BAIKUNTHA NATH DAS & Anr. v. CHIEF DISTT._MEDICAL OFFICER, BARIPADA & Anr.

It was contended ·by the appellant that since an order of compulsory retirement bad adverse effects upon the career and prospects of the government servant, the ortler should be passed in accordance with prin· ciples of natural justice; that before passing the order, a notice to show cause against the order proposed should be given to the government F servant; that the order of compulsory retirement was based upon uncom· municated adverse remarks and that the appellant was also not afforded an opportunity to make a representation against the same; and that as per the new concept of Article 14 adumbrated in Maneka Gandhi case, AIR 1978 SC 579, any and every arbitrary action was open to judicial scrutiny. G Dismissing the appeals, this Court, HELD : 1.01. What is normally required to be communicated is adverlie remarks- not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and H 838 SUPREME COURT REPORTS (19921 I S.C.R. A comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a Rule corresponding to it. [8558-C]

1.02. The adverse remarks ought to be communicated in the normal course, as required by the Rules/ orders in that behalf. Any repre· sentations made against them would and should also be dealt with in the B normal course, with reasonable promptitude. [854D-E]

1.0J. The action under F.R.56 (j) (or the Rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R.56li) need not be held back. [854E·F) c

1.04. There is no reason to presume that the Revieu· Committee or D the government, if it chooses to take into consideration such uncommuni cated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any repre· sentation made by the government servant is there, it shall also be taken into consideration. [854F·G] E

1.05. Not only the Re,·iew Committee is generally composed of high and responsible o!Ucers, the power is vested in government alone and not in a minor ollicial. It is unlikely that adverse remarks over a number of' · years remain uncommunicated and yet they are made .the primary basis of action. Such an unlikely situation, if indeed present, niay be indicative of malice in law. [854G-H]

2.01. An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. [855D]

2.02. The order has lo be passed by the government on forming the opinion that it is in the public interest to retire a government sen·ant compulsorily. The order is passed on the su~jective satisfaction of the government. [855D-E) F G

2.03. Principles of natural justice have no place in the context of an H order or compulsory retirement. This does not mean that judicial ~crutiny .. BAIKUNTHA NATH 1·. MEDICAL OFFICER 839 is excluded altogether. While the High Court or this Court would not A examine the matter as an appellate court, they may interfere if they are satislied that the order is passed (a) ma/a fide or (b) that it is based on no evidence or (c) that it is arbitrao in the sense that no reasonable person would form the requisite opinion on the given mat.rial; in short, if it is found to be a perverse order. l855E·F) B

2.04. The remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well-known constraints, the remedy is an effective check against ma/a fide, perverse or arbitrary action. [8SSAJ

2.05. An order of compulsory retirement is not liable to be quashed C by a court merely on the showing that while passing it, uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. (8568]

2.ll6. The goverriment. (or the Review Committee, as the case may D be) shall have to consider the entire record of service before taking a decision in the matter, of ~ourse, attaching more importance to the record of and performance during the later years. The record lo 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 E their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. [855G-856A)

2.07. The nature of the function is not quasi-judicial in nature and because the action has to be taken on the sub, jective satisfaction of the Government, there is no room for importing any facet of' natural justice particularly because an order of compulsory retirement is not a punish· ment nor does it involve any stigma. [H56E] Union of India v. Al.£.Reddy, [1980] 1 SCR 736; Union of India v. J.N.Sin/Ja, (1971] 1 SCR 791, Applied. F G S/Jram Lal v. State of. Vilar Prades/J,