S. Chandrashekhar, J.@mdashThe petitioner has challenged the order of compulsory retirement dated 22.06.2000 passed by the respondent-Bank in exercise of power under Rule 74(b)(ii) of the Bihar Service Code whereby the petitioner has been ordered to retire from service with effect from 31.07.2000. Brief facts of the case are that, the petitioner was appointed on 11.01.1972 as Assistant in the respondent-Bank. His date of birth duly recorded in the service-book is 15.07.1948 and therefore, the petitioner was originally due to superannuate from service with effect from 15.07.2006. It is the case of the petitioner that no departmental enquiry was ever initiated during the entire service tenure of the petitioner, nor any criminal case was ever instituted against him. It appears that on 07.08.1999, the Establishment Committee of the respondent-Bank took a decision in pursuance of which order dated 22.06.2000 was passed compulsorily retiring the petitioner from service. The petitioner has challenged the said order by filing the present writ petition.
2. A counter-affidavit has been filed in which it has been admitted that the provisions of Bihar Service Code would apply. It has also been stated that the financial condition of the respondent-Bank was not good and therefore, the Establishment Committee of the respondent-Bank in its meeting dated 07.08.1999 unanimously resolved that all such employees of the Bank who have lost their utility and have become useless for the Bank and their future continuance in the service of the Bank is not considered desirable in the public interest, would be retired from service. It has further been stated that the petitioner was habitual absentee without information or authorised leave and as such functioning of the Bank was hampered. The petitioner was issued show-cause on 22.09.1999 directing him to reply within two days. Under these circumstances, the order of compulsory retirement dated 22.06.2000, has been contended to be just and legal by the respondent-Bank.
3. Heard the learned counsel for the parties and perused the documents on record.
4. Mrs. Neeta Krishna, learned counsel appearing for the petitioner, has contended that the petitioner who was working as Assistant in the respondent-Bank never faced any departmental enquiry as he never committed any misconduct. No criminal case was ever registered against the petitioner for any misappropriation of money of the Bank. The recommendation of the Establishment Committee was to remove those persons from the service of the Bank who have become useless and their continuance in the service was not in the interest of the Bank. It is not the decision of the Establishment Committee to retire the petitioner compulsorily from service. From the impugned order, it does not appear what was the material before the authority who has passed order dated 22.06.2000, based on which the petitioner has been compulsorily retired from service. Merely by recording in the impugned order that the employee has become useless and his continuance in the service of the Bank is not useful and it is in the public interest to retire the petitioner, an order of compulsory retirement cannot be passed. In the present case, even this has not been cited as a ground in the impugned order. There should have been materials before the authority who has passed order of compulsory retirement based on which he passed the order of compulsory retirement, which admittedly is not appearing from the impugned order. The plea taken in the counter-affidavit that the petitioner was habitual absentee was not the charge against the petitioner because no show-cause notice was issued to the petitioner except Annexure-A and that too, at the fag end when this impugned order was passed.
5. The learned counsel for the respondents has reiterated the stand taken in the counter-affidavit and relied on the decision of the Hon''ble Patna High Court passed in L.P.A. No. 889 of 2004, "Balmiki Singh Vs. The Bihar State Cooperative Land Development Bank & Ors."
6. From the materials on record, it is clear that the Respondent No. 2 passed order dated 22.06.2000 whereby the petitioner was compulsorily retired from service with effect from 31.07.2000 pursuant to a decision taken by the Establishment Committee of the respondent-Bank on 07.08.1999. it has been asserted by the respondent-Bank that the Establishment Committee had, in its meeting dated 07.08.1999, taken a decision to remove all such employees from the service of the Bank who had lost their utility and it was not in public interest to retain their services with the Bank. Though it has been stated in the impugned order dated 22.06.2000 that the power under Rule 74(b)(ii) has been exercised in the public interest, neither in the impugned order dated 22.06.2000 nor in the counter-affidavit filed on behalf of the respondent-Bank there is mention of any material or charge to establish that the petitioner was so inefficient or his conduct was such that his retention in service was not in the interest of the Bank. Rule 74(b)(ii) of the Jharkhand Service Code is extracted below,
Rule 74. (a) The State Government may require any Government servant who has completed twenty one years of duty and twenty -five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Government servant is so required to retire, no claim to any special compensation shall be entertained.
(b)(i) Notwithstanding anything contained in the preceding sub-rule a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice:--
Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government:--
Provided further that in case of the officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi) under the rule making authority of the Chief Justice, no such officer and servant under suspension shall retire from service except with the specific approval of the Chief Justice.
(ii) The appointing authority concerned may after giving a Government servant at least three month''s previous notice in writing, or an amount equal to three month''s pay and allowance in lieu of such notice, require him in public interest, to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
(iii) A government servant who retires voluntarily is required to retire in public interest under this rule on attaining the age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death-cam-retirement gratuity.
[Note 1--Compulsory retirement effected in pursuance of this rule does not amount to dismissal or removal from service within the meaning of Clause (2) of Article 311 of the Constitution and a Government servant so retired cannot claim, as a matter of right, that he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It shall also not be necessary, in such cases to follow the procedure laid down for the institution of departmental proceedings against the Government servant before retiring him compulsorily from Government service.]
Note 2--The grant, under rule 183, of leave extending beyond the date on which a Government Servant must compulsorily retire, or beyond the date upto which Government servant has been permitted to remain in service shall be treated as a sanction to an extension of service upto the date on which the leave expires.
7. The Hon''ble Supreme Court in
43. It is now a well-settled principle of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature. This rule was enunciated by Frankfurter, J. in Vitarelli Vs. Seaton wherein the learned Judge said:--
An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.....This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.
8. The principles relating to compulsory retirement has been discussed by the Hon''ble Supreme Court in
34. The following principles emerge from the above discussions:--
(i) An order of compulsory retirement is not a punishment It implies no stigma not 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 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 30 to 32 above.
9. Again, in
11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:--
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall also be taken into consideration.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.
10. A similar view has been taken by the Hon''ble Supreme Court in
11. Reliance of the learned counsel for the respondents on a judgment of the Hon''ble Patna High Court in ''Balmiki Singh'' (supra) is completely misplaced as in the said case, challenge to the order of compulsory retirement was made on the ground that the provisions of Rule 74(b)(ii) of the Bihar Service Code would not be applicable to the employees of the Bank whereas, in the present case, it is admitted position that the provisions of the Jharkhand Service Code would be applicable. In ''Balmiki Singh'' (supra) also, the Hon''ble Patna High Court has held that the provisions of Bihar Service Code would be applicable to the employees of the Bank.
12. Neither from the impugned order nor from the counter-affidavit filed on behalf of the respondent-Bank, it appears that the entire service record of the petitioner was considered and thereafter, the. Respondent No. 2 came to a conclusion that the petitioner had become dead wood and therefore, to maintain the efficiency in the service it was necessary to dispense with the service of the petitioner. It is also not appearing from the record of the case that the petitioner''s integrity was doubtful and therefore, to preserve purity in the administration, the order of compulsory retirement was passed. The impugned order dated 22.06.2000 suffers from the vice of arbitrariness. It is settled law that it is permissible for the courts to ascertain whether a valid material exists or otherwise, on which a subjective satisfaction of the administrative authority is based. [Reliance is placed on the judgment reported in
