1000 TIT BITS ON DISCIPLINE -128
506. Loss of original seniority in case reduction is for indefinite period
Where reduction is for an indefinite period, the employee loses his original seniority once for all. In case he gets promoted to that post according to his new lower seniority, in due course, he does not regain his original seniority. This position has been upheld by the Central Administrative Tribunal in Phool Chand v. Union of India, (1989) Lab. IC 94).
COMPULSORY RETIREMENT
507. Compulsory Retirement under F.R. 56() is not conditional on being substantive in that post
In Union of India v. K.R. Tahiliani, AIR 1980 SC 953, while interpreting provisions of F.R. 56(j), the Supreme Court had held that if a person was substantive in Group 'C' but was officiating in Group 'B', he could not be compulsorily retired unless he attained the age of 55 years because the provisions relating to Group 'B' are inapplicable to him. However, this judgment was over-ruled in a subsequent case, A.L. Ahuja v. Union of India, (1987)4 SCC 303, in which the Supreme Court held that condition of being substantive in the post could not be read in F.R. 56(j) as the rule did not provide for any such stipulation. Decision to the same effect was taken in N.C. Dalwadi v. State of Gujarat, (1987)4 SCC 261. Earlier, a decision on similar lines had been taken in S.C. Jain v. Union of India, (1985)4 SCC 465
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508. Sum up in ‘Baikuntha Nath Das case'
Recently, in Baikuntha Nath Das v. Chief District Medical Officer, 1992 AIR SCW 793, the Supreme Court surveyed the entire case law on the subject and summed up their conclusions in the following words, holding that the judicial interference is permissible only on the grounds mentioned in (iii) below:
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 an 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 the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstances by itself cannot be a basis for interference."
Where the High Court had set-aside the order of compulsory retirement made in 1989 on 5.5.1995 on the ground of non-application of mind but permitted reconsideration and the authorities passed fresh order retiring the employee from the original date, the Supreme Court rejected the contention that the order should take prospective effect [Mani Ram v. State of Haryana, C.A. No. 5446 of 2005 decided on 1.9.2005).
508. Sum up in ‘Baikuntha Nath Das case'
Recently, in Baikuntha Nath Das v. Chief District Medical Officer, 1992 AIR SCW 793, the Supreme Court surveyed the entire case law on the subject and summed up their conclusions in the following words, holding that the judicial interference is permissible only on the grounds mentioned in (iii) below:
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 an 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 the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstances by itself cannot be a basis for interference."
Where the High Court had set-aside the order of compulsory retirement made in 1989 on 5.5.1995 on the ground of non-application of mind but permitted reconsideration and the authorities passed fresh order retiring the employee from the original date, the Supreme Court rejected the contention that the order should take prospective effect [Mani Ram v. State of Haryana, C.A. No. 5446 of 2005 decided on 1.9.2005).
509. The employee remains entitled to full proportionate retirement benefits
Compulsory retirement as an administrative action is not a punishment. The employee remains entitled to all pensionary benefits (State of Orissa v. Ram Chandra Das, 1996 AIR SCW 2978]. The reason is that any cut in pensionary benefits shall amount to an “evil or penal consequences' and shall convert it into a penal one.
510. Situations when compulsory retirement shall amount to an order of punishment
The normal principle is that an order of Compulsory Retirement on completion of 25 years of service made in the public interest and without an element of punishment will not amount to an order of dismissal or removal [State of U.P. v. Shyam Lal Sharma, AIR 1971 SC 2151]. However, there are number of situations in which an order of Compulsory Retirement, ostensibly made as an administrative action, shall amount to an order of punishment, attracting provisions of Art. 311(2) of the Constitution. These situations are –
i. Where there is no rule fixing the age of compulsory retirement before reaching the age of superannuation [Murari Mohan Deb v. Secy., Government of India, AIR 1985 SC 931, para 11];
ii. Though the rule is there prescribing an age of compulsory retirement, but the employee is retired before the age prescribed therein (ibid.);
iii. If the order of compulsory retirement contains a stigma, any element of charge or imputation or any implication of misbehaviour or incapacity against the officer, then the order is one of punishment [State of U.P. v. Shyam Lal Sharma, AIR 1971 SC 2151]. A case to the point is State of U.P. v. Madan Mohan Nagar, AIR 1967 SC 1260, where the Compulsory Retirement was held to be penal in nature because the order contained the words “as he had outlived his utility”. However, the mere fact that the officer has been compulsory retired from service does not by itself constitute a stigma (Murari Mohan Deb case, supra].
iv. The order will be indicative of punishment or penalty if it involves loss of benefits already earned i.e., where he is denied full pension or other retiral benefits in respect of the period of service rendered by him [Shyam Lal Sharma case, supra; Mahesh Chand Jindal v. State of U.P., Lab. IC (1983) All. 1098). But, a mere loss of future prospects of earning full pension shall not be a penal consequence.
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