark in the C.C.R. after 1988 is that the petitioner was an “average officer”.. On the basis of such remark in the C.C.R., no such decision for compulsory retirement could be taken by the review committee. Learned counsel appearing for the State submitted that crossing efficiency bar does not stand on the same footing as that of the promotion and, therefore, merely because the petitioner was allowed to cross the efficiency bar by efflux of time, the adverse entries made in the C.C.Rs. can not be overlooked. The review committee specifically looked into the adverse entries for the year 1985-86 and onwards to come to a conclusion that the petitioner was not fit to continue as Officer any further in public interest and, accordingly decided to retire him prematurely. 6 Learned counsel for the State further submitted that this Court cannot sit in appeal over the decision of the review committee and reverse the order so long as the Court is not satisfied that the order of premature retirement is tainted with mala fide or arbitrariness.

6. Undisputedly, this Court has limited jurisdiction in interfering with a decision of the review committee to prematurely retire the petitioner in public interest. The Court can interfere only on certain circumstances. The Hon’ble Apex Court in the case of State of Gujrat Vrs. Umedbhai M.Patel reported in (2001) 3 Supreme Court Cases 314 reiterated the law, which is broadly summarized below:“(i) Whenever the services of a public servant are no longer useful to the general administration, he can be compulsorily retired for the sake of public interest. (i) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (ii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iii) Any adverse entries made in the confidential record shall be taken note of and be given due weight in passing such order. (iv) Even un-communicated entries in the confidential record can also be taken into consideration. (v) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vi) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. 7 (vii) 7. Compulsory retirement shall not be imposed as a punitive measure”.. The limits of judicial review of an order of compulsory retirement has also been laid down by the Hon’ble Apex Court in the case of Baikuntha Nath Das and another Vrs. Chief District Medical Officer, Baripada and another reported in (1992) 2 Supreme Court Cases 299. In the said decision, the Hon’ble Apex Court held that judicial review of an order of compulsory retirement is open only on grounds of mala fides, arbitrariness and perversity. In the case of State of Gujarat and another Vrs. Suryakant Chunilal Shah reported in (1999) 1 Supreme Court Cases 529, the Hon’ble Apex Court held that public interest is the primary consideration for compulsory retirement. Only honest and efficient persons are to be retained in service while dishonest, corrupt and dead wood, to be dispensed with. Efficiency and honesty are to be assessed on the basis of material on record of which confidential reports are an important input. An employee with doubtful integrity cannot be considered as efficient. In the light of the above decisions, if the case of the petitioner is considered, it will be found that the petitioner had been given adverse entries from 1981-82. The entry in C.C.R. for the year 1981-82 is “integrity was doubtful”.. The entry for the year 1982-83 is “dishonest/corrupt officer, busy in extracting illegal gratification from raiyats and misappropriated peon’s pay”.. The entry for the year 1983-84 is “doubtful integrity needing close watch”.. The entry 8 for the year 1984-85 is “questionable integrity”.. The entry for the year 1985-86 is “lacking integrity”.. The entry for the year 1987-88 is “Good Officer”. and the entry for the year 1988-89 is “average officer”..

8. The above entries clearly show that from 1981-82 till 1986- 87 the petitioner has been constantly rated as a dishonest officer. In relation to these entries, it was contended by the learned counsel for the petitioner that all these entries were made by one officer and during the said period, the departmental proceedings were started and in two of the departmental proceedings, the petitioner had been exonerated from the charges. Though factually the learned counsel for the petitioner is correct in saying that during the said period out of four departmental proceedings two did not yield-result and the petitioner was exonerated of the charges, there is also no dispute that in two of the departmental proceedings he was found guilty and minot punishments were imposed. The allegation of mala fide made in course of hearing is not substantiated by any material. We are therefore unable to accept the above contention of the learned counsel appearing for the petitioner.

9. The other submission of the learned counsel for the petitioner relates to crossing of efficiency bar for the second time with effect from 1.1.1988. With reference to the same, it was contended by the learned counsel that once the petitioner was allowed to cross the efficiency bar with effect from 1.1.1988, all the adverse entries prior to that cannot be looked into. Reliance was placed by the learned counsel 9 for the petitioner on a decision of the Hon’ble Apex Court in the case of The State of Punjab Vrs. Dewan Chuni Lal reported in AIR 197.Supreme Court 2086. In the said reported case, a police Sub-Inspector was dismissed from service on the charges of inefficiency and dishonesty based on adverse reports of Superior Officers. A departmental proceeding was initiated against him. The Hon’ble Apex Court in paragraph-14 of the judgment observed that the reports earlier than 1944 should not have been considered at all inasmuch as the petitioner therein was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942, they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. Reliance was also placed on another decision of the Hon’ble Supreme Court in the case of Swami Saran Saksena Vrs. State of Uttar Pradesh reported in AIR 198.Supreme Court 269. In the said reported case, a temporary Judicial Officer in the service of the U.P. State was compulsorily retired from service few months after he was allowed to cross the second efficiency bar. The Court observed that there was no material to show that his standard had deteriorated to such an extent in few months that an order for premature retirement could be passed.

10. The above decision is clearly distinguishable on facts as there is no material on record to show that prior to crossing of the 10 efficiency bar, there was any adverse remark against the petitioner therein. The later decisions of the Hon’ble Supreme Court clearly lay down the law that so long as an order of compulsory retirement is not affected by mala fides or arbitrariness, the Courts have hardly any jurisdiction to interfere with the same specially when the adverse entries relate to lack of integrity. In the present case as stated earlier the adverse entries from the years 1981-82 to 1985-86 relate to lack of integrity and at no point of time the petitioner filed any representation for expunction of the said adverse remark. The adverse remarks were accepted by the petitioner and, therefore merely because he was allowed to cross the efficiency bar with effect from 1.1.1988, it cannot be said that the adverse entries prior to 1988 not objected to by the petitioner got wiped out. The petitioner having been compulsorily retired in public interest on consideration of the adverse entries relating to lack of integrity, we find no justification to interfere with the same.

11. The writ application is accordingly dismissed. ……………………… L.Mohapatra, J.C.R. Dash, J.I agree. ………………..…… C.R.Dash, J.Orissa High Court, Cuttack. The 16th August,2012/C.R.Biswal. 11