Holding

Principles of natural justice do not apply to compulsory retirement; uncommunicated adverse remarks may be considered, and the order need not await the disposal of representations, being subject only to judicial review for mala‑fide, perverse or unsupported decisions.

Summary

Baikuntha Nath Das, a pharmacist appointed in 1951, was compulsorily retired in 1976 under the first proviso to Rule 71(a) of the Orissa Service Code, which corresponds to Fundamental Rule 56(j). He challenged the order, alleging that adverse remarks in his confidential character rolls were never communicated, that he was denied a chance to show cause, and that the retirement was arbitrary and mala‑fide. The Orissa High Court dismissed the writ, holding that compulsory retirement is not a punishment, that uncommunicated adverse remarks may be relied upon, and that the decision of the Review Committee was bona‑fide. On appeal, the Supreme Court affirmed that principles of natural justice do not apply to compulsory retirement, that the government may act on uncommunicated adverse remarks, and that action under Rule 56(j) need not await the disposal of representations. The Court held that such orders can be interfered with only if they are mala‑fide, perverse, or unsupported by evidence, and dismissed the appeals.

Issues considered

Whether principles of natural justice apply to orders of compulsory retirement under Rule 56(j)/Rule 71(a).
Whether uncommunicated adverse remarks in confidential character rolls can be considered in deciding compulsory retirement.
Whether the action under Rule 56(j) must be delayed until the disposal of representations made by the servant.
Whether an order of compulsory retirement can be quashed on the ground of arbitrariness or mala‑fide.

Legislation cited

Constitution of Indias. Article 14, s. Article 226, s. Article 310
Fundamental Ruless. Rule 56(j)
Orissa Service Codes. Rule 71(a)

Subjects

compulsory retirementnatural justiceuncommunicated adverse remarksFundamental Rule 56(j)Rule 71(a) Orissa Service Codesubjective satisfactionpublic interestadministrative lawjudicial review

Judgment

A BAIKUNTHA NATH DAS AND ANR.
v.
CHIEF DISTT._MEDICAL OFFICER, BARIPADA AND ANR.

FEBRUARY 19, 1992

B [LAUT MOHAN SHARMA, V. RAMASWAMI AND
B.P. JEEVAN REDDY, JJ.)

Civil Services-C. C.R.-Adverse remarks-Communication and non-
communication--Effect of-Action under Rule 56(!) of the Fundamental
C Rules (Rule 71 of Orissa Service Code) whether to be delayed till the disposal
of representation on adverse remarks.

Civil Services--Oris:ia Service Code, Rule 71 (Co"esponding to rule 56·
(!) of the Fundamental Rules)-Compulsory retirement-Whether to be
delayed till the disposal of representation on adverse remarks.
D
Civil Services--Orissa Service Code-i?.ule 71-Compulsory retire-
ment-Principles of natural justice whether applicable-Whether pennissible
on uncommunicated adverse remarks-courts' inteiference-Scope of
. '
Constitution of India, 1950--Article 226-court's jurisdiction to inter-
E . Jere with order of compulsory retirement-Scope of-Principles of natural
justice-Applicability of-Compulsory retirement whether pennissible on un-
communicated adverse remarks.

C.A.No. 869 of 1987

F On 15.3.1951, the appellant was appointed as a Pharmacist, which
was then designated as compounder. On 13.2.1976 he was retired compul-
sorily by the Government under the first proviso to Snb-rule of Rnle 71 of
the Orissa Service Code.

G The appellant challenged the order by way of a writ petition in the
High Court contending that the grder was the result of ill-will and malice
the Chief District Medical Officer bore towards him; that his entire service
was spot-less and that at llo time were any adverse entries in his confiden-
tial character rolls communicated to him.

H The respondent- Government submitted that the decision to retire
836
BAIKUNIBA NATH v. MEDICAL OFFlCER 837

the petitioner compulsorily was taken by the Review Committee and not A
by the Chief Medical Officer; that besides the remarks made in the
confidential character rolls, other material was also taken into considera·
lion by the Review Committee and that it arrived at its decision bonafide
and in public interest which decision was accepted and approved by the
Government. The allegation of malafides was denied.
B
The High Court looked into the proceedings of the Review Commit·
tee and the confidential character rolls of the appellant and dismissed the
writ petition on the reasoning, that an. order of compulsory· retirement
after putting in the prescribed qualifying period of service did not amount
to punishment; that the order was passed by the. state Government and C
not by the Chief Medical Officer and that the petitioner has failed to
.establish that remarks in the confidential character rolls were not duly
and properly recorded. It held that the adverse remarks though not
communicated, can yet be relied upon. Accordingly it held that the
decision to retire was taken by the Review Committee on proper material
and there were no grounds to interfere "ith its decision. D

The present appeal by special lea>< was filed by the government
servant against the decision of the High Court on the. questio·n, whether
acting upon undisclosed material was a ground for quashing the order of
compulsory retirement C.A.No. 870 of 1987 was also filed on similar facts. E

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
c 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)

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
F 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
G
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)

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 F
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. G
S/Jram Lal v. State of.Vilar Prades/J, [1955] 1 SCR 26; Shivacharana
v. State 1>( .llrwrc. AIR (1965) SC 280; State of Orissa v. Dr. Binapani Dcri,
[1967] 2 SCR 625: A.K.Kraipak v. Union of India, AIR 1970 SC 150;
R.L.Butail v. U11io11 of India, [197112 SCR 791; Dr. N.V. Puttabhaua v.State
of /l..~rsore, AIR 1972 SC 2185; Gian Singh Mann v. Punjab and Har,·anu H
840 SUPREME COURT REPORTS [1992] 1 S.C.R.

A High Court, AIR 1980 SC 1894; O.N.G.C. v, Iskandar Ali, Brij Bihari Lal
Agarwal v. High Court of Madhya Pradesh, [1981) 2 SCR 29; Baldev Raj
Chaddha v. Union of India, [1981) 1 SCR 430; J.D. Srivastava v. State of
Madhya Pradesh, [1984) 2. SCR 466; Brij Mohan Singh Chopra v. State of
Punjab, [1987) 2 SCC 1988; Gurdyal Singh Fiji v. State of Punjab, [1979) 3
B SCR 518; Amarkant Chaudhary v. State of Bihar, [1984] 2 SCR 299;
Baidyanath M~hapatra v. State of Orissa, [1989) 4 SCC 664; Barium Chemi-
cals v. Company Law Board, AIR (1967) SC 295; Vallukunnel v. Reserve
Bank of India, AIR 1962 SC 1371; Maneka Gandhi's case, AIR 1978 SC 579,
Referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 869of1987.
c
From the Judgment and Order dated 22.12.1981 of the Orissa High
Court in Original Judicature Case No. 412 of 1976.
WITH
CA No. 870 of 1987
D
R.K. Garg and A.K. Panda for the Appellants.

C.S. Srinivasa Rao for the Respondent.

The Judgment of the Court was delivered by
E
B.P. JEEVAN REDDY, J. 1. These appeals 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 uncom-
municated adverse remarks. While the appellants (government servants
compulsorily retired) rely upon the decisions of this court in Brij Mohan
F Singh Chopra, [1987] 2 S.C.C. 1988 and Baidyanath Mahapatra, [1989] 4
S.C.C. 664,. in support of their contention that it is not permissible, the
respondent- government relies upon the decision in ME.Reddy, [1980] 1
S.C.R. 736 to contend that it is permissible to the government to take into
consideration uncommunicated adverse remarks also while taking a
G 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
H set out the facts in Civil Appeal No. 869 of 1987.
BAIKUNTHA NATH v. MEDICAL OFFlCER [JEEVAN REDDY, J.] 841

3. The appellant, Sri Baikuntha Nath Das was appointed as a 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 B
sub-rule (a) of rule 71 of Orissa Sefvice Code, the Government
of Orissa is pleased to order the retirement of Sri Baikun-
thanath 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. c
By order of the Governor."

4. The petitioner challenged the same in the High Court of Orissa
by way of a Writ petition, being O.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 D
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 spot-less and that at no time were any adverse entries in
his confidential character rolls communicated to him. In the counter-af-
fidavit filed on behalf of the government, it was submitted that the decision
E
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 deision bonafide and in public interest which decision was accepted and F
approved by the government. The allegation of malafides was denied.

5. The High Court looked into the proceedings of the Review
Committee and the confidential character rolls of the petitioner and dis-
missed the writ petition on the following reasoning: An order of compul- G
sory retirement after putting in the prescribed 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 H
842 SUPREME COURT REPORTS (1992) 1 S.C.R.

A v. M.E.Reddy, [1980) 1 S.C.R. 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 malafides. It is unlikely that all the Chief
District Medical Officers were prejudiced against the petitioner. In par-
B ticular, the court observed, 'the materials placed before us do not justify a.
conclusion that the remarks in the confidential character rolls had not duly
and properly been recorded." The decision to retire has been taken by the
Review Committee on proper material and there are no grounds to inter-
fere with its decision, it opined.
c 6. The adverse remarks made against the petitioner - in the words
of the High Court - are to the following effect:

"..... most insincere, irregular in habits and negligent and be-
sides being a person of doubtful integrity, he had been quar-
D relsome with his colleagues and superior officers and had been
creating problems for the administration."

7. Rule 71 (a) alongwith the first proviso appended thereto ~-
which alone is relevant for our purpose - reads thus:
E "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
F 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 senice upto th~ date of the completion of the age of
58 years or retired on completing the age of 55 years in public
interest:
G
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
H on which he wishes to retire or by giving the said notice to the
BAJKUNTI IA NATH"· MEDICAL OFFICER [JEEV AN REDDY, J.] 843

said authority before such shorter period as Government may A
allow in any case. It shall be open to the appropriate authority
lo withhold permission to a Government servant who seeks to
retire under this rule, if he is und1.:r suspension or if enquiries
against him arc in progress. The· appropriate authority may
also require any officer lo retire in public interest any time after
B
he has completed thirty years qualifying service or attained the
age of fifty years, by giving a notice in writing to the Govern-
ment servant al least three months before the date on which

...' he is required to retire or hy giving three months pay and
allo\vanccs in lieu of such notice. xx xx xx"
c
8. It is evident that the latter half of the proviso which empowers
the government to retire a government servant in public interest after he
completes 30 years of qualifying service or after attaining the age of 50
years is in pari materia with the Fundamental Rule 56 (j).

9. The Government of Orissa had issued certain instructions in this D
behalf. According to these instructions, the Rcvic\v Committee, if it is of
the opinion that a particular government servant should he retired compul-
sorily, must make a proposal recording its full reasons lherefor. The
adminislrative department controlling the services to which the particular
government servant belongs, will then process the proposal and put it up E
to the government for final orders.

HJ. In Shyam Lal v. State of Uttar Pradesh, [1955) 1 S.C.R. 26, a

, Constitution Bench of this court held that an order of compulsory retire-
ment is not a punishment nor is there any stigma atlachcd to it. It said:

"There is nn such element of charge or imputation in the case
of compul~ory retir~ment. Ttc l\VO requirements for compul-
sory retirement arc that the officer has completed twenty five
F

years' service and that it is in the ·public interest to dispense
"1th his further services. It i' I rue that this power of compul-
sory retirement may be use<l when the authority exercising this G
power cannot substantiate the misconduct which may be the
real cause for taking the action but what is important to note
is that the directions in the last sentence of Note 1 to Article
465-A make it abundantly clear that an imputation or charge
is not in terms made a condition for the exercise of the power. H
844 SUPREME COURT REPORTS (1992( 1 S.C.R.

A In other words, a compulsory retirement has no stigma or
implication of misbehaviour or incapacity."

11. In Shivacharana v. State of Mysore, A.LR. 1965 S.C. 280, anot)lcr
Constitution Bench reaffirmed the said principle and held that "Whether
or not the petitioner's retirement was in the public interest, is a matter for
B the State Government lo consider and as lo the plea that the order is
arbitrary and illegal, it is impossihle lo hold on the material placed by the
petitioner hefore us lhal the said order suffers from the vice of malafides."

12. As far back as 1970, a Division Bench of this court comprising
c J.C. Shah and K.S.Hegdc, JJ. held in Union of India v. J.N.Sinha, 11971(
1 S.C.R. 791, that an order of compulsory retirement made under F.R. 56
Q) does not involve any civil consequences.. that the employee retired
thereunder docs not lose any of the rights acquired by him before retire-
ment and that the said rule is not inlcndc<l for taking any penal action

D against the government servant. It \Vas pointed out thal the said rule
embodies one of the facets of the pleasure dnctrine embodied in Article
310 of the Constitution and that the rule holds the balance between the
rights of the individual Government servant and the interest of the public. ~ ~
The rule is intended it was explained. to enable the Government to energise
its machinery and to make it efficient by compulsory retiring those who in
E its opinion should not be there in public interest. It was also held that
rules of natural justicC arc not attracted in such a case. If the appropriate
authority forms the rcquisilL' opinion bonafide, it v.,'a~ held, its opinion
cannot be challenged hcforc l he cnurts though it is open lo an aggrieved
party to contend that the requisite opinion has not been formed or that it
F is based on collateral grounds or that it is an arbitrary decision. ll is
shi~nificant _to notice that this decision was rendcrc(d aftl:J'r the decisions of _- -
t 1s court m State of Orissa v. Dr. Binapani Devi, 1%7 2 S.C.R. 625 and "'lllJll
A.K.Kraipak v. Union of India, A.LR. 1970 S.C. 150. Indeed, the said
<lcci~ions were relied upon to contend that even in such a case the prin-
ciples of natur::tl justice required an opportunity to be given to the govcrn-
G n1ent servant to sho\v cause against the proposed action. The contention,
was not accepted as stated above. The principh:s enunciated in the
decision have been accepted and followed in many a later decision. There
has never been a dissent- not until 19~7.

H B. In R.L.811tia/ v. Union of lridiu. relied upon by the appellant's
BAIKUNTHA NATH 1·. MEDICAL OFF!< TR /.JIT.VAN REDDY, J.] 845

counsel, the Constitution Bench considered a case where the government A
servant was denied the promotion and later retired compulsorily under
F.R. 56G) on the basis of adverse entries in his confidential records. The
appellant, an electrical engineer, entered the service of Simla Electricity
Board in 1934. In 1940, he was transferred to Central Electricity Commis-
sion - later designated as Central Water and Power Commission (Power
Wing). In 1955 he was promoted to the post of Director wherein he was
B
confirmed in the year 1960. In his confidential reports relating to the years
1964 and 1965 1 certain adverse remarks were made. They \Vere communi-
cated to him. He made a representation asking for specific instances on
the basis of which ihe said adverse remarks were made. These repre-
sentations were rejected. Mcan\vhile, a vacancy arose in the higher post. C
The appellant was overlooked both in the year 1964 as well as in 1965 by
the Departmental Promotion Committee and the U.P.S.C. On August 15,
J967, on his completing 55 years of age, he was compulsorily retired under
F.R. 56G). Thereupon he filed three writ petitions in the High Court
challenging the said adverse entries as also the order of compulsory retire-
D
ment. The writ petitions were dismissed whereupon the matters were
brought to this court on the basis of a certificate. The Constitution Bench
enunciated the following propositions:

I. The rules framed by the Central Water and Power Commission
on the subject of maintenance of confidential reports show that a confiden- E
tial report is intended to be a general assessment of \\'ork performed hy
the government servant and that the said reports are maintained to serve
as a data of operative merit when question of promotion, confirmation etc.

, arose. Ordinarily, they are not to contain specific instances except where
a specific inS:tance has led to a censure or a warning. In such situation
alone, a reasonable opportunity has to be afforded to the government
servant to present his case. No opportunity need be given before the
entries are made. Maki~g of an adverse entry does not amount to inflicting
F

a penalty.

2. When the petitioner was overlooked for promotion his repre- G
sentations against the adverse remarks were still pending. But inasmuch
as the said representations were rejected later there was no occasion for
reviewing the decision not to promote the appellant. Withholding a
promotion is nt1t a penalty under the Central Senicc Rules. Hence, no
enquiry was rc·quircd lO be held before deciding not to promote the H
846 SUl'Rl·.MF COURT REPORTS [1992) 1 S.C.R.

A appellant-more so, when the promotion was on the basis of selection and
not on the basis of <..cniority alone.

3. So far as the order of compulsory retirement was concerned, it
was based upon a consideration of his entire service record including his
confidential reports. The adverse remarks in such reports, were communi-
B cated from time to time and the representations made by the appellant
were 'fejected. It is only thereafter that the decision to retire him compul-
nrily was taken and, therefore, there was no ground to interfere with the
said order.

14. It is evident that in this case, the question arising for our
c consideration viz., whether uncommunicatcd adverse remarks can be taken
into consideration alongwith other material for compulsorily retiring a
government servant did not arise for consideration. That question arose
directly in U11io11 of India v. ME.Redd)'.

D 15. The respondent, M.E.Reddy belonged to Indian Police Services.
He was retired compulsorily under Rule 16 (3) of All India Service
(Death-cum-Retirement Rules) 1958-corrcsponding lo F.R. 56 (j). The
contention of the respondent was that the order was passed on non-existing '
material inasmuch as al no time \Vere any adverse remarks communicated
to him. His contention was that had there been any adverse entries they
E ought to have been communicated to him under the rules. The said
contention was dealt with in the following words:

"....... This argument, in our opinion, appears to be based on a
serious misconception. In the first place, under the various
F rules on the subject it is not every adverse entry or remarks
that has to be communicated to the officer concerned. The
superior officer may make certain remarks while assessing the
work and conduct of the subordinate officer based·· on his
personal supervision or contact. Some of these remarks may
be purc!Y innocuous, or may be connected with general reputa-
G tion of honesty or integrity that a particular officer enjoys. It
will indeed be difficult if not impossible to prove by positive
evidence that u particular officer is dishonest but those who
have had the opportunity to watch the performance of the said
offic~r from close quarters are in a position lo know the nature
H and character not only of his performance but also of the
BAIKUNTHA NATI! 1·. MEDICAi. OFFICER iJEEVAN REDDY, J.] 847

reputation that he enjoys." A
16. The Learned J udgcs referred lo the decisions in R.L. Butai/, J.N.
•
Sinha and several other decisions of this court and held that the confiden-
tial reports, even though not communicated to the officer concerned. can
certainly be considered by the appointing authority while passing the order
of compulsory retirement. In this connection, they relied upon the prin- B
ciple in J.N. Sinha that principles of natural justices arc not attracted in
the case of compulsory retirement since it is neither.a punishment nor does
it involve any civil consequences.

17. The principle of the above decision was followed' in Dr. NV.Put- C
tabhatta v. State of Mrsore, A.LR. 1972 S.C. 2185, a decision rendered by
A.N.Grover and G.K.Mitter, JJ. Indeed, the contention of the appellant
in this case \Vas that since an order of co1npulsory retirement has adverse
effects upon the career and prospects of the government servant, the order
must be passed in accordance with principles of natural justice. It \Vas
contended that before passing the order, a notice to shov,1 cause against D
the order proposed must be given to the government servant. Reliance
\vas placed upon the decisions in Binapani Dei·i and Kraipak. This contcn·
lion \Vas negatived follo\ving the decision in J.N.Sinha. It \\'as al.so pointed
out, applying the principles of Slu"i·acharana that an order of compulsory
retirement is not a punishment nor does it involve any stigma or implication E
or misbehaviour. Another contention urged in this case was that the ordt:r
of compulsory retirement \Vas based upon uncommunicatc<l adverse
remarks and that the appellant was also not afforded an opportunity ·to
make a representation against the same. At the relevant time, no appeal
lay against the orders passed upon the representation. Dealing with the
said contention, the court observed: F
"as the confidential reports rules stood at the relevant time, the
appellant could not have appealed against the adverse remarks
and if the opinion of the government to retire him compulsorily
was based primarily on the said report, he could only challenge G
the order if he was in a position to shO\V that the remarks were
arbitrary and malafide."

18. Yet another contention which is relevant to the present case is this:
the retirement of the appellant therein was ordered under Rule 235 of
Mysore Civil Service Rules. The language of the said rule corresponded to H
848 SUPREME COURT REPORTS [1992] I S.C.R.

A F.R. 56G) hut it did not contain the word "absolute" as is found in F.R. 56 G).
An argument was sought lo he built up on the said difference in language but
the same was rejected holding that even in the absence of the word ''absolute', ..
the position remains the same. We arc referring to the said aspect inasmuch
as the proviso to Rule 71 (a) of the Orissa Scn;ce Code. concerned in the
appeals before us, also docs not contain the word "absolute".
B
19. In (A.LR. 1980 S.C. 1894) Gian Si11gh Mann v. Pu11jab and
Haryana High l~outt, a Bench consist.ing of Krishna Iyer and Pathak, .JJ.
rcit~ratcd the principle that an order or compulsory rctircmr.:nl does not
amount lo punishment and that no stigma or implication of misbehaviour ---l. I
C is intended or attached to such an order.

20. In 0.N.0.C:. v. lska11dar Ali. a probationer \Vas tcrn1inate<l on
the hasis of <.1dvcrsc rcn1arks made in his assessment roll. A Bench
comprising three learned Judges (Fazal Ali. A.C.Gupta and Kailasam, J.J.)
held that thi..: order of tcrn1ination in that case \Va~ an nrdl..'.r of termination
D sin1plicitcr \Vithout involving any stig.ma or any civil consequences." Since
the n:sponJcnt was a probationer, he had no righl to the post. The
n.:1narks in his assessment roll disclosed that the respondent \Va~ not found "(
suitable for hcing retained in service and even though some sort of.enquiry
v..ras commenced, it \Vas not proceeded with. The appointing authority
E considered it expedient to terminate the service of the n.:spondcnt in the
circumstances and such an order \Vas beyond challenge on the ground of
violation of Article 311.

21. This court has taken the vic\V in certain cases that while taking
a d~cision to retire a governn1cnt servant under Rule 56 (j), more impor-
F tance should be attached to the confidential records of the later years and
that much importance should not be attach_ed to the record relating to
earlier years or to the early years of service. In Bnj' Bihan· Lal Aganval v.
High Court of Madhra Pradesh, [1981 [ 2 S.C.R 29, upon which strong
reliance is placed by the appellant's counsel - a Bench comprising Pathak
and Chinappa Reddy, J.l. observed thu5:
G
"...... What we would like to add is that when considering the
question of compulsory retirement, while it is no doubt
desirable to make an overall assessment of the Government
servant's record~ more than ordinary value should be attached
H to the confidential reports pertaining to the years immediately
BAIKUNTHA NATH v. MEDICAL OFFlCER [JEEVAN REDDY, J.j 849

preceding such consideration. It is possible that a Government A
servant may possess a somewhat erratic record in the early
years of service, but with the passage of time he may have so
greatly improved that it would be of advantage to continue him
in service up to the statutory age of superannuation. Whatever
value the confidential reports of earlier years may possess,
those pertaining to the later years are not only of direct
B
relevance but also of utmost importance."

22. We may mention that the order of compulsory retirement in the
above case is dated 28th September, 1979. The High Court took into
account the confidential reports relating to the period prior to 1966 which C
were also not communicated to the concerned officer. However,' the
decision is based not upon the non-communication of adverse remarks but
on the ground that they were too far in the past. It was observed that
reliance on such record has the effect of denying an opportunity of im-
provement to the officer concerned The decision in Ba/dev Raj Chaddha D
v. Union of India, [1981} 1 S.C.R. 430, is to the same effect. Inl.D.Srivas-
tava v. State of Madhya Pradesh, [1984] 2 S.C.R. 466, it was held by a
- • ·, Bench of three learned Judges that adverse reports prior to the promotion
of the officer cannot reasonably form a basis for forming an opinion to
retire him. The reports relied upon for retiring the appellant were more
than 20 years old and there was no other material upon which the said E
decision could be based. It was held that reliance on such stale entries
cannot be placed for retiring a person compulsorily, particularly when the
officer concerned was promoted subsequent to such entries.

23. We now come to the decision in Brij Mohan Singh Chopra v. F
State of Punjab, telied upon by the learned cousel for the petitioner. In
this case, there were no adverse entries in the confidential records of the
appellant for a period of five vr.ars prior to the impugned order. Within
five years, there were two adverse entries. In neither of them, however,
was his integrity doubted. These adverse remarks were not communicated
to him: The Bench consisting of E.S.Venkataramiah and K.N.Singh JJ. G
quashed it on two grounds viz.,

1. It would not be reasonable and just to consider adverse entries of
remote past and to ignore good entries of recent past. ·If entries for a period
of more than 10 years past are taken into acw= it would be an act of H
850 SUPREME COURT REPORTS [1992] 1 S.C.R.

A digging out past to get some material to make an order against the employee.

2. In Gurdyal Singh Fiji v. State of Punjab, (1979] 3 S.C.R. 518 and
Amarkant Chaudhary v. State of Bihar, (1984] 2 S.C.R. 299, it was held that
unless an adverse report is communicated and representation, if any, made
by the employee is considered, it may not be acted upon to deny the
B promotion. The same consideration applies where the adverse entries arc
taken into account in retiring an employee pre-maturely from service.
KN.Singh, J. speaking for the Bench observed: "it would be unjust and
unfair and contrary to principles of natural justice to retire pre-maturely a
government employee on the basis of adverse entries which are either not ~. ...,_
C communicated to him or if communicated, representations made against
those entries are not considered and disposed of'.

This is the first case in which the principles of natural 'justice were
imported in the case of compulsory retirement even though it was held
D expressly in J.N.Sinha that the said principles are not attracted. This view
was reiterated by K.N.Singh, J. again in (1989] 4 S.C.C. 664 Baidyanath
Mahapatra v. State of Orissa, (Bench comprising of KN.Singh and
M.H.Kania, JJ.). In this case, the Review Committee took into account
the entire service record of the employee including the adverse remarks
relating to the year 1969 to 1982 (barring certain intervening years for
E which no adverse remarks were made). The employee had joined the
Orissa Government service as an Assistant Engineer in 1955. In 1961 he
was promoted to the post of Executive Engineer and in 1976 to the post
of Superintending Engineer. In 1979 he was allowed to cross the efficiency
bar with effect from 1.1.1979. He was compulsorily retired by an order
F dated 10.11.1983. The Bench held in the first instance that the adverse
entries for the period prior to his promotion as Superintending Engineer
cannot be talicn into account. It was held that if the officer was promoted
--
.-~

to a higher post, and that too a selection post, notwithstanding such adverse
entries, it must be presumed that the said entries lost their singificance and
cannot be revived to retire the officer compulsorily. Regarding the adverse
G entries for the subsequent years and in particular relating to the years
1981-82 and 1982-83 it was found that though the said adverse remarks
were communicated, the period prescribed for making a representation
had not expired. The Bench observed: ·

H "........ These facts make it amply clear that the appellant's
BA!KUNIBA NATH 1·. MEDICAL OFFICER [JEEV;\N RFDDY. J.[ 851

representation against the aforesaid adverse remarks for the A
years 1981-82 and 1982-83 was pending and the same had not
been considered or disposed of on the date of impugned order
was issued. It is settled view that it is not permissible to
prematurely retire a government servant on the basis of adverse
entries, representations against \vhich are not considered and
disposed of. See Brij Mohan Singh Chopra v. State of Punjab."
B

24. On the above basis, it was held that the Review Committee ought
to have waited till the expiry of the period prescribed for making rcpre-
-,.. sentation against the said remarks and if any representation was made it
should have been considered and disposed of before they could be taken C
into consideration for forming the requisite opinion. In other \Vords, it \Vas
held that it was not open to the Review Committee and the government to
rely upon the said adverse entries relating to the years 1981-82 and 1982-83,
in the circumstances. Unfortunately, the decision in J.N.Sinlza was not
brought to the notice of the learned Judges when deciding the above two
cases.
D

25. The basis of the decisions in Brij Mohan Singh Chopra and
Baidyanath Mahapatra, it appears, is that while passing an order of com·
pulsory retirement, the authority must act consistent with the principles of
natural justice. It is said so expressly in Brij Mohan Singh Chopra. This E
premise, if carried to its logical end, would· also mean affording an oppor-
tunity to the concerned government servant to show cause against the
action proposed and all that it involves. It is true that these decisions do
not go to that extent but limit their holding to only one facet of the rule
viz., 'acting upon undisclosed material to the prejudice of a man is a F

- violation of the principle of natural justice.' This holding is in direct
conflict with the decision in J.N.Sinha which excludes application of
principles of natural justice. As pointed out above, J.N.Sinha was decided
after, and expressly refers to the decisions in, Binapani Devi and Kraipak
and yet holds that principles of natural justic~ are not attracted in a case
of compulsory retirement. The question is which of the two views is the G
correct one. While answering this question, it is necessary to keep the
following factors in mind: (a) Compulsory retirment provided by F.R. 56
Gl or other corresponding rules, is not a punishment. It does not involve
any stigma nor any implication of misbehaviour or incapacity. Three
Constitution Benches have said so vide Shyam Lal Shivacharana and R.L. H
852 SUPREME COURT REPORTS [1992] 1 S.C.R.

A Blltail. .(b) F.R. 56G) as also the first proviso to Ruic 71(a) of the Orissa
Service Code, empower the government to order compulsory retirement of
a government servant if in their "opinion", it is in the public interest so to
do. This means that the action has lo be taken on the subjective satistfac-
tion of the government. In R.L.Burail, the Constitution Bench observed:

B "...... In Union of India v. Col J.N. Sinha this Court stated that
F.R. 56 GJ in express terms confers on the appropriate authority
an absolute right to retire a Government servant on his attaining
the age of 55 years if such authority is of the opinion that it is
in public interest so to do. The decision further states:
c
"If that authority, bona fide forms that opinion, the correctness
of that opinion cannot be challenged before courts. It is open
to an aggrieved party to contend that the requisite opinion has
not been formed or the decision is based on collateral grounds
11
or that it is an arbitrary decision.
D
26. The law on the subjective satisfaction has been dealt with
elaborately in Barium Chemicals v. Company Law Board, AIR 1967 S.C.
295. At page 323, She lat, J ., after referring to several decisions dealing
with action taken on subjective satisfaction, observed thus:
E
"Bearing in mind these principles the provisions of S. 237 (b).
may now be examined. The clause empowers the Central
Government and by reason of delegation of its powers the
Board to appoint inspectors to investigate the affairs of the
F company, if "in the opinion of the Central Government" (now
the Board) there are circumstances "suggesting" what is stated
in the three sub-clauses. The power is executive and the
--
opinion requisite before an order .can be made is of the Central
Government or the Board as the case may be and not of a
Court. Therefore, the Court cannot substitute its own opinion
G. for the opinion of the authority. But the question is, whether
the entire action under the section is subjective?"

27. The learned Judges then referred to certain other decisions ·
including the decision in Val/ulamnel v. Reserve Bank of India, AIR 1962
H S.C.1371 and concluded as follows:
BAlKUNTHA NATH v. MEDICAL OFFICER [JEEYAN REDDY, J.] 853

1
"Therefore, the words, "reason to believe' or "in the opinion of' A
do not always lead to the construction that the process of
entertaining ''reason to believe" or 1'the opinion 11 is an altogether
subjective process not lending itself even to a limited scrutiny
by the court that such "a reason to believe 11 or 11 opinion" was
not formed on relevant facts or within the limits or as Lord
B
Radcliffe and Lord Reid called the restraints of the statute as
an alternative safeguard to rule 'of natural justice where the
function is administrative.''

28. The blurring of the dividing line between a quasi- judicial order C
and an administrative order, pointed out in Kraipak has no effect upon the
above position, more so when compulsory retirement is not a punishment nor
does it imply any stigma. Kraipak- or for that matter, Maneka Gandhi -
cannot be understood as doing away with the concept of subjective satisfac-
tion.
D
29. On the above premises, it follows, in our respectful opinion that the
view taken inl.N.Sinlza is the correct one viz., principles of natural justice are
not attracted in a case of compulsory retirement under F.R. 56 (j) or a rule
corresponding to it. In this context, we may point out a practical difficulty
arising from the simultaneous operation of two rules enunciated in Brij E
Mohan Singh Chopra. On one hand, it is stated that only the entries of last ten
years should be seen and on the other hand, it is stated that if there are any .
adverse remarks therein, they must not only be communicated but the repre-
sentations made against them should be considered and disposed of before
they can be taken into consideration. Where do we draw the line in the F
matter of disposal of representation. Does it mean, disposal by the ap-
propriate authority alone or does it include appeal as well. Even if the appeal
is dismissed, the government servant may file a revision or make a repre-
sentation to a still higher authority. He may also approach a court or
Tribunal for expunging those remarks. Should the government wait until all
these stages are over. All that would naturally take a long time by which time, G
these reports would also have become stale. A government servant so
minded can adopt one or the other proceeding to keep the matter alive. This
is an additional reason for holding that the principle of M.E.Reddy should be
preferred over Brij Mohan Singh Chopra and Baidyanath Mahapatra, on the
question of taking into consideration uncommunicatcd adverse remarks. H
854 SUPREME COURT REPORTS [l 992J 1 S.C.R.

A 30. Another factor to be borne in mind is this: most often, the
authority which made the adverse remarks and the authority competent to
retire him compulsorily arc not the same. There is no reason to presume that
the authority competent to retire him will not act honafide or will not consider
the entire record dispassionately. As the decided cases show, very often, a
Review Committee consisting of more than one responsible official is con-
B
stituted to examine the cases and make their recommendation to the govern-
ment. The Review Committee, or the government, would not naturally be
swayed by one or two remarks, favourable or adverse. They would form an
opinion on a totality of consideration of the entire record-including repre-
sentations, if any, made hy the government servant against the above
c remarks- of course attaching more importance lo later period of his service.
Another circumstance to be borne in mind is the unlikelihood of succession
of officers making unfounded remarks against a government s~rvant.

31. We may not be understood as saying either that adverse remarks
D need not he communicated or that the representations, if any, submitted by
the government servant (against such remarks) need not be considered or
disposed of. The adverse remarks ought to he communicated in the normal
course, as required by the Rules/orders in that behalf. Any representations
made against them would and should also be dealt with in the normal course,
with reasonable promptitude. All that we are saying is that the action under
E F.R. 56 (j) (or the Ruic 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
F under F.R. 56 (j) need not be held back. There is no reason lo presume that
the Review Committee or the government, if it chooses lo take into con-
sideration such uncornmunicatcd remarks, \vould not be conscious or cog-
nizant of the fact that they are not communicated lo the government servant
and that he was not given an opportunity lo explain or rebut the same.
Similarly, if any representation made by the government servant is there, it
G shall also be taken into consideration. We may reiterate that not only the
Review Committee is generally composed of high and responsible officers,
the power is vested in government alone and not in a minor official. It is
unlikely that adverse remarks over a number of years remain uncommuni-
cated and yet they are made the primary basis of action. Such an unlikely
H situation if indeed present, may be indicative of malice in law. We may
BAIKUNTHA NATH v. MEDICAL OFFICER [JEEVAN REDDY. J.] 855
·• '
mention in this connection that the remedy prO\;ded by Article 226 of the A
Constitution is no less an important safeguard. Even with its well-known
constraints, the remedy is an effective check against nlala fide, perverse or
arbitrary action.

At this stage, we think it appropriate to append a note of clarifica-
tion. What is normally required to be communicated is adverse rcmarks- B
not every remark, comment or observation made in the confidential rolls.
There may be any number of remarks, observations and comments, which
do not constitute advqse remarks, but are yet relevant for the purpose of
F.R. 56 (j) or a Ruic corresponding to it. The object and purposes for
which this power is to be exercised are well-stated in J.N.Sinha and other C
~ecisions referred supra.

32. The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment. It
implies no stigma nor any suggestion of misbehaviour. D

(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.
E
(iii) Principles of natural justice have no place in the context of an
order of compulsory retirement. This does not plean 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) ma/a fide or (b) that it is based on no F
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 " perverse order.

(iv) The government (or the Review Committee, as the ease may be)
shall have to consider the entire record of service before taking a decision G
in the matter- of course attaching more importance to record of and
performance during the later )'ears. 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 H
856 SUPREME COURT REPORTS (1992] l S.C.R.

A 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 uncommunicatcd
adverse ren1arks were also taken into consideration. l'hat circumstance by
B 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 29 to 31 above.

33. Before parting with the case, \VC must refer to an argument urged

c by Sri R.K.Garg. He stressed what is called, the new concept of Article
14 as adumbcratcd in Mancka Gandhi (A.LR. 1978 S.C. 579) and submitted
on that b<:isis that any and every arhitrary action is open to judicial scrutiny.
The general principle evolved in the said decision is not in issue here. We
arc conccrne<l n1ainly \Vith the question \Vhcthcr a facet of principle of
natural justice-audi a/teran1 parte111-is attracted in the case of compul-
0 sory retirement. In other \vords, the question is whether acting upon
undisclosed material is a ground ror quashing the order or compulsory
retirement. Since we have held that the nature of the function is not
quasi-judicial in nature and because the action has to be taken on the
subjective satisfaction of the (Jovernmcnt, there is no room for importing
E the said facet of natural justice in such a case, more particularly when an
order of compulsory retirement is not a .punishment nor does it involve any
stigma.
.
34. So far as the appeals before us arc concerned, the High Court
which has looked into the relevant record and confidential records has
F opined that the order of compulsory retirement was based not merely upon
the said adverse remarks but other material as well. Secondly, it has also
found that the material placed before them does not justify the conclusion
that the said remarks were not recorded duly or properly. In the cir-
cumstances, it cannot he said that the order of compulsory retirement
suffers from ma/a fidcs or that it is based on no evidence or that it is
G arbitrary.

35. For the above reason, both the appeals are dismissed but in
circumstances of the case, we make no order as to costs.

V.P.R. Appeals dismissed.