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Judgment
Lingaraja Rath, J.—Both these appeals arise out of the same judgment respectively preferred by the respondent and the appellants in W.P. No. 6987 of 1989 and hence are disposed of by this common judgment. For the sake of convenience the appellants in W.A. No. 44 of 1993 are referred in the judgment as the appellants and the respondent in that appeal as the respondent. So far as W.A. No. 158 of 1993 is concerned the parties thereto are to be respectively referred when the consideration of that appeal is taken up.
The order of compulsory retirement of the respondent passed under Rule 56(j)of the Fundamental Rules having been set aside by the learned single Judge this appeal has been preferred. The respondent, an Ex-Army personnel born on 5-4-1939 was appointed as Inspector of CISF (Central Industrial Security Force) on 21-2-1972 in which post he was confirmed on 25-11-1974. He was promoted as Assistant Commandant on 15-2-1975 and was regularised in the post on 1-1-1981. The order of compulsory retirement was passed on 12-5-1989 effective from 21-6-1989. It is not known whether the respondent preferred any departmental appeal against the order there being no averment in the writ petition or in the counter-affidavit in that regard but however there is no stand taken by the appellants that the respondent had not exhausted the departmental remedies before coming before the Court. The writ petition was filed making out the case that the compulsory retirement was exclusively based upon adverse ACRs from the years 1982 to 1984. The adverse entries had been mala fidely made at the instance of the Ex-Director General of CISF, Mr. Surendra Nath who was a close friend of the respondent''s father-in-law who was a rich man and against whose wishes he had married his daughter. Mr. Surendra Nath had used his influence for the purpose on the DIG at Madras, the Assistant Inspector General who was also holding additional charge of Commandant and the Commandant at Sriharikota, all of whom were named, to make adverse entries in the confidential reports during the period 1982 to 1984. The service record of the respondent was otherwise uniformly good throughout and he had earned citations from 1972 onwards from the respective heads of Industries where he had been posted but that the Review Committee making the recommendation for his retirement did not take those into account. The respondent had also never been placed under any departmental proceedings. The retirement for such reasons could not be said to be in public interest.
In setting aside the order of Compulsory retirement the learned single Judge held the service career of the respondent to have been uniformly good excpt for the entries in 1982 to 1984 and the citations received by him to have been not taken into account. Exception was also taken to the appellants having not taken any decision under Paragraph II (6) (i) of the Instructions regarding premature retirement of Central Government Servants issued in Government of India, Ministry of Home Affairs, Office Memorandum No. 25013/14/77 - Estt. (A), dated the 5th January, 1978, referred hereinafter as "the Instructions", as to whether the respondent could have been at least retained in the lower post from which he was promoted if he was not suitable to be continued as Assistant Commandant.
In arguing the appeal Mr. R.S. Murthy, learned counsel for the appellants has submitted the impugned judgment to be against the weight of the authority of the decision in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, which held the decision to compulsorily retire an employee as dependent upon the subjective satisfaction of the authorities regarding his being no more useful to the service and that, in reaching the decision the service records of the entire career of the employee is to be taken into account and not merely of some years. The learned counsel also submitted that the observation in the judgment of the respondent''s service career being uniformly good except for the period 1982 to 1984, as factually not correct and there being no material to support the finding.
During the course of the hearing we allowed an application, WAMP (SR) No. 69640 of 1995 of the respondent for production of the Review Committee Report. In pursuance of the direction Mr. Murthy made available copies of the Review Committee Report as also the gist of the Confidential Character Rolls Entries of the respondent. The Committee consisted of the Joint Secretary, Department of Industrial Development as the Member and of the Home Secretary, Government of India as the Chairman. The proceedings show the Under Secretary (Personnel) to have put up the note on 6-4-1989 of the DG, CISF not to have recommended for the respondent''s retention in service though he had certified of no vigilance/disciplinary proceedings to be either pending or contemplated against him. He stated in the note that the case may be first referred to the Joint Secretary for recording his assessment as Member of the Review Committee and on return the papers may be put up to the Home Secretary for his recommendation as Chairman of the Committee. The personal records of the respondent consisting of the ACR Dossier, his personal file and service book and resume of his ACRs from 1972 onwards with a statement showing the adverse remarks were sent to the Joint Secretary who recorded the remarks as follows on 21-4-1989:
"I have gone through the records of Shri A.S. Bhatti, Asst. Commandant, carefully. He has earned a number of adverse remarks during the last 6-7 years. The record for the period from 1-4-1981 to 30-9-1981 refers to his short temper and inability to tolerate difference of opinions. The records for the period from 1-4-1982 to 31-3-1983 (in two spells) speak of his unwillingness to accept responsibility. He also had a tendency to make false complaints against his superiors. The record for the period from 1-4-1983 to 30-9-1983 refers to his parochial tendencies and also his encouragement of disaffection amongst the Section of the force towards deputationists (IPS officers). He has again earned adverse remarks for the period 7-10-1983 to 31-3-1984 for his negative approach, for the period 1-4-84 - 31-8-84 for his short temper and rudeness, for the period 1-9-1984 to 31-3-1985 for harassing his subordinates. As a matter of fact, I have only highlighted certain important portions of the adverse remarks for these periods. Going back, I find from 1972, he has been earning adverse remarks off and on for his shorttemper and bad behaviour. I do not consider it is in public interest to retain him in service beyond the age of 50 years, i.e., I recommend that he be retired on attaining 50 years age, in public interest."
Below the remarks of the Joint Secretary the endorsement of the Home Secretary saying " I agree with the above opinion", was made on 24-4-1989. The conclusion reached in the impugned judgment of the service career of the respondent to have been uniformly good except for the years 1982 to 1984 is obviously not correct in view of the remarks made in the report but then the judgment had ben rendered without the benefit of the report. Because of such fact Mr. Y. Suryanarayana learned counsel for the respondent has sought to assail the order of compulsory retirement on grounds, (1) that the decision to retire the respondent was not based on any proper recommendation of the Review Committee as the Committee never met in a meeting; (2) the adverse remarks prior to 1976 and 1981 were not available to be taken into account as the respondent had been allowed to cross the first and second efficiency bars in the time-scale of pay in those years;(3) that the citations earned by the respondent were not considered by the Review Committee and that (4) the decision in Baikuhthanath''s case (1 supra) has no precedent value in so far as it decides that in effecting orders of compulsory retirement the entire service record of the officer is to be taken into account, as the two earlier decisions in Brij Mohan Singh Chopra Vs. State of Punjab, and Baidyanath Mahapatra Vs. State of Orissa and Another, had held, on the authority of Larger Bench decisions of the Supreme Court, that records of 5 to 10 years prior to the order were only to be considered. Besides it has also been urged that the competitive authority has the duty, while considering the case of an officer for compulsory retirement under Rule 56 (j), whether he could be retained in the next below post.
Before the respective questions as urged by the learned counsel are taken up, it must however be said that there is absolutely no foundations for the averment in the writ petition regarding the adverse entries of 1982 to 1984 to have been mala fidely made at the instance of the former Director General. It is conceded by Mr. Y. Suryanarayana that the adverse entries had been communicated to the respondent but that though he had made representations against those, yet he had never urged such mala fides at any time earlier and indeed such allegations have only been made for the first time in the affidavit of the writ petition. The concerned DIG, AIG and the Commandant who have been named in the petition and are alleged to have mala fidely made the entries at the instance of the Ex-DIG have not been impleaded as parties. We hence reject such plea of the respondent.
It is the common case of the parties that the procedure for compulsorily retiring an employee prior to attaining the age of superannuation is as provided in the Instructions. Part II of the Instructions lay down the criteria, procedure and guidelines in the matter and provides in sub-clause (2) that Committees shall be constituted in each Ministry/Department/Office as shown in Annexure II, to which all such cases shall be referred for recommendation as to whether the officer concerned should be retired from service in the public interest or whether he should be retained in service.
Sub-clause (3) lays down the criteria to be followed by the Committee in making their recommendations. On the recommendation of the Committee being made, the appropriate authority is to take further action in the matter. It is undoubtedly true that an action of compulsory retirement is primarily based on the recommendation of the Committee set up for reviewing the case of the Officer. The question raised by the learned counsel is whether the Committee recommendations can be made, without it meeting for the purpose, by way of circulation of papers. The word "Committee" is explained in Wharton''s Law Lexicon as certain persons elected or appointed to whom any matter or business is referred, either by a legislative body or by any corporation or society, though from the Stroud''s Judicial Dictionary it appears of mere being judicial opinion that a committee does not necessarily consist of more persons than one; and that it simply means a person or persons to whom anything is committed. It thus appears that though there may be single member committees yet usually the word convey the concept of a multi member body of at least two persons. Hence when a body of two or more persons is set up as a committee to which certain function is entrusted, it is done with the expectation of having the benefit of the deliberation and interaction of members constituting the committee on the subject at issue and submitting their recommendation or report on the basis of such joint action unless of course the authority constituting the committee itself devises a separate procedure to be followed or leaves such authority to the members of the committee or the Chairman thereof. The functioning of such a multimember committee postulates decisions to be taken in the meeting of the committee in the absence of an exception to the contrary in terms of its constitution or power for such exception reserved therein. Meeting of the committee would likewise would mean deliberations of the committee being made in an actual meeting held unless a different procedure is authorised.
The word "meeting" has been explained in Mozley and Whiteley''s Law Dictionary as "a gathering or assembly of persons, convened for the conducting of business, e.g. of a company, or relating to the affairs of a bankrupt". In Wharton''s Law Lexicon the word is shown to have the meaning "an assembly of persons whose consent is required for anything to decide, by a proper majority of votes, whether or not that thing shall be done". The meaning as such would be the same if only two persons are involved in the committee instead of more where the question of majority of votes would arise. It cannot be said that only because a committee consists of two persons and in a meeting of it the question of majority of votes would not arise, the "Committee" should not mean an assembly of the members, as the meaning of the word must have uniform application. The Corpus Juris Secundum deal with the words "meet" and "meeting" in Volume 57 and explains, relying upon Ga.-Stripling v. State, 40, S.E. 733, 114, the word "meet" as meaning as a verle, to come upon or against, front to front, as distinguished from contact by following and overtaking. Reference was also made to Pitts v. State, 16 S.W. 189, 190, 29 Tex, App. 374 to show that the word means to come together by mutual approach; to fall in with another; to come face to face; to converge. The word "meeting" is shown to have the meaning, as a noun, as "A number of people having a common duty or function who have come together for any legal purpose, or the transaction of business of a common interest; an assemblage". Reference in the context was made to the decisions Cal.-People v. Mintz, 290 P. 93, 100, 106 Cal. App. 725.
In the decision in Ved Prakash v. Municipal Corporation ILR 1958 (A.P.) 38 : 1958 (1) An.W.R. 22 it was observed:
"Meeting implies the coming together of persons for certain purposes or counsultations."
The decision was referred in a later case S. Seetha Ramaiah Naidu Vs. Ongole Co-operative Bank Ltd. and Another, wherein the view was expressed: "what follows from the above said definition of the meeting as well as the principles relating to quorum is that a meeting can be said to be a meeting only when it meets for the purpose of discussing and deciding something for which the meeting is called", after referring to a passage in the book of Law and Practice of Meetings by Frank Shackleton defining meeting as a gathering or assembly of a number of people for purposes of intercourse, entertainment, discussion, legislation and the like or for the purpose of the discussion of matters of public interest or for the purpose of the expression of views on such matters.
Explaining the concept of meeting when more than one person are involved it was observed in Sharp v. Dawes 1876 Q.B.D. 26:
"..............and the word "meeting" prima facie means a coming together of more than one person. It is of course, possible to show that the word "meeting" has a meaning different from the ordinary meaning, but there is nothing here to show this to be the case".
The meaning of the word "meeting" was examined by the Punjab High Court in Amin Chand and Others Vs. The State of Punjab, and though the case arose in a different context, yet explaining the ordinary meaning of the word, the meaning given in the Shorter Oxford Dictionary was referred to say that the word in its individual sense means a "sitting on a particular day" and in its cumulative or collective sense means a conglomeration of meetings held in a particular session and therefore "a session".
Similar view was expressed in the decision in Dattatraya Devidas Didolkar and Others Vs. Vice Chancellor, Nagpur University, Nagpur and Others, saying "the word "meeting" prima facie connotes coming together of persons for certain purposes. In substance, it is a gathering of persons with a specific object in view".
The necessity of the collective exercise of mind by a committee in its functioning was recently emphasized by the Supreme Court in the decision in Nedurimilli Janardhana Reddy Vs. Progressive Democratic Students'' Union and Others, where in exception taken by the High Court to the report of the expert committee where it itself had not conducted any inspection and only the individual members had independently and separately conducted the inspections was upheld by the Apex Court while setting aside the orders of the Government saying that the entire exercise of the Government assumed a dubious nature for which the contributory factors, inter alia, were, the casual and make-believe manner in which the expert committee made the spot inspection, want of any record to show that any collective mind was applied for making the report and the recommendations on the basis of the spot inspection which was evidently done by individual members of the committee independently.
The Instructions which authorise the constitution of the committee does not authorise the opinion of the committee to be reached by a process of individual considerations by its members and an agreement reached by the circulation of the opinion of members to members. No power was also saved for the members of the committee themselves to devise such a procedure. The opinion of the committee as reached was devoid of the benefit of the converging of the mind of both the members on the facts relevant to the issue and consideration made simultanesously. The discussion and interaction between the two members, the confabulation which is essential feature of the meeting, was absent. A decision reached by an individual and ratified by another is in nature different than a decision reached in an assembly of persons on an in depth discussion between the members where each one may project his views for the appreciation of others. In a live interaction of views, where ideas and thoughts may brush or rub with each other, new approaches and appreciations may emerge, new dimensions of the questions or issues may surface, and conclusions which might have been reached individually by member or members may be viewed differently. In only perusing the views expressed by one, all the aspects of the case may not come out. This is not to say that decisions cannot be reached by committees in any case without actually meeting, but only to emphasize the difference of the two procedures and that the ordinary procedure of committees is to take decisions in meetings unless a separate procedure has been devised by the authority constituting the committee or in constituting the committee a power has been reserved for the committee to devise its own procedure.
In the present case not only that that Instructions devised any such procedure but also the report of the review committee shows no such procedure to have been devised by the committee itself. Instead it is only the Under Secretary of Ministry of Home Affairs who took the decision that the case may be first referred to to the Joint Secretary and on return the papers be put up before the Home Secretary. The procedure adopted was wholly unauthorised and hence the purported report which forms the basis of the order of compulsory retirement cannot be said to be the report of the committee as is contemplated by the Instructions.
Another submission made by Mr. Y. Suryanarayana has also substantial force. Paragraph II of the Instructions, as has been seen, lays down the "Criteria, Procedure and Guidelines" for reviewing the cases of the Government employees for taking action under F.R.56 (j) or Rule 48 of the C.C.S. (Pension) Rules 1972 or C.S.R. 459(h) and also lays down the criteria to be followed by the Committee in making their recommendations. Paragraph II (3) (a) and (b) and (6) (i) and (ii) may be usefully extracted:
"II (3) (a) Government employees whose integrity is doubtful, will be retired.
(b) Government employees, who are found to be in effective will also be retired. The basic consideration in identifying such employee should be the fitness/competence of the employee to continue in the post which he is holding. If he is not found fit to continue in his present post, his fitness/competence to continue/in the lower post, from where he had been previously promoted, should be considered.
(6) (i) In case, the appropriate authority, after the relevant review, comes to the conclusion that the officer is not fit for being retained in the present post, but could be retained in the next lower post from which he was promoted, a notice in the prescribed form should be served in such a case on the employee retiring him from service in pursuance of the provisions of the relevant rule. Simultaneously, it may be explained to him in a covering letter that his continuance in service beyond the age of 50/55 years or after the completion of 30 years of service, as the case may be, could be considered, if he is willing to revert to the lower post held by him previously. In case, he indicates his willingness to work in the lower post and gives a written request for being so reverted he may be retained in service and continued in the lower post.
(ii) Employees who seek reversion to lower posts in lieu of premature retirement should be made eligible for consideration for promotion after they have put in a period of two years in the lower post. The promotion will not be automatic but such employees could be considered for promotion along with others in accordance with the normal rules, by the Departmental Promotion Committee or other Selecting authority on the basis of subsequent record in the lower post.
(G.I. Dept. of Per. & A.R. O.M. No. 25013/4/78-Estt. (A) dated the 9th August, 1978)".
A reading of the provisions show the scheme that the committee shall first consider whether the integrity of the employee is doubtful in which case the recommendation must be for his retirement. The committee is to next consider whether even if the officer is not of doubtful integrity yet he is ineffective for the post, employing the criteria, for reaching such conclusion, of the fitness/ competence of the employee to continue to hold the post which he is then holding. If the opinion is reached that the employee is fit to continue, he is not to be retired as being not found ineffective in the post. But if he is found not fit to continue to hold the post, he should be next considered whether he has the fitness/competence to hold the lower post from which he was promoted. Hence the recommendation for compulsory retirement is to be made if he is not found fit or competent to continue either in the post he is holding at the time of the consideration or even in the post from which he was promoted. The recommendation for compulsory retirement is to show the committee to have reviewed the employee''s case from both the aspects and yet to have come to the conclusion that he should be compulsorily retired. When the report comes before the appropriate authority it has to come to the conclusion, after making the relevant review taking the report into consideration, as to whether the officer is not fit to continue in the post he was holding and if so whether he could be retained in the post from which he was promoted. If opinion is formed that he could be retained in the lower post, action has to be taken by simultaneously issuing notice of retirement from the present post and also explaining to him by another latter that he could be retained in case he is willing to be reverted to the lower post held by him previously. The instruction also vests a right in the employee, who is willing to continue in the lower post, to be considered for promotion after two years. The consideration made by the Joint Secretary which was agreed to by the Home Secretary does not show such aspects of the instructions to have been kept in mind. There was no consideration by them regarding the suitability of the respondent for continuance in the post of Inspector from which he was promoted even though there was nothing against his integrity. Apparently the consideration by the committee was made without following the criteria and guidelines laid down.
The other submissions urged by Mr. Y. Suryanarayana however do not find any persuation in me. Though a large number of decisionns have been cited on either side on the question whether adverse remarks recorded in the Confidential Character Rolls prior to the crossing of the efficiency bar in the time scale of pay are wiped out or their effects nullified because of the crossing of the efficiency bar, yet we must hold the submission to be no longer available to be raised in cases of compulsory retirements in view of the decision of the Supreme Court in Baikuntha Nath Das v. Chief Dist. Medical Officer, Barippa (1 supra) wherein it was authoritatively laid down that the order of compulsory retirement is a matter of subjective satisfaction of the authority and that in making the order the entire record of service of the employee has to be considered. Thus consideration to be made in the matter of compulsory retirement is distinctly different from consideration made in cases of promotion or in the matter of imposition of penalties. The adverse remarks in the C.C.R. entered prior to crossing of the efficiency bar are as such also available for consideration though of course as the very decision points out, more importance is to be attached to the performance of the employee during the later years. We are also not impressed with the submission, faintly raised, of Baikunthanath Das''s case (1 supra) as not having precedent value only because the decision in Brij Mohan Singh Chopra (2 supra) and Baidyanath Mahapatra (3 supra) were based on decisions of Larger Benches. Both the decisions having been considered in Baikunthanath Das''s case (1 supra) and explained and departed from in the latter case, that has to be taken as having the precedent value over those two cases. The argument was also not developed by Mr. Y. Suryanarayana and hence has to be left at that.
Now coming to W.A. No. 158 of 1993 preferred by the writ petitioner A.S. Bhatti it is seen that the learned single Judge setting aside the order of compulsory retirement directed the respondents in the appeal to take steps within a month from the date of receipt of the order to continue the writ petitioner in service in the rank he was holding on the date of his retirement or alternatively explore the possibilities of accommodating him in the next lower category by seeking his consent as provided for in the Rules. He also further directed that for the purpose of grant of retirement benefits the entire service has to be taken into consideration without any break in service. After the orders were pronounced the learned standing counsel for the Central Government sought clarification from the Court as regards the payment of the backwages. A clarification was made in the judgment with the learned Judge observing that as direction of the judgment was that the service of the appellant should be treated as continuous for the purpose of granting retirement benefits on his reaching the age of superannuation, it only meant that he was not entitled to any monetary benefits for the period from the date of his compulsory retirement from service till the date of joining duty in accordance with the judgment. It is that part of the judgment denying the appellant the payment of backwages which is assailed in the writ appeal.
The retirement of the appellant was done on 15-5-1989 and as is found from the judgment, had he continued in service his superannuation would have been on 15-5-1997. An order of interim suspension of reinstatement of the appellant and continuance in service was passed at the instance of the appellants in W.A. No. 44 of 1993 in WAMP No. 81 of 1993 with direction to pay the appellant provisional pension as per Rules. It is a case where even though the appellant was entitled to come back to service after reinstatement was directed by the learned single Judge, yet at the instance of the appellants the reinstatement was not given effect to. The appellant was deprived of rendering service and earning the pay and allowances due to him eventhough, it has to be assumed, he was willing to join and serve.
In G. T. Lad and Others Vs. Chemical and Fibres of India Ltd., the Apex Court held that where reinstatement was directed by the Court, the entire backwages must follow as a matter of course though there is a discretion in the Court, having regard to special circumstances if any, to modify the normal rule.
Desh Raj Gupta Vs. Industrial Tribunal IV, U.P., Lucknow and another, was a case where an order of dismissal passed by the management was declared illegal but the punishment was upheld subsequently by the Tribunal. The Court deciding about the entitlement to backwages held the appellant as entitled to salary from the date of dismissal to the date of award.
In Om Prakash Goel Vs. The Himachal Pradesh Tourism Development Corporation Ltd., Shimla and another, where the services of an Accountant of the Corporation had been terminated and lateron he was practising as a lawyer, the Court held, as the termination order was quashed, him being entitled to full backwages upto the date of his enrolment as lawyer and thereafter to backwages at the rate of half the subsistence allowance permonth. The entitlement to the backwages was reduced since there was controversy regarding the amount he had received from legal practice.
There have been of course cases where on reinstatement full backwages have been denied because of specific factors but the normal rule, where there are no diluting circumstances, is payment of full backwages. In the present case the compulsory retirement of respondent is not being set aside on any technical ground but for the reason of proper consideration having not been made and the decision not to have been properly reached. The respondent has also been kept out of employment in spite of having been successful in the writ petition because of the appeal preferred by the appellants. In the order impugned in the appeal no circumstances have been referred to which should disentitle the appellant from receipt of the full backwages. In D.K. Yadav Vs. J.M.A. Industries Ltd., the backwages were reduced by 50 per cent since it was found that the appellant in that case was also blameworthy for the impugned action. There are no such factors present in the case on the hand. The appellant is hence entitled to full backwages from the date of his compulsory retirement till the date he would have normally superannuated i.e. 15-5-1997 and to pensionary benefits thereafter on the basis of the pay that he would have been entitled last drawn.
In the result Writ Appeal No. 44 of 1993 is dismissed and Writ Appeal No. 158 of 1993 is allowed with costs. Hearing fee: Rs. 1,000/-.
Leave refused.