Earlier "Adverse Remarks" can be considered for Compulsory Retirement

Even if the adverse remarks/record were made in the past, it can be taken into account for determining the 'overall performance' of an employee. This view has been taken by the Supreme Court of India (“Supreme Court”) in the case of Rajasthan State Road Transport Corp. & Ors. v. Babu Lal Jangir, decided on 16^th September, 2013. In this case, the pertinent question which arose for consideration was – whether the adverse entries/record of an employee, being not made in ‘immediate paste’, can be taken into consideration for ordering a premature/compulsory retirement? Answering the question in affirmative, the Supreme Court noted that while considering the premature retirement of an employee, it is the entire service record which is taken into consideration.

(Image Source: Thomas Carroll Group Website)

Facts: The respondent, Babu Lal Jangir, joined the services of the appellant, Rajasthan State Road Transport Corporation (“Corporation”), on the post of driver. On the recommendation of Screening Committee and Review Committee, an order was passed against the respondent thereby ‘compulsory retiring’ him from the service. Against this order, respondent filed a writ petition before the High Court of Judicature for Rajasthan (“High Court”). Through counter-affidavit, it was submitted by the appellant (appellant before the Supreme Court, i.e., Corporation) that the service record of the respondent showed a dismal performance, and hence, the order of compulsory retirement was justified. However, The single judge of the High Court held the order of compulsory retirement arbitrary on the ground that the impugned acts of misconduct, which showed dismal picture of performance, pertained the period 12 years prior to the order of retirement. This view of the single judge was upheld by the division bench of the High Court. Hence, the matter came before the Supreme Court.

Issues, Contentions and Findings of the Court

The High Court, before arriving at the decision, had relied heavily on Brij Mohan Singh Chopra v. State of Punjab 1987 (2) SCC 188. It was contended on behalf of the appellant that Brij Mohan Singh Copra (supra) was overruled in Baikuntha Nath Das & Anr. v. Chief District Medical Officer, Baripara & Anr.,1992 (2) SCC 299, and this was specifically recorded so in subsequent judgment in the case of The State of Punjab v. Gurdas Singh, 1998 (4) SCC 92. Rejecting this contention, it was noted by the Supreme Court that, in Baikuntha Nath Das (supra), the issue whether the consideration of adverse entries of remote past was inappropriate to compulsory retire an employee, was not touched or discussed. Instead, Brij Mohan Singh Chopra (supra) was overruled only in relation to the issue of ‘non-communication of the adverse reports’ but not otherwise.

Following this, the Supreme Court referred to the decision in Badrinath v.  Government of Tamil Nadu and Ors., 2000 (8) SCC 395, wherein it was held by the court that adverse remarks before promotion, though can be taken into account for considering compulsory retirement, are substantially weakened unless they are related to dishonesty. The view taken in Badrinath Case (supra) was not accepted by a three-judge bench in Pyare Mohan Lal v. State of Jharkhand and  Ors.,  (2010) 10 SCC 693. In Pyare Mohan Lal (supra), the court discussed circumstances in which the earlier adverse entries/ record would be wiped off.  It was held by the Court that earlier adverse entries do not become inadmissible or irrelevant merely because of a promotion. Such entries would still be relevant for reviewing the ‘entire record’ of an employee while deciding on his compulsory retirement.

Having discussed above position of law, the Supreme Court, in the instant case, made the following observation:

                                       “......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 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 compulsorily......”

Decision: The Supreme Court noted that the overall service record of the respondent was dismal in nature. On noting this, it observed that the High Court was not correct in stating that there was nothing adverse in the career of the respondent 12 years preceding the order of retirement. After analysing the position of law as regards earlier adverse remarks of an employee, the court finally allowed the appeal and set aside the judgment of the High Court.

On a separate note, the following important observation was also made by the court, which is significantly important:

                                       “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  of  mind,  malafide,  perverse,  or  arbitrary  or  if  there  is  noncompliance  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”

Hence, what is clear is that the order of compulsory retirement should not be reviewed by a court unless there are good reasons for doing so.