Judgment

B. P. JEEVAN REDDY, J.:- These appears raise the question-whether it is permissible to the government to order compulsory retirement of a government servant on the basis of material which includes uncommunicated adverse remarks. While the appellants (government servants compulsorily retired) rely upon the decisions of this court in Brij Mohan Singh Chopra, (1987) 2 SCC 188 and Baidyanath Mahapatra (1989) 4 SCC 664 in support of their contention that it is not permissible, the respondent-government relies upon the decision in M. E. Reddy, (1980) 1 SCR 736 to contend that it is permissible to the government to take into consideration uncommunicated adverse remarks also while taking a decision to retire a government servant compulsorily.

2. The appellants in both the appeals have been compulsorily retired by the government of Orissa in exercise of the power conferred upon it by the first proviso to Rule 71(a) of the Orissa Service Code. Since the relevant facts in both the appeals are similar, it would be sufficient if we set out the facts in Civil Appeal No. 869 of 1987.

3. The appellant, Sri Baikuntha Nath Das was appointed as a Pharmacist (then designated as Compounder) by the Civil Surgeon, Mayurbhanj on 15-3-1951. By an order dated 13-2-1976 the government of Orissa retired him compulsorily under the first proviso to sub-rule of Rule 71 of the Orissa Service Code. The order reads as follows:

"In exercise of the powers conferred under the first proviso to sub-rule (a) of Rule 71 of Orissa Service Code, the Government of Orissa is pleased to order the retirement of Sri Baikunthanath Das, Pharmacist now working under the Chief District Medical Officer, Mayurbhanj on the expiry of three months from the date of service of this order on him.

By order of the Governor."

4. The petitioner challenged the same in the High Court of Orissa by way of a writ petition, being 0.J.C. No. 412 of 1976. His case was that the order was based on no material and that it was the result of ill-will and malice the Chief District Medical Officer bore towards him. The petitioner was transferred by the said officer from place to place and was also placed under suspension at one stage. He submitted that his entire service has been spotless and that at no time were any adverse entries in his confidential character rolls communicated to him. In the counter-affidavit filed on behalf of the government, it was submitted that the decision to retire the petitioner compulsorily was taken by the Review Committee and not by the Chief Medical Officer. It was submitted that besides the remarks made in the confidential character rolls, other material was also taken into consideration by the Review Committee and that it arrived at its decision bona fide and in public interest which decision was accepted and approved by the government. The allegation of mala fides was denied.

5. The High Court looked into the proceedings of the Review Committee and the confidential character rolls of the petitioner and dismissed the writ petition on the following reasoning: An order of compulsory retirement after putting in the lirescribed qualifying period of service does not amount to punishment as has been repeatedly held by this court. The order in question was passed by the State Government and not by the Chief Medical Officer. It is true that the confidential character roll of the petitioner contained several remarks adverse to him which were, no doubt, not communicated to him, but the decision of this court in Union of India v. M.E. Reddy,(1980) 1 SCR 736 holds that uncommunicated adverse remarks can also be relied upon while passing an order of compulsory retirement. The said adverse remarks have been made by successive Civil Surgeons and not by the particular Chief District Medical Officer against whom the petitioner has alleged mala fides. It is unlikely that all the Chief District Medical Officers were prejudiced against the petitioner. In particular, the court observed, "t