Braja Kumar Nayak vs State Of Odisha And Ors
2022 Latest Caselaw 2450 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                             W.P.(C) No.10010 of 2022
                 Braja Kumar Nayak                       ....            Petitioner
                                                    Mr. Laxmidhar Pangari, Adv.
                                               -versus-
                State of Odisha and Ors.                 ....     Opposite Parties
                                                        Mr. Biswajit Mohanty, SC
                                                             (for S & ME Deptt.)
                               CORAM:
                               MR. JUSTICE S.K. PANIGRAHI
                                           ORDER

Order No. 06.05.2022

01. 1. This matter is taken up through hybrid arrangement.

2. Heard.

3. In this writ petition, the petitioner has challenged the order of compulsory retirement dated 23.03.2022 passed by the opposite party No.1- Principal Secretary to Government of Odisha, School and Mass Education Department in gross violation of principle of natural justice. The said illegal and arbitrary actions cast serious stigma having negative consequences.

4. Learned counsel for the petitioner relies on some judgments of the Hon'ble Supreme Court. In the case of Allahabad Bank Officers Association and Ors. -vrs.- Allahabad Bank and Ors.1, at paragraph-17, the Hon'ble Supreme Court held as follows:

"17. The above discussion of case law makes it clear that if the order of compulsory retirement casts a stigma on the Government servant in the sense that it contains a statement casting aspersion on his conduct or character, then the court will treat that order as an order of punishment, attracting provisions of Article 311 (2) of the Constitution. The

(1996) 4 SCC 504

// 2 //

reason is that as a charge or imputation is made the condition for passing the order the court would infer therefrom that the real intention of the Government was to punish the Government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the Government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment.

Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it." In the case of Om Prakash Goel -vrs.- Himachal Pradesh Tourism Development Corporation Ltd, Shimla and Ors.2, at paragraph 4, the Hon'ble Supreme Court held as under:

"4. From the above decisions it can be seen that it is well-settled that in a case of an order of termination even that of a temporary employee the Court has to see whether the order was made on the ground of misconduct if such a complaint was made and in that process the Court would examine the real circumstances as well as the basis and foundation of the order complained of and if the Court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoided an enquiry as warranted by Article 311(2) of the Constitution, then such a termination is liable to be quashed. In the above mentioned decisions, the impugned termination order was accordingly quashed."

(1991) 3 SCC 291

// 3 //

In the case of The State of Uttar Pradesh -vrs.- Madan Mohan Nagar3, at paragraphs-10 and 11, it has been held by the Hon'ble Supreme Court which reads as under:

"10.Later, he observed:

"It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal."

11. It seems to us that the same test must apply in the case of compulsory retirement, namely: does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsorily? In the present case there is no doubt that the order does cast a stigma on the respondent."

In the case of State of Gujarat -vrs.- Umedbhai M. Patel4, at paragraph 11, the Hon'ble Supreme Court has laid down that the law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized. Paragraph-11 of the said case is quoted below:

"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:

AIR 1967 SC 1260

(2001) 3 SCC 314

// 4 //

(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead- wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure."

5. In such view of the matter, let notice be issued to the opposite parties.

6. Mr. Biswajit Mohanty, learned Standing Counsel for the Department of School and Mass Education waives of notice on behalf of the opposite parties. Required number of copies of the brief be served on him within three working days hence, who obtain instructions and file reply.

7. List this matter on 20th of June, 2022.

( S.K. Panigrahi) Judge BJ