Posts and Telegraphs Board and Others Vs. C.S.N. Murthy - Court Judgment

Excerpt:
constitution - compulsory retirement - rule 56 of fundamental rules - whether high court justified in quashing order of compulsory retirement passed against respondent under rule 56 (j) - order of compulsory retirement is not punishment and it implies no stigma nor any suggestion of misbehaviour - principles of natural justice have no place in context of order of compulsory retirement - courts can interfere with such order only if it satisfied that order is mala fide or based on no evidence or if it is found to be perverse order - high court erred in setting aside order of compulsory retirement on basis that there was no material on record justifying action against respondent - order of high court set aside. - [a.k. sarkar,; m. hidayatullah,; n. rajagopala ayyangar,; raghuvar dayal, jj.] the respondent had brought a suit in the court of the sub- ordinate judge, jalpaiguri for declaration of his title as the sole heir and successor to his father's impartible estate, which was taken possession of by his step-mother. that suit was on transfer pending in the high court. two other title suits were also pending in the high court in which certain agnates were claiming as successors. the respondent moved an application before the district judge, jalpaiguri for the taking of security from the appellant under s. iv of the bengal wills and intestacy regulation v of 1799. the district judge held that the application was barred under art. 181 of the indian limitation act and that s. iv of the regulation had no application since it applied only where the deceased had left several heirs and not one. the high court found in favour of the respondent on both the points and directed the district judge to take security under s. iv. section iv of the regulation is as follows, "if there be more heirs than one to the estate of a person dying intestate, and they can agree amongst themselves in the appointment of a common manager, they are at liberty to take possession, and the courts of justice are restricted from interference, without a regular complaint, as in the case of a single heir; but if the right of succession to the estate be disputed between several claimants, one or more of whom may have taken possession, the judge, on a regular suit being preferred by the party out of possession, shall take good and sufficient security from the party or parties in possession for his or their compliance with the judgment that may be passed in the suit; or, in default of such security being given within a reasonable period, may give possession, until the suit may be determined, to the other claimant or claimants who may be able to give such security, declaring at the same time that such possession is not in any degree to affect the right of property at issue between the parties; but to be considered merely as an administration to the estate for the benefit of the heirs who may on investigation be found entitled to succeed thereto." held (per hidayatullah, dayal and ayyangar jj.) that the regulation was a piece of restrictive legislation and its provisions should be strictly construed. each of the ss. ii, iii and iv of the regulation, properly read and construed, was a complete code by itself and dealt with the different situations. section ii applied when the deceased died deb leaving a will and naming an executor to manage the property, s.111 applied when the deceased died intestate leaving a single heir and s. iv applied when the deceased died intestate leaving more than one heir. the provisions of ss. iii and iv were in no way inconsistent and it was not necessary to construe them together. cohen v. s. e. railway, (1877) 2 e. & d. 253, held inapplic- able. the second part of s. iv which provided for taking of security did not apply to a case such as the present where the deceased died intestate leaving only one heir entitled to the entire estate. it fell within the ambit of s. iii of the regulation. since the courts have now ample powers under the indian succession act, 1925, and the code of civil procedure, these provisions of the regulation are out of date and should be repealed. per s. k. das and sarkar jj -section iv of the regulation does not require an application for taking security and the court can act suo motu. art. 181 is confined to applications under the code of civil procedure and it can have no application to the present application as it is under s. iv of the regulation and not under the code. an application is not under the code because the procedure there laid down has to be followed. sha mulchand & co. ltd. v. jawahar mills, ltd. [1953] s.c.r. 351, applied. the court of the district judge is the proper forum where the application under s. iv can be made. in the absence of an order under s. 23 of the bengal, agra and assam civil courts act, 1887, the order contemplated by s. iv can be made only by a district judge and it is not necessary that the suit mentioned in the section must be pending before him. kumar punyendra dev v. kumar bhairabend -a deb. (1946) 50 c. w. n. 776, approved. there is no reason why the resolution should provide differ- ently for cases of a single heir and cases of more than one heir and it does not do so. the words "if the right of succession to the estate is disputed between several claimants" in s. iv includes a case where a person dies leaving a single heir and several persons dispute each claiming to be that heir. separated by a semi-colon they cannot deal with two different states of affairs and that the latter part' must be controlled by the former. neither does the word "but" between the two parts lead to that conclusion. the word 'heirs' in the second part of s. iv must include one heir. section iv of the regulation, therefore, applied to the case and the appellant could be called upon to furnish security. it was not correct to say that s. iv of the regulation was impliedly repealed by ss. 192 to 195 of the succession act, 1925. the high court had jurisdiction in revision to set aside the order of the district judge since he had failed to exercise his jurisdiction on a misinterpretation of the statute and erroneous view of limitation. joy chand lal babu v. kamalaksha choudhury. (1949) 76 i. a. 131, applied. but the power to take the security under s. iv of the regulation is a discretionary power vested in the district judge and the high court was in error in directing him to do so. - the committee recommended, on an overall assessment of the confidential records, that there was no justification for continuing the petitioner and two others (with whom we are not here concerned) in service. consequent thereupon, the respondent's services came to an end, by way of compulsory retirement, in february 1974. 2. the respondent filed a writ petition in the andhra pradesh high court challenging the validity of the order of compulsory retirement but the writ petition was unsuccessful. while the high court or this court would not examine the matter as a appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary-in the sense that no reasonable person would form the requisite opinion on the given material; it was also observed that he had not taken adequate interest in his job, that his handling of staff has also not been satisfactory leading to several complaints, and that there were cases of delays, bad relations and technical neglect, calling for improvement. it is true that the earlier record of the respondent was good but if the record showed that the standard of work of the respondent had declined and was not satisfactory, that was certainly material enabling the department to come to a conclusion under fundamental rule 56(j). we are of opinion that the high court erred in setting aside the order of compulsory retirement on the basis that there was no material at all on record justifying the action against the respondent. 6. for the reasons mentioned above, we allow this appeal and set aside the order of the division bench and restore the order of the single judge of the high court as well as the order of compulsory retirement of the petitioner dated 29.10.71. we, however, make no order as to costs.orderranganathan, j.1. the respondent, c.s.n. murthy, was an assistant engineer in the telecommunication training center at hyderabad. he was normally due to retire from service in 1980. however, the provisions of rule 56(j) of the fundamental rules were invoked in his case. a high powered committee consisting of the secretary to the ministry of finance and the joint secretary to the cabinet secretariat reviewed the service records of 96 persons belonging to the department. the committee recommended, on an overall assessment of the confidential records, that there was no justification for continuing the petitioner and two others (with whom we are not here concerned) in service. accepting the recommendations of the committee, the posts and telegraphs board issued a notice on the respondent on 19.10.73 giving him notice of compulsory retirement under fundamental rule 56(j) with effect from the expiry of three months from the date of service of the notice on him. consequent thereupon, the respondent's services came to an end, by way of compulsory retirement, in february 1974.2. the respondent filed a writ petition in the andhra pradesh high court challenging the validity of the order of compulsory retirement but the writ petition was unsuccessful. however, the appeal preferred by him to a division bench of the high court was allowed. the division bench, in its judgment and order dated 19.7.76, came to the conclusion that the impugned order of retirement was not founded on any relevant material and was arbitrary and capricious. the impugned order was, therefore, quashed and the petitioner was directed to be reinstated forthwith with all the benefits that could have accrued to him had the order not been implemented against him. the union of india has preferred the present appeal.3. the modalities for the invocation of fundamental rule 56(j) have been examined by a number of decisions of this court. all these judgments have been reviewed and the legal principles applicable thereto have been summarised by b.p. jeevan reddy j., speaking for the supreme court, in baikuntha nath das v. chief district medical officer, baripada : (1992)illj784sc . these principles have been set out in paragraph 32 of the judgment, which can be extracted here for purposes of convenient reference:32. the following principles emerge from the above discussion:(i) an order of compulsory retirement is not a punishment. it implies no stigma nor any suggestion of misbehaviour.(ii) the order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. the order is passed on the subjective satisfaction of the government.(iii) principles of natural justice have no place in the context of an order of compulsory retirement. this does not mean that judicial scrutiny is excluded altogether. while the high court or this court would not examine the matter as a appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary-in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.(iv) the government (or the review committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. the record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. if a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.(v) an order of compulsory retirement is not liable to be quashed by a court merely on showing that, while passing it uncommunicated adverse remarks were also taken into consideration. that circumstance by itself cannot be a basis for interference.interference is permissible only on the grounds mentioned in (iii) above. this aspect has been discussed in paras 29 to 31 above.4. in the present case, the service records of the petitioner were reviewed by a high powered committee. it is true that there was no material adverse to the respondent up to the year 1969-70. but there were adverse entries for the financial years 1970-71 and 1971-72. the purport of the confidential reports of these years has been placed before this court and had also been referred to by the high court. these have been set out in letters addressed to the respondent by his superiors on 29.4.1971 and 15.4.1972 respectively. a perusal of these letters shows that they were objective appraisals of the petitioner's work during the two financial years in question. they point out that certain aspects of the respondent's working were quite satisfactory but they also emphasise that certain deficiencies were found in his work during these years for which he was duly cautioned. in the first letter he was cautioned to take more interest in auto manual positions' functioning and against indulging in disrespectful language towards superiors. the petitioner's capacity for tact and courtesy was described as not satisfactory. it was also observed that he had not taken adequate interest in his job, that his handling of staff has also not been satisfactory leading to several complaints, and that there were cases of delays, bad relations and technical neglect, calling for improvement. the letter dated 15.4.72, likewise, after referring to the favourable remarks earned by the respondent emphasised three aspects on which the petitioner's conduct was unsatisfactory. he had been warned for delay in disposal of complaint cases, for delay in confirming a deceased official and for not taking timely action for clearance of jungle on 'main line cuddapah tadpatri.5. it will be clear from the extracts referred to above, that though the respondent's conduct was quite satisfactory till march 1970, his standard of work had declined in the last two years under review. in both these years, it was found that he was not taking adequate interest in his work and was responsible for delays of various kinds. as has already been pointed out, an order of compulsory retirement is not an order of punishment. fundamental rule 56(j) authorises the government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. the nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the government to decide upon. the courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record. no mala fides have been urged in the present case. the only suggestion of the high court is that the record discloses no material which would justify the action taken against the respondent. we are unable to agree. in our opinion, there was material which showed that the efficiency of the petitioner was slackening in the last two years of the period under review and it is, therefore, not possible for us to fault the conclusion of the department as being mala fide, perverse, arbitrary or unreasonable. the division bench seems to have thought that, since the adverse remarks mentioned in the earlier letter of 29th april, 1971 were not repeated in the subsequent letter, it should be taken that they had been given up subsequently or that the respondent had improved in the subsequent year. we do not think that this is a legitimate inference, for the report for 1971-72 only shows that the respondents' propensity to delay matters persisted despite the warning of the previous year. but, even if one assumes that the high court was correct on this, the adverse remarks made against the respondent in relation to the period 1971-72, standing by themselves, can constitute sufficient material for the department to come to a conclusion in the matter. it is true that the earlier record of the respondent was good but if the record showed that the standard of work of the respondent had declined and was not satisfactory, that was certainly material enabling the department to come to a conclusion under fundamental rule 56(j). we are of opinion that the high court erred in setting aside the order of compulsory retirement on the basis that there was no material at all on record justifying the action against the respondent.6. for the reasons mentioned above, we allow this appeal and set aside the order of the division bench and restore the order of the single judge of the high court as well as the order of compulsory retirement of the petitioner dated 29.10.71. we, however, make no order as to costs.

Judgment:
ORDER

Ranganathan, J.

1. The respondent, C.S.N. Murthy, was an Assistant Engineer in the Telecommunication Training center at Hyderabad. He was normally due to retire from service in 1980. However, the provisions of Rule 56(j) of the Fundamental Rules were invoked in his case. A high powered committee consisting of the Secretary to the Ministry of Finance and the Joint Secretary to the Cabinet Secretariat reviewed the service records of 96 persons belonging to the Department. The committee recommended, on an overall assessment of the confidential records, that there was no justification for continuing the petitioner and two others (with whom we are not here concerned) in service. Accepting the recommendations of the committee, the Posts and Telegraphs Board issued a notice on the respondent on 19.10.73 giving him notice of compulsory retirement under fundamental Rule 56(j) with effect from the expiry of three months from the date of service of the notice on him. Consequent thereupon, the respondent's services came to an end, by way of compulsory retirement, in February 1974.

2. The respondent filed a writ petition in the Andhra Pradesh High Court challenging the validity of the order of compulsory retirement but the writ petition was unsuccessful. However, the appeal preferred by him to a Division Bench of the High Court was allowed. The Division Bench, in its judgment and order dated 19.7.76, came to the conclusion that the impugned order of retirement was not founded on any relevant material and was arbitrary and capricious. The impugned order was, therefore, quashed and the petitioner was directed to be reinstated forthwith with all the benefits that could have accrued to him had the order not been implemented against him. The Union of India has preferred the present appeal.

3. The modalities for the invocation of fundamental Rule 56(j) have been examined by a number of decisions of this Court. All these judgments have been reviewed and the legal principles applicable thereto have been summarised by B.P. Jeevan Reddy J., speaking for the Supreme Court, in Baikuntha Nath Das v. Chief District Medical Officer, Baripada : (1992)ILLJ784SC . These principles have been set out in paragraph 32 of the judgment, which can be extracted here for purposes of convenient reference:

32. The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as a appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary-in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.

(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later yeaRs. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not Upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on showing that, while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above.

4. In the present case, the service records of the petitioner were reviewed by a high powered committee. It is true that there was no material adverse to the respondent up to the year 1969-70. But there were adverse entries for the financial years 1970-71 and 1971-72. The purport of the confidential reports of these years has been placed before this Court and had also been referred to by the High Court. These have been set out in letters addressed to the respondent by his superiors on 29.4.1971 and 15.4.1972 respectively. A perusal of these letters shows that they were objective appraisals of the petitioner's work during the two financial years in question. They point out that certain aspects of the respondent's working were quite satisfactory but they also emphasise that certain deficiencies were found in his work during these years for which he was duly cautioned. In the first letter he was cautioned to take more interest in Auto Manual Positions' functioning and against indulging in disrespectful language towards superiOrs. The petitioner's capacity for tact and courtesy was described as not satisfactory. It was also observed that he had not taken adequate interest in his job, that his handling of staff has also not been satisfactory leading to several complaints, and that there were cases of delays, bad relations and technical neglect, calling for improvement. The letter dated 15.4.72, likewise, after referring to the favourable remarks earned by the respondent emphasised three aspects on which the petitioner's conduct was unsatisfactory. He had been warned for delay in disposal of complaint cases, for delay in confirming a deceased official and for not taking timely action for clearance of jungle on 'main line Cuddapah Tadpatri.

5. It will be clear from the extracts referred to above, that though the respondent's conduct was quite satisfactory till March 1970, his standard of work had declined in the last two years under review. In both these years, it was found that he was not taking adequate interest in his work and was responsible for delays of various kinds. As has already been pointed out, an order of compulsory retirement is not an order of punishment. Fundamental Rule 56(j) authorises the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record. No mala fides have been urged in the present case. The only suggestion of the High Court is that the record discloses no material which would justify the action taken against the respondent. We are unable to agree. In our opinion, there was material which showed that the efficiency of the petitioner was slackening in the last two years of the period under review and it is, therefore, not possible for us to fault the conclusion of the department as being mala fide, perverse, arbitrary or unreasonable. The Division Bench seems to have thought that, since the adverse remarks mentioned in the earlier letter of 29th April, 1971 were not repeated in the subsequent letter, it should be taken that they had been given up subsequently or that the respondent had improved in the subsequent year. We do not think that this is a legitimate inference, for the report for 1971-72 only shows that the respondents' propensity to delay matters persisted despite the warning of the previous year. But, even if one assumes that the High Court was correct on this, the adverse remarks made against the respondent in relation to the period 1971-72, standing by themselves, can constitute sufficient material for the department to come to a conclusion in the matter. It is true that the earlier record of the respondent was good but if the record showed that the standard of work of the respondent had declined and was not satisfactory, that was certainly material enabling the department to come to a conclusion under Fundamental Rule 56(j). We are of opinion that the High Court erred in setting aside the order of compulsory retirement on the basis that there was no material at all on record justifying the action against the respondent.

6. For the reasons mentioned above, we allow this appeal and set aside the order of the Division Bench and restore the order of the Single Judge of the High Court as well as the order of compulsory retirement of the petitioner dated 29.10.71. We, however, make no order as to costs.