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1981 Supreme(Ori) 161
IN THE HIGH COURT OF ORISSA
R.N. Misra, B.K. Behera, JJ.
SRI BAIKUNTHANATH DAS - APPELLANT
Versus
CHIEF DT. MEDICAL OFFICER AND OTHERS - RESPONDENT
Decided On : 22-12-1981
Compulsory retirement of a Government servant under Rule 71(a) of the Orissa Service Code must be based on the requisite opinion formed by the appropriate authority, considering the service record, including adverse entries in the Confidential Character Roll, and other relevant material. Mala fides or arbitrariness in the decision-making process can lead to the annulment of such orders.
Headnote:
COMPULSORY RETIREMENT - PUBLIC INTEREST - ORISSA SERVICE CODE, RULE 71(A) - REVIEW COMMITTEE - MALA FIDES - CONFIDENTIAL CHARACTER ROLL - ADVERSE ENTRIES - COMMUNICATION - APPROPRIATE AUTHORITY - OPINION FORMATION - ARBITRARINESS - COLLATERAL GROUNDS - VALIDITY OF ORDERS - REPRESENTATIONS FOR SERVICE BENEFITS - DISPOSAL WITHIN SIX MONTHS.
Fact of the Case:
Two petitioners, a Pharmacist and a Lady Health Visitor, challenged their compulsory retirement orders issued under Rule 71(a) of the Orissa Service Code, alleging mala fides, lack of requisite opinion formation, and arbitrariness. The petitioners claimed satisfactory service records and no adverse entries communicated to them.
Finding of the Court:
The Court held that the orders of compulsory retirement were valid and not subject to annulment. The Review Committee, consisting of senior officials, had formed the requisite opinion based on the petitioners' service records, including adverse remarks in their Confidential Character Rolls and other reports. The Court found no mala fides or arbitrariness in the decision-making process.
Issues: 1. Whether the orders of compulsory retirement were passed without forming the requisite opinion? 2. Whether the orders were passed arbitrarily or on collateral grounds? 3. Whether the adverse entries in the Confidential Character Rolls could be relied upon against the petitioners without communication? 4. Whether the appropriate authority had the power to pass the orders of compulsory retirement?
Ratio Decidendi: 1. The requisite opinion for compulsory retirement must be objective, bona fide, and based on relevant material. The appropriate authority, not the Court, takes the decision, but the Court examines if power has been abused. 2. Mala fides is a heavy burden to establish, and the Court found no evidence of it in the present case. The transfers and suspension of the petitioner Pharmacist were based on administrative grounds or official misconduct. 3. Adverse entries in the Confidential Character Roll can be considered by the appointing authority even if not communicated to the officer concerned. 4. The appropriate authority, as per Rule 71(a) of the Orissa Service Code, had the power to pass the orders of compulsory retirement.
Final Decision: The Court dismissed the writ petitions challenging the orders of compulsory retirement. However, it directed the State Government to dispose of the representations made by the petitioner Pharmacist regarding his service benefits within six months.
JUDGMENT :
B.K. Behera, J. - The petitioner in O.J.C. No. 412 of 1976 was serving as a Pharmacist when he was served with the order of compulsory retirement (Annexure-1) dated February 13, 1976 and the petitioner in O.J.C. No. 475 of 1976 had been serving as Lady Health Visitor when she was compulsorily retired from service by the order (Annexure-1) passed on the same day. Both these orders have been passed by the Governor in exercise of the powers conferred under the first Proviso to Sub-rule (a) of Rule 71 of the Orissa Service Code (hereinafter referred to as the "Code" which reads :
71. (a) Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, except a ministerial servant who was in Government service on the 31st March, 1939 and Class IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55th year of age in order to determine whether he/she should be allowed to remain in service upto the date of completion of the age of 58 years or retired on completing the age of 55 years in public interest:
Provided that a Government servant may retire from service any time after completing thirty years qualifying service or on attaining the age of fifty years, by giving a notice in writing to the appropriate authority at least three months before the date of which he wishes to retire or by giving the said notice to the said authority before such shorter period as Government may allow in any case. It shall be open to the appropriate authority to withhold permission to a Government servant who seeks to retire under this rule, if he is under suspension or if enquiries against him are in progress. The appropriate authority may also require any officer to retire in public interest any time after he has completed thirty years qualifying service or attained the age of fifty years by giving a notice in writing to the Government servant at least three months before the date on which he is required to retire of by giving three months pay and allowances in lieu of such notice.
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2. Common questions have been raised by the same learned Counsel for the petitioners in both the matters which have been heard together and this judgment will govern both the cases.
3. The petitioner Baikunthanath Das challenges the order of compulsory retirement on the ground of mala fides and his case is that the impugned order was not based on any material, but had been passed owing to grudge and ill-will towards him by the Chief District Medical Officers for which he had been transferred from place to place and had been placed under suspension at one stage without any justification and many representations made by him had gone" unheeded. Reliance has been placed by him in this regard on Annexures 2 to 9. He has also annexed a copy of letter No. 21423 dated October 1, 1975 addressed to all Heads of Departments (Annexure-10) regarding the principles and procedure to be followed while passing an order of retirement of a Government employee under Rule 71(1) of the Code. According to him, he had been working satisfactorily, sincerely and efficiently and no adverse entries in his Confidential Character Roll had been communicated to him. In the counter-affidavit, the grounds taken by the petitioner have been controverted and it has been stated that the order of compulsory retirement has been passed after the Review Committee decided that this was a fit case where action should be taken in exercise of the powers conferred under Rule 7 l(a) of the code. It has been averred therein that the remarks in the Confidential Character Roll in respect of the petitioner besides some other reports against him had been available for consideration by the Review Committee. The impugned order had not been passed owing to mala fides on the part of the authorities and transfers of the petitioner had be
