Supreme Court of India
RAJASTHAN STATE ROAD TRANSPORT CORP. & ORS.versusBABU LAL JANGIR
- Citation
- 2013 INSC 624
- Decided
- 16 September 2013
- Disposal
- Appeal(s) allowed
- Bench
- K S RADHAKRISHNAN
Holding
Compulsory retirement is valid if the authority, after considering the employee's entire service record, forms a bona‑fide opinion that it is in the public interest, and old adverse entries are not per se barred from consideration.
Summary
The Rajasthan State Road Transport Corporation retired Babu Lal Jangir compulsorily in 2002 under its standing orders after a screening committee found his service record unsatisfactory. Jangir challenged the retirement, arguing that the misconduct cited dated from 1978‑1990 was too old and that his more recent record was clean. The High Court quashed the retirement, holding that reliance on stale material was unreasonable, but the Division Bench upheld that decision. The Supreme Court examined the law on compulsory retirement, emphasizing that the employer's power is absolute if exercised in public interest and that the entire service record, including recent performance, must be considered. It held that old adverse entries are not automatically discarded for retirement decisions, especially where they relate to integrity, and set aside the High Court’s order, upholding the retirement. The appeal was allowed, confirming the corporation’s right to retire the employee.
Issues considered
- Whether a corporation may rely on adverse service records that are more than twelve years old to justify compulsory retirement.
- Whether the power of compulsory retirement is subject to judicial review on grounds of arbitrariness, mala fides, or non‑application of mind.
- Whether the 'washed off' theory applies to compulsory retirement assessments after promotion.
Legislation cited
- Indian Penal Code, 1860s. 279, s. 304(a)
- Industrial Employment (Standing Orders) Act, 1946
- Motor Vehicles Acts. 118, s. 18
Subjects
service lawcompulsory retiremententire service recordwashed off theoryjudicial reviewpublic interestadverse entriespromotion
Judgment
[2013) 11 S.C.R. 159
RAJASTHAN STATE ROAD TRANSPORT CORP. & ORS. A
V.
BABU LAL JANGIR
(Civil Appeal No. 8245 of 2013)
SEPTEMBER 16, 2013
B
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Service Law - Retirement - Compulsory retirement -
Respondent working in appellant-transport Corporation
compulsorily retired from service in the year 2002 - Writ C
Petition - High Court held that the acts of misconduct pointed
out against the respondent pertained to a period more than
12 years before his compulsory retirement and it was unjust,
unreasonable and arbitrary to retire the respondent
prematurely on the basis of old and stale material pertaining o
to the period 1978-1990 - Quashing of the order of
compulsory retirement of respondent - Justification - Held:
The entire service record is relevant for deciding as to whether
the government servant needs to be eased out prematurely
- However, at the same time, subsequent record is also E
relevant, and immediate past record, preceding the date on
which decision is to be taken would be of more value,
qualitatively - What is to be examined is the "overall
performance" on the basis of "entire service record" to come
to the conclusion as to whether the concerned employee has
become a deadwood and it is public interest to retire him
F
compulsorily - On facts, insofar as period 1978-1990 is
concerned, the respondent was charge sheeted in 19 cases
- In few cases he was exonerated and in some other cases
he was given minor penalty which projects a dis17Jal picture -
Even the service record after 1990 i.e. in last 12 years G
preceding the order of retirement does not depict a rosy
picture - In any case, nothing to show the performance of
respondent became better during this period - Order of
159
H
160 SUPREME COURT REPORTS [2013) 11 S.C.R.
A compulsory retirement accordingly upheld - Industrial
Employment (Standing Orders) Act, 1946 - Rajasthan State
Road Transport Workers and workshop Employees Standing
Orders, 1965 - r.18-D.
Service Law - Retirement - Compulsory retirement -
8 Nature of - Scope for judicial review - Held: The order of
compulsory retirement is neither punitive nor stigmatic - It is
based on subjective satisfaction of the employer and a very
limited scope of judicial review is available in such cases -
Interference is permissible only on the ground of non
C application of mind, malafide, perverse, or arbitrary or if there
is non-compliance of statutory duty by the statutory authority
- Power to retire compulsorily, the government servant in
terms of service rule is absolute, provided the authority
concerned forms a bonafide opinion that compulsory
D retirement is in public interest.
Service Law - Retirement - Compulsory retirement -
Considerations for - Entire service record - If to be looked at
- Adverse entries - Relevance of - Held: After promotion of
E an employee, the adverse entries prior thereto have no
relevance and can be treated as wiped off when the case of
the employee is to be considered for further promotion -
However, this 'washed off theory' has no application when case
of an employee is assessed to determine whether he is fit to
be retained in service or requires to be given compulsory
F retirement - The rationale is that since such an assessment
is based on "entire service record': there is no question of not
taking into consideration earlier old adverse entries or record
of the old period - While such a record can be taken into
consideration, at the same time, the service record of the
G immediate past period are to be given due credence and
weightage.
The Respondent worked in appellant-Rajasthan State
Road Transport Corporation. The appellant had framed
H Standing Orders for its employees known as the
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 161
BABU LAL JANGIR
Rajasthan State Road Transport Workers and workshop A
Employees Stan_ding Orders, 1965. There was
amendment in these Standing Orders and certain new
clauses under rule 18, were inserted introducing the
provision of compulsory and voluntary retirement. The
clauses pertaining to compulsory retirement. gives the B
app~llant-Corporation absolute right to :retire any
employee after he attains the age of 50 y•ars or on
completion of 25 years service whichever is earlier.
A Screening Committee was consti(uted by the C
appellant-Corporation to look into the conduct and
continuance of four employees incl~Jling the respondent
who had attained the age of 50 y.ears or had completed
25 years of service. The Committee, on perusal of the
record of the respondent, recommended his compulsory
retirement. The Review Committee approved the D
proposal of the Screening Committee and based thereon,
the Competent Authority passed orders in the year 2002,
compulsorily retiring the respondent from service.
Challenging this action of the appellant, the E
respondent filed"Writ Petition in the High Court. The
Single Judge of the High Court held that the various acts
of misconduct pointed out by the appellant-Corporation
against the respondent pertained to a period more than
12 years before his compulsory retirement and that the F
appellant-Corporation was not able to point out any
deficiency in. ttie work and conduct of the Respondent
for over 1O years immediately preceding his compulsory
retirement and it was thus, unjust, unreasonable and
!lrbitrary to retire the respondent prematurely on the basis G
of old and stale material. Accordingly the order of
compulsory retirement of the responde,nt was quashed.
The appellant preferred writ appeal which was dismissed
by the Division Bench, and therefore the present appeal.
Allowing the appeal, the Court H
162 SUPREME COURT REPORTS [2013] 11 S.C.R.
A HELD:1.1. After the promotion of an employee the
adverse entries prior thereto would have no relevance
and can be treated as wiped off when the case of the
government employee is to be considered for further
promotion. However, this 'washed off theory' will have no
B application when case of an employee is being assessed
to determine whether he is fit to be retained in service or
requires to be given compulsory retirement. The rationale
is that since such an assessment is based on "entire
service record", there is no question of not taking into
c consideration an earlier old adverse entries or record of
the old period. While such a record can be taken into
consideration, at the same time, the service record of the
immediate past period will have to be given due credence
and weightage. For example, as against some very old
0 adverse entries where the immediate past record shows
exemplary performance, ignoring such a record of recent
past and acting only on the basis of old adverse entries,
to retire a person will be a clear example of arbitrary
exercise of power. However, if old record pertains to
E integrity of a person then that may be sufficient to justify
the order of premature retirement of the government
servant. (Para 24] (179-F-H; 180-A-B]
1.2. In the present case, the High Court could not
have set aside the order of compulsory retirement merely
F on the ground that service record pertaining to the period
1978-90 being old and stale could not be taken into
consideration at all. The entire service record is relevant
for deciding as to whether the government servant needs
to be eased o~t prematurely. Of course, at the same time,
G subsequent record is also relevant, and immediate past
record, preceding the date on which decision is to be
taken would be of more value, qualitatively. What is to be
examined is the "overall performance" on the basis of
"entire service record" to come to the conclusion as to
H whether the concerned employee has become a
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 163
BABU LAL JANGIR
deadwood and it is public interest to retire him A
compulsorily. The Authority must consider and examine
the overall effect of the entriE;is of the office.r concerned
and not an isolated entry, as it may well be in so~e cases
that inspite of satisfactory performance, the Authority
may desire to compulsorily retire an employee in public B
interest, as in the opinion of the said authority, the post
has to be manned by a more efficient and dynamic person
and if there is sufficient material on record to show that
the employee "rendered himself a liability to the
institution", there is no occasion for the Court to interfere c
in the exercise of its limited power of judicial review."
[Para 25] [180-C-H]
1.3. Insofar as period of 1978-1990 is concerned, the
respondent was charge sheeted in 19 cases. In few
cases he was exonerated and in some other cases he D
was given minor penalty like admonition, stoppage of
pay, annual grade increment for a limited period. The
aforesaid record projects the dismal picture. The High
Court has observed that there is nothing adverse in the
career of the respondent after 1990 i.e. in last 12 years E
preceding the order of retirement. These observations are
not correct inasmuch as: (a) There was an inquiry against
the respondent for which he was imposed the penalty of
stoppage of increment for two years. He had made a
representation against this penalty on 5.11.1998 which F
was dismissed on 25.5.1998 and (b) Further another
criminal case was also instituted against him in the year
1999. Though outcome of this criminal case is not
mentioned, fact remains that the accident was caused by
the Respondent while driving the bu~ of the appellant G
Corporation, and the appellant corporation had to pay
heavy compensation to the victims as a result of orders
passed by MACT. Thus even the service record after 1990
does not depict a rosy picture. In any case, there is
H
164 SUPREME COURT REPORTS [2013) 11 S.C.R.
A nothing to show his performance became better during
this period. [Paras 26, 27) [181-A-B; 184-C-GJ
1.4. The order of compulsory retirement is neither
punitive nor stigmatic. It is based on subjective
8 satisfaction of the employer and a very limited scope of
judicial review is available in such cases. Interference is
permissible only on the ground of non application of
mind, malafide, perverse, or arbitrary or if there is non-
compliance of statutory duty by the statutory authority.
C Power to retire compulsorily, the government servant in
terms of service rule is absolute, provided the authority
concerned forms a bonafide opinion that compulsory
retirement is in public interest. [Para 28] [184-G-H]
1.5. In the case at hand, the impugned order of the
D High Court is set aside thereby upholding the order of
compulsory retirement. [Para 29) [185-B-C)
Pyare Mohan Lal v. State of Jharkhand and Ors. (2010)
10 SCC 693; Baikuntha Nath Das & Anr. v. Chief District
E Medical Officer, Baripara & Anr.;1992 (2) SCC 299; The State
of Punjab v. Gurdas Singh; 1998 (4) SCC 92 and Union of
India v. Col. J.N. Sinha & Anr. 1970 (II) LLJ 284 - relied on.
Brij Mohan Singh Chopra v. State of Punjab 1987 (2)
sec 188 - held overruled.
F
Badrinath v. Government of Tamil Nadu and Ors.
2000(8) SCC 395; 2000(6) SCALE 618 - referred to.
Case Law Reference:
G 1987 (2) sec 188 held overruled Para 9
1992 (2) sec 299 relied on Para 14
1998 (4) sec 92 relied on Para 14
1970 (II) LLJ 284 relied on Para 16
H
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 165
BABU LAL JANGIR
2oooca> sec 395 referred to Para 18 A
c2010) 10 sec 693 relied on Para 21
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8245 of 2013. ·
B
From the Judgment & Order dated 16.01.2013 of the High
Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B.
Civil Special Appeal {Writ) No. 965 of 2012.
S.K. Bhattacharya, Niraj Bobby Paonam for the Appellant. C
Babu Lal Jangir {Respondent-In-Person).
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. Leave granted.
D
2. Rajasthan State Road Transport Corporation is the
appellant in the instant petition through of which it impugns the
validity of the orders dated 16.1.2013 passed by Division Bench
of the High Court of Judicature For Rajasthan, Bench at Jaipur.
The Division Bench has dismissed the Writ Appeal of the E
appellant and confirmed the orders of the Additional Judge
passed in the Writ Petition filed by the respondent herein,
quashing the orders of compulsory retirement of the respondent
with the direction that the respondent would be deemed to be
in the service as if the order of compulsory retirement had not F
been passed and as a consequence the respondent is held
entitled to all consequential benefits.
3. The Respondent joined the services of the appellant on
the post of Driver on 14.2.1977. He was placed on probation G
for a period of one year.
4. The appellant has framed Standing Orde~s for its
employees known as the Rajasthan State Road Transport
Workers and workshop Employees Standing Orders, 1965
{hereinafter to be referred as the 'Standing Orders'). These H
166 SUPREME COURT REPORTS [2013] 11 S.C.R.
A orders are duly certified by the Authority under the provisions
of Industrial Employment (Standing Orders) Act, 1946.
Subsequently, there was an amendment in these Standing
Orders and certain new clauses under rule 18, were inserted
introducing the provision of compulsory and voluntary retirement.
B The same are reproduced herein below:
"18-0(1) COMPULSORY RETIREMENT
Notwithstanding anything contained in the
regulations the Corporation may if is of the opinion that it
C is in the interest of the Corporation to do so, have the
absolute right to retire any Corporation employee after, he
has attained the age of 50 years or on the date he
completes 25 years of service whichever is earlier, or on
any date thereafter, by giving him 3' months notice in writing
D or three months pay and allowances in lieu thereof.
18-D (2) VOLUNTARY RETIREMENT
Notwithstanding anything contained here in before
Corporation employee may after giving three months
E previous notice in writing, retire from the service on the date
on which he completes 20 years service on the date he
attains the age of 45 years or on any other date thereafter."
5. It is clear from the above that the clauses pertaining to
F compulsory retirement gives the Petitioner-Corporation
absolute right to retire any employee after he attains the age
of 50 years or on completion of 25 years service whichever is
earlier.
6. A Screening Committee was constituted by the
G Petitioner Corporation in 27.3.2002 to look into the conduct and
continuance of four employees who had attained the age of 50
years or had completed 25 years of service. Among these four
persons, name of the Respondent also appeared.
H 7. This committee, on perusal of the record of the
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 167
BABU LAL JANGIR [A.K. SIKRI, J.]
respondent, recommended his compulsory retirement. Tohe A
Review Committee held its meeting on 8.4.2002 to review the
report of the Screening Committee and after perusal of the
report of the Screening Committee, the Review Committee
approved the proposal of the Screening Committee. Based on
the recommendation of the Review Committee, the Competent B
Authority passed the orders dated 9.4.2002, compulsorily
retiring the respondent from service. As three months previous
notice is required under rule 18-D (1) of the Standing Orders,
in lieu thereof the respondent was sent three months' salary
~~ue. C
8. Challenging this action of the appellant, the respondent
filed the Writ Petition in the High Court of Judicature for
Rajasthan. The appellant herein (Respondent in the Writ
Petition) appeared and decided a Writ Petition by filing counter
affidavit. It was the highlight of the petitioner's defense that the D
service record of the respondent showed a dismal picture, in
as much as between the year 1978-1990, nearly 19 cases of
misconduct were foisted upon the respondent which resulted
into some or the other kind of penalty like admonition or
stoppage of pay or annual grade increment for a limited period. E
So much so, in the year 1992 a criminal case against the
respondent was initiated under Section 279 read with Section
304 (a) of IPC and Section 18/118 of the Motor Vehicles Act.
In that case he was given the benefit of doubt and released.
However, a departmental inquiry was held in which penalty of F
imposition or stoppage of two years' increment was imposed
upon him. A representation against this penalty was also
dismissed. In the year 1999 another criminal case was
instituted against the Respondent because of the accident of
the bus of the petitioner which was driven by the Respondent G
as Driver. The victims had also filed their claim before the
Motor Claim Tribunal (MACT) and the Appellant -Corporation
had to suffer heavy loss by paying compensation in the said
case. However, in criminal case, the Respondent was
acquitted: The appellant also pointed out that the service record H
168 SUPREME COURT REPORTS [2013] 11 S.C.R.
A of Jhe Respondent revealed that he was also involved in the
another accident in the year 1999 in which he suffered serious
burn injuries. Because of this, he had moved an application
requesting the Petitioner-Corporation to give him light job.
Accordingly, he was posted as staff car Driver at Head Office.
B This job was given to him virtually showing mercy, which did
not entail regular hard work. It was thus, argued by the Appellant
-Corporation that the aforesaid entire service record was gone
into by the Screening Committee as well as the Review
Committee on the basis of which the decision was taken to
c retire the Respondent prematurely.
9. The learned Single Judge of the High Court, however,
did not eschew the aforesaid submission of the Appellant -
Corporation giving the reason that the various acts of
misconduct pointed out by the Petitioner-Corporation against
D the Respondent herein pertained to the period between 1978-
90, whereas the order of compulsory retirement was passed
12 years thereafter i.e. on 9.4.2002. In the opinion of the
learned Single Judge, thee minor misconducts of the period
more than 12 years before the compulsory retirement were not
E sufficient to come to the conclusion that the compulsory
retirement of the respondent was in public interest. .The learned
Single Judge also observed that record of immediate past
period was not looked into at all and on the basis of current
purpose it could not be said that respondent had become
F deadwood or had become inefficient who needed to be
weeded out. It also It also remarked that the appellant
corporation was not able to point out any deficiency in the work
and conduct of the Respondent for over 10 years immediately
preceding his compulsory retirement. It was thus, unjust,
G unreasonable and arbitrary to retire the respondent prematurely
on the basis of old and stale material. For coming to this
conclusion the learned Single Judge drew sustenance from the
judgment of this Court in Brij Mohan Singh Chopra v. State of
Punjab 1987 (2) sec 188.
H
•,z.
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 1169
BABU LAL JANGIR [A.K. SIKRI, J.]
10. Not satisfied with the aforesaid outcome, the appellant A
preferred Writ Appeal before the Division Bench but without any
success as the said Writ Appeal has been dismissed by the
Division Bench.echoing the reasons given by the Id. Single
Judge. While upholding the order of the learned Single Judge,
the Division Bench also noted that the recorded date of birth, B
at the time of entry of the Respondent into service, was
7.7.1951. Since the normal age of superannuation is 60 years,
the respondent would have continued in service till the year
2011. Since he was prematurely retired and that retirement has
been set aside with the direction that he deems to be in service, c
the respondent would have to be treated in service till July,
2011. However, before the Division Bench, the respondent
raised the dispute about his date of birth contending that his
actual date of birth was 21.1.1957 which was even recorded
in some of the official documents. He thus pleaded that he had D
right to continue in service even beyond July 2011 i.e. upto the
end of January, 2017.
11. The High Court, however refrained from passing any
order on this aspect and observed that it would be open to the
respondent to submit a proper presentation before the E
concerned authority of the Appellant -Corporation who will
examine the records of his date of birth and take a decision
thereon. It further directed:
"In case his date of birth is ultimately determined to be 71 F
7/1951, all consequential benefits following the interference
with the order of compulsory retirement would be released
to him. In the eventuality of his date of birth being
determined to be 21.9.1957, the Corporation would
consider his reinstatement in service."
G
12. On the very first day i.e. on 23.8.13, when this petition
came up for hearing, the respondent appeared person. He
showed his willingness to argue the matter himself finally at the
admission stage itself. As this course of action was agreeable
H
170 SUPREME COURT REPORTS [2013] 11 S.C.R.
A to the Counsel for the petitioner as well, the parties were heard
at length.
13. From the narration of facts stated above and
specifically from the perusal of the judgment of the learned
8 Single Judge which is upheld by the Division Bench on the
same reasoninq it is app"!rent clear that the main reason for
setting aside the order of compulsory retirement is that adverse
entries/ minor mis-conducts of the Respondent related to the
period 1978-90 i.e 12 years prior to premature retirement were
C taken into consideration and there was no material whatsoever
before this Review Committee in the recent past on the basis
of which, the requisite opinion could be framed that the
premature retirement of the respondent was in public interest.
Again, as pointed above, for arriving at this conclusion, the High
Court extensively relied upon judgment of this Court in Brij
D Mohan Singh Chopra (supra).
14. First and foremost argument of the learned Counsel
for the appellant was that judgment of this Court in Brij Mohan
Singh Chopra (supra) was overruled by three member Bench
E in Baikuntha Nath Das & Anr. v. Chief District Medical Officer,
Baripara & Anr.;1992 (2) SCC 299, and it was specifically
recorded so in subsequent judgment in the case of The State
of Punjab v. Gurdas Singh; 1998 (4) SCC 92. This calls for
examination of this argument in the first instance.
F _ 15. A reading of Baikuntha Nath judgment would reveal
that the main issue in that case was as to whether the employer
could act upon, un-communicated adverse remarks and
whether observance of the principles of natural justice was
necessary before taking a decision to compulsory retire a
G government servant. The court answered both the questions in
the negative holding that it was permissible for the Government
to even look into and consider un-communicated adverse
remarks. ft was also held that since the premature retirement
was not stigmatic in nature and such an action was based on
H subjective satisfaction of the Government, there was no room
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 171
BABU LAL JANGIR [A.K. SIKRI, J.]
for importing facet of natural justice in such a case. In the A
process of discussion and giving reasons for the aforesaid
opinion, the Court took note of various judgments. Decision in
the case of Brij Mohan Singh Chopra (supra) was also
specifically dealt with. In this case there were no adverse
entries in the confidential records of the appellant for a period 8
of five years prior to the impugned order of premature
retirement. Within five years there were two adverse entries.
However, these adverse remarks were not communicated to
the employee. The order based on un-communicated adverse
entries was set aside on two grounds namely: c
(i) It was not reasonable and just to consider adverse
entries of remote past and to ignore good entries
of recent past. If the entries for the period of more
than 10 years past are taken into account it would
be act of digging out past to get some material to D
make an order against the employee.
(ii) Since the adverse entries were not even
communicated, it was unjust and unfair and contrary
to principles of natural justice to retire prematurely E
a government employee on the basis of adverse
entries which are either not communicated to him
or if communicated, representations made against
those entries are not considered and disposed of.
16. After taking note of the aforesaid grounds on which the F
order of compulsory retirement in Brij Mohan Singh Chopra
(supra) was set aside, the Court in Baiki.mtha Nath Das (supra)
dealt with the second ground alone namely whether principles
of natural justice were required to be followed or it was
permissible for the Government to take into consideration the G
adverse entries which were either not communicated to him or
if communicated representations made against those entries
were still pending. This second proposition of Brij Mohan Singh
Chopra was held as not the correct proposition in law and
principles of natural justice could not be brought in such a case. H
172 SUPREME COURT REPORTS [2013] 11 S.C.R.
A The Court had noted that this reasoning was in conflict with the
earlier judgment in the case Union of India v. Col. J.N. Sinha
& Anr. 1970 (II) LLJ 284 and agreed with the view taken in J.N.
Sinha's Case.
17. It clearly follows from the above that in so far as first
8
ground in Brij Mohan Singh Chopra namely consideration of
adverse entries of remote past was inappropriate to
compulsory retire an employee, was not touched or discussed.
In fact, on the facts of the Baikunth Nath Dass, this proposition
did not arise for consideration at all. No doubt, in Gurdas
C Singh's Case, it has been specifically remarked that the
judgment in Brij Mohan Singh Chopra (supra) has been
overruled in Baikuntha Nath (supra). It would be relevant to
point out that even Gurdas Singh was a case relating to un-
communicated adverse entries. Therefore, Brij Mohan Singh
D Chopra was overruled only on the second proposition.
18. The fact that the issue as to whether remote past of
the employee can be taken into consideration or not was not
dealt with in Baikuntha Nath Das or Gurdas Singh Case was
E specifically noticed by this Court in the case of Badrinath v.
Government of Tamil Nadu and Ors. 2000(8) SCC 395;
2000(6) SCALE 618. That was a case where this question of
taking into consideration the old records came up directly for
discussion. The court discussed the judgment in Brij Mohan
F Singh Chopra and pointed out that three judge Bench in
Baikuntha Nath Das overruled Brij Mohan Singh Chopra Case
only on the second aspect, namely non-communication of the
adverse reports. In so far as first aspect, which pertained to
considering adverse entries of old period, the Court also .
pointed out that in Para 32 of Baikuntha Nath Das Case,
G various legal principles/propositions were summed up and
drew attention to principle No.(iv) in that para with which we are
concerned. It reads as under:
"So far as the appeals before us are concerned, the High
H
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 173
BABU LAL JANGIR [A.K. SIKRI, J.]
Court has looked into the relevant record and confidential A
records has 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. B
In the circumstances, it cannot be said that the said
remarks were not recorded duly or properly. In the
circumstances, it cannot be said that the order of
compulsory retirement suffers from mala fides or that it is
based on no evidence or that it is arbitrary." c
. 19. On that basis following pertinent observations were
made in Badrinath case:
"54. We are however concerned with the first point
stated in Brij Mohan Singh Chopra's case as D
explained and accepted in principle (iv) of para 34
of the three Judge Judgment in Ba.ikunth Nath Das.
We have already extracted this passage in
principle (iv) of para 34. It reaffirms that old adverse
remarks are not to be dug out and that adverse E
remarks made before an earlier selection for
promotion are to be treated as having lost their
'sting'. This view of the three Judge Bench, in our
view, has since been not departed from. We shall,
therefore, refer to the two latter cases which have F
referred to this case in Baikunth Nath Das. The
second of these two latter cases has also to be
explained.
55. In the first of these latter cases, namely, Union of
India v. V.R. Seth MANU/SC/0286/1994 : G
(1994)11LLJ411SC the point related both to adverse
remarks of a period before an earlier promotion
but also to uncommunicated adverse remarks. It
was held that the Tribunal was wrong in holding in
favour of the officer on the ground that H
174 SUPREME COURT REPORTS [2013) 11 S.C.R.
A uncommunicated adverse remarks could not be
relied upon for purposes of compulsory retirement.
So far as the remarks prior to an earlier promotion
this Court did not hold that they could be given as
much weight as those in later years. The Court, in
B fact, relied upon Baikunth Nath Das case decided
by three Ju~ge Bench which had proposition (iv) in
para 34 (at p. 315-316) had clearly accepted that
adverse remarks prior to an earlier promotion lose
their 'sting'.
c 56. The second case is the one in State of Punjab
v, Gurdas Singh MANU/SC/0256/1998:
AIR1998SC1661 . The facts there were that there
were adverse remarks from 1978 prior to 1984
when the officer was promoted and there were also
D adverse remarks for the period 18.6.84 to 31.3.85.
The compulsory retirement order was passed on
3.9.87. The said order was quashed by the Civil
Court on the ground that his record prior to his
promotion i.e. prior to 1984 could not have been
E considered and two adverse entries after 1984
were not communicated and could not be relied
upon. The three Judge Bench, while clearly setting
out proposition (iv) in para 34 (at p. 315-316) of
Baikunth Nath Das which said that adverse remarks
F prior to promotion lose their sting, held that they
were following the said judgment and they allowed
the appeal of the State. Following Baikunth Nath
Das, the Bench felt that uncommunicated adverse
remarks could be relied upon and in that case these
G entries related to the period after an earlier
promotion. That ground alone was sufficient for the
case. There is a further observation (at p. 99, para
11) that an adverse entry prior to earning of
promotion or crossing of efficiency bar or picking
H up higher rank is not wiped out and can be taken
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 175
BABU LAL JANGIR [A.K. SIKRI, J.]
into consideration while considering the overall A
performance of the employee during the whole
tenure of service.
57. The above sentence in Gurdas Singh needs to be
explained in the context of the Bench accepting the B
three Judge Bench ruling in Baikunth Nath Das.
Firstly, this last observation in Gurdas Singh's case
does not go against the general principle laid down
in Baikunth Nath Das to the effect that though
adverse remarks prior to an earlier promotion can C
be taken into account, they would have lost their
'sting'. Secondly, there is a special fact in Gurdas
Singh's case, namely, that the adverse remarks
prior to the earlier promotion related to his
"dishonesty". In a case relating to compulsory
retirement therefore, the sting in adverse remarks D
relating to dishonesty prior to an earlier promotion
cannot be said to be absolutely wiped out. The fact
also remains that in Gurdas Singh's case there
were other adverse remarks also even after the
earlier promotion, regarding dishonesty though they E
were not communicated. We do not think that
Gurdas Singh is an authority to say that adverse
remarks before a promotion however remote could
be given full weight in all situations irrespective of
whether they related to dishonesty or otherwise. As F
pointed in the three Judge Bench case in Baikunth
Nath Das, which was followed in Gurdas Singh they
can be kept in mind but not given the normal weight
which could have otherwise been given to them but
their strength is substantialiy weakened unless of G
course they related to dishonesty."
20. If one were to go by the dicta in Badrinath Case,
obvious conclusion would be that even if there are adverse
remarks in the service career of an employee they would lose
H
176 SUPREME COURT REPORTS (2013] 11 S.C.R.
A there effect, when that employee is given promotion to the higher
post and would not be taken into account when the case of that
employee for compulsory retirement is taken up for
consideration, except only those adverse entries in the
confidential reports of that employee which touch upon his
B integrity. Thus, Badrinath case interprets principle (iv) in para
32 of Baikunth Dass to mean such adverse remarks for the
period prior to promotion, unless they are related to dishonesty,
would be substantially weekend after the promotion.
C 21. This interpretation given in Badrinath case, which was
the judgment rendered by two member Bench, has not been
accepted by three member bench of this Court, subsequently,
in Pyare Mohan Lal v. State of Jharkhand and Ors. (2010) 10
SCC 693. After discussing various judgments, including the
judgments referred to by us hitherto, the Court clarified and
D spelled out the crrcumstances in which the earlier adverse
entries/ record would be wiped of and the circumstances in
which the said record, even of remote past would not lose its
significance. It is lucidly conceptualized under the head
"Washed Off Theory" as follows:
E
"WASHED OFF THEORY
"19. In State of Punjab v. Dewan Chuni Lal MANU/SC/
0497/1970 : AIR 1970 SC 2086, a t.vo-Judge
Bench of this Court held that adverse entries
F regarding the dishonesty and inefficiency of the
government employee in his ACRs have to be
ignored if, subsequent to recording of the same, he
had been allowed to cross the efficiency bar, as it
would mean that while permitting him to cross the
G efficiency bar such entries had been considered
and were not found of serious nature for the purpose
of crossing the efficiency bar.
20. Similarly, a two-Judge Bench of this Court in
H Baidyanath Mahapatra v. State of Orissa and
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 177
BABU LAL JANGIR [A.K. SIKRI, J.]
Anr. MANU/SC/0051/1989: AIR 1989 SC 2218, A
had taken a similar view on the issue observing that
adverse entries awarded to the employee in the
remote past lost significance in view of the fact that
he had subsequently been promoted to the higher
post, for the reason that while,considering the case B
for promotion he had been found to possess
eligibility and suitability and if such entry did not
reflect deficiency in his work and conduct for the
purpose of promotion, it would be difficult to
comprehend how such an adverse entry could be c
pressed into service for retiring him compulsorily.
When a government servant is promoted to higher
post on the basis of merit and selection, adverse
entries if any contained in his service record lose
their significance and remain on record as par.t of D
past history.
This view has been adopted by this Court in
Baikuntha Nath Das (supra).
21. However, a three-Judge Bench of this Court in E
State of Orissa and Ors. v. Ram Chandra
Das MANU/SC/0613/1996: AIR 1996 SC 2436,
had taken a different view as it had been held
therein that such entries still remain part of the
record for overall consideration to retire a F
government servant compulsorily. The object always
is public interest. Therefore, such entries do not
lose significance, even if the employee has
subsequently been promoted. The Court held as
under:
G
Merely because a promotion has been given even
after adverse entries were made, cannot be a
ground to note that compulsory retirement of the
government servant could not be ordered. The
evidence does not become inadmissible or H
178 SUPREME COURT REPORTS [2013] 11 S.C.R.
A irrelevant as opined by the Tribunal. What would be
relevant is whether upon that state of record as a
reasonable prudent man would the Government or
competent officer reach that decision. We find that
selfsame material after promotion may not be taken
B into consideration only to deny him further
promotion, if any. But that material undoubtedly
· would be available to the Government to consider
the overall expediency or necessity to continue the
government servant in service after he attained the
c required length of service or qualified period of
service for pension.
(Emphasis added)
22. This judgment has been approved and followed by
D this Court in State of Gujarat v. Umedbhai M.
Patel MANU/SC/0140/2001 : AIR 2001 SC 1109,
emphasising that the "entire record" of the
government ,servant is to be examined.
23. In Vijay Kumar Jain (supra), this Court held that the
E
vigour or sting of an entry does not get wiped out,
particularly, while considering the case of employee
for giving him compulsory retirement, as it requires
the examination of the entire service records,
including character rolls and confidential reports.
F 'Vigour or sting of an adverse entry is not wiped out'
merely it relates to the remote past. There may be
a single adverse entry of integrity which may be
sufficient to compulsorily retire the government
servant."
G
22. Stating that the judgment of larger Bench would be
binding, the washed off theory is summed up ~V the Court in
the following manner:
"In view of the above, the law can be summarised to state
H
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 179
BABU LAL JANGIR [A.K. SIKRI, J.]
that in case there is a conflict between two or more A
judgments of this Court, the judgment of the larger Bench
is to be followed. More so, the washed off theory does not
have universal application. It may have relevance while
considering the case of government servant for further
promotion but not in a case where the employee is being B
assessed by the Reviewing Authority to determine whether
he is fit to be retained in service or requires to be given
compulsory retirement, as the Committee is to assess his
suitability taking into consideration his "entire service
record". c
23. It clearly follows from the above that the clarification
given 'by two Bench judgment in Badrinath is not correct and
the observations of this Court in Gurdas Singh to the effect that
the adverse entries prior to the promotion or crossing of
efficiency bar or picking up higher rank are not wiped off and · D
can be taken into account while considering the overall
performance of the employee when it comes to the
consideration of case of that employee for premature
retirement.
E
24. The principle of law which is clarified and stands
crystallized after the judgment in Pyare Mohan Lal v. State of
Jharkhand and Ors.; 2010 (10) SCC 693 is that after the
promotion of an employee the adverse entries prior thereto
would have no relevance and can be treated as wiped off when F
the case of the government employee is to be considered for
further promotion. However, this 'washed off theory' will have
no application when case of an employee is being assessed
to determine whether he is fit to be retained in service or
requires to be given compulsory retirement. The rationale given G
is that since such an assessment is based on "entire service
record'', there is no question of not taking into consideration an
earlier old adverse entries or record of the old period. We may
hasten to add that while such a record can be taken into
consideration, at the same time, the service record of the
H
180 SUPREME COURT REPORTS [2013] 11 S.C.R
A immediate past period will have to be given due credence and
weightage. For example, as against some very old adverse
entries where the immediate past record shows exemplary
performance, ignoring such a record of recent past and acting
only on the basis of old adverse entries, to retire a person will
B be a clear example of arbitrary exercise of power. However, if
old record pertains to integrity of a person then that may be
sufficient to justify the order of premature retirement of the
government servant.
25. Having taken note of the correct principles which need
C to be applied, we can safely conclude that the order of the High
Court based solely on the judgment in the case of Brij Mohan
Singh Chopra was not correct. The High Court could not have
.set aside the order merely on the ground that service record
pertaining to the period 1978-90 being old and stale could not
D be taken into consideration at all. As per the law laid down in
the aforesaid judgments, it is clear that entire service record
is relevant for deciding as to whether the government servant
needs to be eased out prematurely. Of course, at the same
time, subsequent record is also relevant, and immediate past
E record, preceding the date on which decision is to be taken
would be of more value, qualitatively. What is to be examined
is the "overall performance" on the basis of "entire service
record" to come to the conclusion as to whether the concerned
employee has become a deadwood and it is public interest to
F retire him compulsorily. The Authority must consider and
examine the overall effect of the entries of the officer concerned
and not an isolated entry, as it may well be in some cases that
in spite of satisfactory performance, the Authority may desire
to compulsorily retire an employee in public interest, as in the
G opinion of the said authority, the post has to be manned by a
more efficient and dynamic person and if there is sufficient
material on record to show that the employee "rendered himself
a liability to the institution", there is no occasion for the Court
to interfere in the exercise of its limited power of judicial review."
H
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 181
BABU LAL JANGIR [A.K. SIKRI, J.]
26. With this we revert to the facts of the present case: A
In so far as period of 1978-1990 is concerned, the
respondent was charge sheeted in 19 cases. In few cases he
was exonerated and in some other cases he was given minor
penalty like admonition, stoppage of pay, annual grade 8
increment for a limited period. The gist of these cases is as
follows:
s. Charge Date Details of Date of Details of Remarks
No Sheet Charges Order decision
.
c
1. 1648 11.8.1978 Negligent 41717-2-79 Exonerated
Driving
2. 798 25.10.79 Recovered 2783/ Yearly
fare from 15 27.8.84 increment
passengers stopped D
without ticket and forfe-
-iture of
salary for
suspension
period
3. 2314 20.11.80 Corruption 3454/ Stoppage E
22.10.84. of yearly
increment
for one year
4. 1235 27.4.83 Absent from 1708/ Absolved
duty 7.4.86 from F
charges
without
intimation
5. 1035 31.3.83 Excess 1709/ Stoppage
consumption 3.4.86 of one/ two G
increments
6. 1754 13.6.84 Misbehavior 3453/ Absolved
with 22.10.84. from
conductor charge
.
H
182 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 7. 162 8.1.85 Absent from 5123/ Stoppage of
duty without 4.12.85 yearly
intimation increment
for one year
without
commutative
B effect and
forfeiture of
salar for
suspension
period
appeal No.
c 3588/
29.8.88
pending
8. 1798 4.4.85 Damage to
tyre
D 9. 2298 29.4.85 Absent from 5123/ Stoppage of
duty without 4.12.1985 one
intimation increment &
forfeiture of
salary for
suspension
E
period
10. 3928 26.2.85 Vehicle 830/ Stoppage of 1
accident 5.12.85 two
increments
without
F commutative
effect
11. 3763 1.8.90 Excess 68/14.2.94 Order for
consumption recovery and
of Diesel or warning
G for future
recovered
Rs. 132.60.
12. 3090 30.10.82 Different
types of
H complaints
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 183
BABU LAL JANGIR [A.K. SIKRI, J.]
13. 4669 30.10.85 Damage to 11830/ Stoppage of A
tyre 5.12.88 two
increments
without
commutative
effect and
forfeiture of B
salary for
the
suspension
period.
14. 316 23.1.86 Bad behavior 4953/ 1. Stoppage c
12.10.87 of one
increment.
Forfeiture of
salary for
the
suspension D
period.
2. Less
Diesel
average
15. 134 12.1.87 Demanding 11830/ Stoppage of E
money from 5.12.88 two
driver increments
without
commutative
effect
under F
consideration
16. 4745 1.11.85
17. 3361 13.7.97 Refusal to 706/ Absolved,
take vehicle 10.2.88 released the
salary for G
the
suspension
period
H
184 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 18. 2041 21.4.87 Negligent 2815/ Absolved
driving of 9.6.93 released the
vehicle salary for
suspension
period.
B 19. 3792/ 27.7.87 Less average 2686/ Recovered
of Diesel 5.5.89 Rs. 72/-
27. The aforesaid record projects the dismal picture. The
High Court has observed that the respondents have not been
able to show anything adverse in the career of the respondent
C after 1990 i.e. in last 12 years preceding the order of
retirement. These observations are not correct in as much as:
(a) There was an inquiry against the respondent for
which he was imposed the penalty of stoppage of
D increment for two years. He had made a
representation against this penalty on 5.11.1998
which was dismissed on 25.5.1998.
(b) Further another criminal case was also instituted
against him in the year 1999. Though outcome of
E this criminal case is not mentioned, fact remains
that the accident was caused by the Respondent
while driving the bus of the appellant Corporation,
and the appellant corporation had to pay heavy
compensation to the victims as a result of orders
F passed by MACT.
Thus even the service record after 1990 does not depict
a rosy picture. In any case, there is nothing to show his
performance became better during this period.
G
28. It hardly needs to be emphasized that the order of
compulsory retirement is neither punitive nor stigmatic. It is
based on subjective satisfaction of the employer and a very
limited scope of judicial review is available in such cases.
Interference is permissible only on the ground of non application
H
RAJASTHAN STATE ROAD TRANSPORT CORP. v. 185
BABU LAL JANGIR [A.K. SIKRI, J.]
of.mind, malafide, perverse, or arbitrary or if there is non- A
compliance of statutory duty by the statutory authority. Power
to retire compulsorily, the government servant in terms of
service rule is absolute, provided the authority concerned forms
a bonafide opinion that compulsory retirement is in public
interest.(See: AIR 1992 SC 1368) B
29. Accordingly, we have no option but to set aside the
impugned order of the High Court thereby upholding order of
the compulsory retirement. The appeal is allowed with no order
as to costs.
c
B.B.B. Appeal allowed.
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