Baishnab Charan Mohanty vs State of Orissa and Others

P.K. Mohanti, J.—Petitioner challenges the order of his compulsory retirement dated 31-12-1973 (Annexure_5) passed by j the Superintendent of Police, Cuttack under the amended proviso to Rule 7l(a) of the Orissa Service Code.

The material facts may be shortly stated as follows:

Petitioner was born on 1-7 -1922. He entered Government service as a Police Constable and joined in the said post on 13-7-1942. He was promoted as an Assistant Sub-Inspector of Police on 13-7-1947 and was confirmed on that post in the year 1964. He was allowed to cross the Efficiency Bar in the year 1970. He got two good service marks, three money rewards and 31 commendations during his service career. While he was posted in the Mangalabag Police Station, Cuttack he was served with-a notice dated 19-7-1973 (Annexure-I) requiring him to retire from Government service with effect from the date of expiry of three months from the date of the notice.

The decision for compulsory retirement was taken on the report of the Screening Board which runs as follows:

Knowledge of law and procedure is miserably poor.

Recommended retirement.

On 19-8-1973 the Deputy Inspector-General of Police, Central Range, Cuttack (opp. party No. 3) held inspection of the Mangalabag Police Station. In course of inspection the Petitioner represented to opp. party No. 3 that the order of his compulsory retirement was not justified. Thereupon opposite party No. 3 directed the Superintendent of Police (opp. party No. 4) to examine the case of the Petitioner carefully and to submit a report. The relevant portions of the report submitted by the Superintendent of Police, Cuttack (opp. party No. 4) to the D.I.G. of Police (opp. party No. 3) are extracted below:

(2). A.S.I. Baishnab Charan Mohanty joined service on 13-7-1942. His date of birth is 1-7-1922. During his service he got two G.S. marks, four money rewards and 31 other rewards. He had one major punishment and five minor punishments prior to three years. The commendation of the Board is as follows: ''Knowledge of law and procedure is miserably poor, recommended retirement. A copy of the representation of the A.S.I. is enclosed. Inspector, Mangalabag under whom the A.S.I. is serving at the moment, had stated that the A.S.I. discharged his duty very satisfactorily. They City D.S.P. had recorded that the A.S.I. was obedient and sincere and recommended for, his retention in service. I understand that the A.S.I. has three small school going children and he is the only earning member of the family. Retirement at this stage may lead to stoppage of their education and add misery to his family. Even though the knowledge of the A.S.I. is very poor, he is reported to be very sincere and hard working and willing worker within the limitations. He is learnt to be working at the best of his abilities. Hence I suggest for his retention also. If you deem fit you may please pass an order accordingly. He had received the retirement notice on 23-7-1973 and would be completing three months on 22-10-1973

(vide Annexure_9.)

On a consideration of the above report of the Superintendent of Police, Cut tack, the D.I.G. of Polke cancelled the notice of retirement vide Annexure-4. The order of conciliation was duly communicated to the Petitioner. Thereafter the A.I.G. of Police (Adm.), Orissa, Cuttack in his - D.O. letter dated 15-10-1973 wrote to the D.I.G. of Police, Central Range, Cuttack as follows:

Kindly refer to S.P., Cuttack''s D.O. No. 846/Con. dated 21-10-1973 regarding retirement of A.S. Is. and Head Constables of his district who had completed 30 years qualifying service or attained the age of 50 years.

The Contents of the D.O. give the impression that the S.P. has changed his mind on the report of his subordinate officers and come up to you for orders to allow two of the A.S. Is. namely Gokul Ch. Sukla and Baishnab Ch. Mohanty to continue in service beyond the target date of 20-10-1973. This is not in keeping with the spirit of the rule or the final decision taken by him in a Board specially convened for the purpose. I may bring to your kind notice that this being a condition of service under the rules, the decision taken about it should be definite without leaving any room for further consideration. The decisions of the law Courts give the impression that no appeal lies against such retirement from service unless there has been any miscarriage of justice or omissions/commissions.

There was a reference in this regard from Government and after due examination they were informed that the action taken by the S.P. was fully justified under the existing rules. In view of this commitment, it would not be proper to allow the two A.S. Is. to continue in service.

The Inspector-General desires you to take appropriate action in the matter under intimation to this head quarters.

(Vide Annexure-6).

Following the directions contained in the above letter, the D.I.G. of Police, Central Range, Cuttack directed the'' Superintendent of Police, Cuttack (opp. party - No. (4) to compulsory retire the Petitioner from service with effect'' from 31-12-1973 and in pursuance of this order the Petitioner was made to retire on 31-12-1973 as per the orders of opposite party No. 4 in Annexure 5.

Petitioner''s contention is that the notice of retirement covered by Annexure 1 was issued by the Superintendent of Police by non-application of mind and was based on no material. The notice was rightly cancelled by the D.I.G. of Police and the Petitioner was allowed to continue after expiry of the period of notice. But the subsequent order of retirement coveted by Annexure 5 was made on irrelevant considerations and as such it is liable to be quashed.

The contention raised on behalf of the opposite parties is that the Superintendent of Police, Cuttack being the appointing authority was competent to take a decision regarding compulsory retirement of the Petitioner. His decision in the matter was final and no appeal lies against the same. Before expiry of the notice period, the Petitioner personally, represented to the D.I.G. of Police, Central range who called for a report from the Superintendent of Police, Cuttack. On humanitarian grounds the Superintendent of Police, Cuttack referred the case for reconsideration. The D.I.G. of Police, Central Range by mistake and under incorrect appreciation of the spirit of the relevant rule cancelled the notice served on the Petitioner without taking into account the fact that he was not competent to do so and he had no jurisdiction in the matter. When the irregularity was pointed out to him by the Inspector-General of Police through the A.I.G. of Police, he cancelled the order after proper probe into the matter and accordingly the Petitioner was made to retire from service with effect from 31-12-1973.

Two questions arise for consideration;

(1) Whether the D.I.G. of Police, Central Range, Cuttack was competent to cancel the notice of retirement served on the Petitioner.

(2) Whether the order of retirement in Annexure 5 was validly made.

With regard to the first question, it is to be noted that no appeal is provided either in the Police Manual or in the Orissa Service Code against an order of compulsory retirement made in pursuance of the amended proviso to Rule 71(b) of the Orissa Service Code. The learned Counsel appearing for the Petitioner sought to support the order of cancellation of the notice by virtue of the provisions of Rule 853 of the Orissa Police Manual, Volume I. The rule runs thus:

Power to call for, records-The Governor, the Inspector General or the Deputy Inspector-General may call for the proceedings in any case, even where no appeal lies, and pass such orders as may seem fit.

The rule occurs in Chapter XXV which deals with departmental punishments. In the context of the rules occurring in Chapter XXV it appears sufficiently clear that the Governor, the Inspector-General or the Deputy Inspector_General may call for only the proceedings of a case pertaining to punishment. The legal position is well settled that an order of compulsory retirement of the present nature does not fan within the meaning of the expressions "Dismissal" or "Removal" in Articles 311 and hence it is not a punishment. The object behind compulsory retirement under the amended proviso to Rule 7l(a) of the Orissa Service Code is to get rid of the service of a servant and not to punish him. Therefore, the provisions of Rule 853 of the Orissa Police Manual, Volume I is not helpful to the Petitioner.

An order of compulsory retirement has got to be made by an authority on whom the power to pass such an order is conferred. The power ordering compulsory retirement is a statutory power and therefore, It should be exercised by the authority which is authorised by the rules to pass such an order. The power cannot be exercised by any other authority including a superior officer. Although sufficient opportunity was allowed to the learned Counsel for the Petitioner he has not been able to satisfy us that the D.I.G. was authorised by any rule to interfere with the decision of the appointing authority regarding compulsory retirement of an A.S.I. of Police. Admittedly the Superintendent of Police was the appointing authority of the Petitioner and was competent to pass an order of compulsory retirement. The D.I.G. of Police, Central Range had therefore no jurisdiction to cancel the notice of retirement issued by the appointing authority. We accordingly hold that the order of cancellation ",passed by the D.I.G. of Police is invalid.

The Petitioner is, however, entitled to succeed on another ground. The earlier decision of the Superintendent of Police, Cuttack for compulsory retirement of the Petitioner appears to have been taken by non-application of mind. On a re-consideration of the matter, he submitted the report in Annexure 9 mentioning therein that the Petitioner was very sincere, hard working and willing worker and that he was working to the best of his abilities. He suggested to the D.I.G. of Police for issue of an order for retention of the Petitioner in service. It clearly establishes that his earlier decision was due to non-application of mind that he had not formed the requisite opinion for compulsory retirement of the Petitioner. His subsequent order in Annexure 5 for compulsory retirement of the Petitioner was passed on irrelevant considerations. He appears to have passed the order in pursuance of the direction of the Inspector-General of Police contained in Annexure 6. There is no material in Annexure 6 as to the unsuitability and inefficiency of the Petitioner. The reasons assigned by the Inspector-General of Police for his aforesaid direction are that the law Courts are reluctant to interfere with the cases of compulsory retirement and that a commitment had been made to the Government that the earlier decision of the Superintendent of Police, Cuttack for compulsory retirement of the Petitioner was justified under the existing rules. It is therefore manifest that the directions of the Inspector-General of Police were issued on extraneous considerations and the order of the Superintendent of Police, Cuttack in Annexure 5 having been based thereon it cannot be sustained in law.

The result therefore is that the writ a petition is allowed and the order in Annexure 5 is quashed. The Petitioner shall be deemed to be continuing in service until the appropriate authority requires him to retire under the amended proviso to Rule 71(a) of the Orissa Service Code. He is also entitled to his arrears of pay and allowances. A writ of certiorari be issued accordingly. There would he no order as to costs.

G.K. Misra, C.J.

I agree.