1989 JTR(SC) 406
1990 AIR(SC) 494 ; 1989 2 AWC 1447 ; 1990 CriLR 25 ; 1990 1 Crimes(SC) 26 ; 1990 CrLJ 320 ; 1990 1 DMC 36 ; 1989 59 FLR 453 ; 1991 1 GLH 118 ; 1990 1 HinduLR 272 ; 1989 3 JT 376 ; 1989 4 JT 318 ; 1990 1 MhLJ(SC) 32 ; 1989 2 OLR 285 ; 1989 2 Scale 1128 ; 1989 2 Scale 230 ; 1989 Supp2 SCC 248 ; 1991 SCC(Cri) 142 ; 1991 SCC(L&S) 952 ; 1989 Supp2 SCR 165 ; 1989 4 SLR 226 ; 1989 2 UJ 563 ; 1990 1 UJ 129 ; 1989 2 UPLBEC 319 ; 1989 KHC 1111
SUPREME COURT OF INDIA
BEFORE K.N. SINGH AND M.H. KANIA, JJ.
S. MAHESWAR RAO
Versus
STATE OF ORISSA AND ANOTHER.
Civil Appeal No. 3051 of 1989 {From the Judgment and Order dated December 21, 1987 of the Administrative Tribunal, Orissa in T.A. No. 162 of 1986}
Decided on 10-8- 1989
Advocates appeared
P.P. Rao, Senior Advocate (C.S.S. Rao, Advocate, with him) for the Appellant; P.N. Misra and A.K. Panda, Advocates, for the Respondents.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.482
INDIAN PENAL CODE : S.498(a), S.496, S.494, S.120(b), S.112
ORISSA SERVICE CODE : R.71(a)
(A) The instant appeal engages the interplay of Orissa Service Code rules, Indian Penal Code provisions on misconduct, and the Administrative Tribunals Act framework governing premature retirement from state service. The authority to initiate premature retirement under Rule 71(a) of the Orissa Service Code is contingent upon a Review Committee evaluation that must respect due process, including the opportunity to represent adverse entries. The Indian Penal Code sections on fraudulent misrepresentation (Section 494), criminal breach of trust (Section 496), and wrongful restraint (Section 498(a)) provide the penal backdrop against which service misconduct is assessed, while Section 120(b) and Section 112 address criminal conspiracy and sentencing principles. The power of the High Court under Section 482 of the Code of Criminal Procedure to ensure justice and natural justice further supplements the supervisory jurisdiction over quasi-judicial bodies, and the Orissa Service Code Rule 71(a) specifically governs retention and compulsion of service matters.
(B) Key legal principles include the duty to afford a reasonable opportunity of hearing before adverse administrative findings are acted upon, the non-application of pending representations if the time for representation has not expired, the disqualification of a decision-maker under the principles of natural justice, and the requirement that administrative committees must not rely on uninvestigated adverse remarks when making detrimental orders.
Facts of the case:
The appellant, serving as Superintending Engineer (Electrical) in the Orissa State Government, completed 50 years of age and underwent a Review Committee assessment for retention under Rule 71(a) of the Orissa Service Code. Adverse entries for the years 1980-81, 1981-82, and 1982-83 were communicated to him on July 29, 1983. While representation against these entries was pending and within the six-month window, the Review Committee recommended premature retirement, a recommendation followed by the State Government via an order dated November 10, 1983, leading to premature retirement without disposing of the pending representations. The Chairman of the Administrative Tribunal deciding the appeal was also Chairman of the Review Committee, raising a natural justice concern.
Findings of Court:
The Court found that the Review Committee and the State Government committed a serious error by relying on adverse entries for 1981-82 and 1982-83 without waiting for the appellants representations, which were made within time. The Tribunal erred in accepting the committees recommendation, and the Chairmans dual role violated principles of natural justice. The appeal was held meritorious, and the impugned orders were set aside.
Issues:
Whether adverse uninvestigated remarks can form the basis of premature retirement when pending representations remain undisposed of, and whether a dual role of a tribunal chairman compromises judicial neutrality.
Ratio Decidendi:
Administrative authorities must afford a fair hearing by waiting until pending representations against adverse remarks are disposed of before acting on retention or retirement decisions; a decision-maker is disqualified under natural justice principles if they have a prior adjudicatory role in the same matter.
Result:
The appeal is allowed, the orders of the Tribunal and the State Government are set aside, and the appellant is entitled to reinstatement with consequential benefits.
(A) The instant appeal engages the interplay of Orissa Service Code rules, Indian Penal Code provisions on misconduct, and the Administrative Tribunals Act framework governing premature retirement from state service. The authority to initiate premature retirement under Rule 71(a) of the Orissa Service Code is contingent upon a Review Committee evaluation that must respect due process, including the opportunity to represent adverse entries. The Indian Penal Code sections on fraudulent misrepresentation (Section 494), criminal breach of trust (Section 496), and wrongful restraint (Section 498(a)) provide the penal backdrop against which service misconduct is assessed, while Section 120(b) and Section 112 address criminal conspiracy and sentencing principles. The power of the High Court under Section 482 of the Code of Criminal Procedure to ensure justice and natural justice further supplements the supervisory jurisdiction over quasi-judicial bodies, and the Orissa Service Code Rule 71(a) specifically governs retention and compulsion of service matters.
(B) Key legal principles include the duty to afford a reasonable opportunity of hearing before adverse administrative findings are acted upon, the non-application of pending representations if the time for representation has not expired, the disqualification of a decision-maker under the principles of natural justice, and the requirement that administrative committees must not rely on uninvestigated adverse remarks when making detrimental orders.
Facts of the case:
The appellant, serving as Superintending Engineer (Electrical) in the Orissa State Government, completed 50 years of age and underwent a Review Committee assessment for retention under Rule 71(a) of the Orissa Service Code. Adverse entries for the years 1980-81, 1981-82, and 1982-83 were communicated to him on July 29, 1983. While representation against these entries was pending and within the six-month window, the Review Committee recommended premature retirement, a recommendation followed by the State Government via an order dated November 10, 1983, leading to premature retirement without disposing of the pending representations. The Chairman of the Administrative Tribunal deciding the appeal was also Chairman of the Review Committee, raising a natural justice concern.
Findings of Court:
The Court found that the Review Committee and the State Government committed a serious error by relying on adverse entries for 1981-82 and 1982-83 without waiting for the appellants representations, which were made within time. The Tribunal erred in accepting the committees recommendation, and the Chairmans dual role violated principles of natural justice. The appeal was held meritorious, and the impugned orders were set aside.
Issues:
Whether adverse uninvestigated remarks can form the basis of premature retirement when pending representations remain undisposed of, and whether a dual role of a tribunal chairman compromises judicial neutrality.
Ratio Decidendi:
Administrative authorities must afford a fair hearing by waiting until pending representations against adverse remarks are disposed of before acting on retention or retirement decisions; a decision-maker is disqualified under natural justice principles if they have a prior adjudicatory role in the same matter.
Result:
The appeal is allowed, the orders of the Tribunal and the State Government are set aside, and the appellant is entitled to reinstatement with consequential benefits.
A.K.PANDEY, C.S.S.RAO, P.N.MISHRA, P.P.Rao
JUDGMENT
SINGH, J.—Leave granted.
2. This appeal is directed against the judgment and order of the Orissa Administrative Tribunal, Bhubaneswar dated December 21, 1987 dismissing the appellants suit challenging his premature retirement from service under the State Government order dated November 11, 1983.
3. The appellant joined service under the Orissa State Government as Junior Engineer (Electrical) in 1955. He was promoted to the post of Executive Engineer (Electrical) in 1963. In 1978 he was promoted to the post of Superintending Engineer (Electrical) on merit and selection. While he was working as Superintending Engineer (Electrical) he completed 50 years of age. A Review Committee constituted by the State Government scrutinised the appellants case for considering his retention in service beyond the age of 50 years as contemplated by the first proviso to Rule 71(a) of the Orissa Service Code. The Review Committee considered the appellants service record on October 11, 1983 and made recommendation to the government that his retention in service was not in public interest. Pursuant to the recommendation of the Review Committee the State Government issued orders on November 10, 1983 prematurely retiring the appellant from service. He challenged the validity of the order by means of a civil suit before the Subordinate Judge, Bhubaneswar, but the suit was later on transferred to the Administrative Tribunal, Bhubaneswar under Section 29 of the Administrative Tribunals Act. The Tribunal dismissed the suit and upheld the validity of the order of premature retirement. Hence this appeal.
4. Learned counsel for the appellant urged that the Review Committee made recommendation for the appellants premature retirement on the basis of adverse remarks awarded to him for the years 1980-81, 1981-82 and 1982-83 although representations against those remarks made by the appellant had not been considered and disposed of by the State Government. This plea was canvassed before the Tribunal also. We find merit in this submission. The Review Committee on the basis of adverse remarks awarded to the appellant for the years 1980-81, 1981-82 and 1982-83 formed its opinion that the appellants retention in service was not in public interest as there was marked deterioration in his performance for the three consecutive years. Before the Tribunal the appellant assailed the validity of the Review Committees recommendation placing reliance on the decision of this Court in Brij Mohan Singh Chopra v. State of Punjab {(1987) 2 SCC 188. The Tribunal held that adverse remarks for the year 1980-81 could not be taken into consideration by the Review Committee as representation against those adverse entries was pending with the State Government. But, as regards the adverse entries for the years 1981-82 and 1982-83 are concerned the Tribunal held that though period for making representation against those entries had not expired and the appellant was entitled to make representation within six months from the date of communication of the entries, the Review Committee was not expected to defer the consideration of appellants case on the possibility of appellant making representation which eventually may or may not materialise. Proceeding further the Tribunal held that the entries for the years 1981-82 and 1982-83 were not liable to be ignored and on the basis of those entries the order of premature retirement was sustainable in law as there has been deterioration in the appellants performance during the aforesaid years.
5. In our opinion the Tribunal committed serious error. Admittedly the adverse entries for the years 1981-82 and 1982-83 were communicated to the appellant on July 29, 1983 and under the relevant rules the appellant was entitled to make representation against those entries within six months from the date of communication. The Review Committee met on October 11, 1983 and by that time six months period had not expired and before that date the appellant had not made any representation but that did not disentitle him from making representation. The appellant made representation against those adverse entries on October 19, 1983 well within time. But the same was not considered or disposed of by the State Government; instead it issued the impugned order on November 10, 1983 retiring him prematurely. The course adopted by the Review Committee and the State Government resulted in denial of opportunity to the appellant from making representation against the adverse entries awarded to him. Since the period for making representation against the adverse entries had not expired the appellant had right to make representation even a day before the expiry of six months period therefore till the date of expiry of the period prescribed for making representation, adverse entries for the years 1981-82 and 1982-83 could not be taken into consideration for this premature retirement. The Review Committee should have deferred the consideration of the appellants case till his representation against the aforesaid adverse entries was disposed of or in the alternative the State Government itself should have considered and disposed of the representation before issuing the order of premature retirement Neither the Review Committee nor the State Government followed any such course and instead they placed reliance on the aforesaid adverse entries against which appellants representation was pending. In this view the principles laid down by this Court in Brij Mohan Singh Chopra case {(1987) 2 SCC 188 were fully applicable and the Tribunal committed error in refusing to interfere with the order of the State Government. In our opinion, that order of the State Government retiring the appellant prematurely is vitiated and the appellant is entitled to relief.
6. Before we part with the case we would like to refer to a disturbing feature of the case. Shri Gian Chand, Chairman of the Tribunal who decided the appellants case was also the Chairman of the committee by virtue of being the Chief Secretary of the Orissa Government which reviewed the appellants case and made recommendation for his premature retirement. Shri Gian Chand had already expressed his opinion against the appellant although administratively, nonetheless he was disqualified to hear and decide the appellants case. The Tribunal performs judicial function and it is required to act judicially in accordance with the principles of natural justice. It is well settled principle that no person should be a judge in his own cause. On the application of this principle Shri Gian Chand was disqualified to hear and decide the appellants case. We do not consider it necessary to pursue the matter further, as the appellant had not raised any objection against the participation of Shri Gian Chand in the proceedings before the Tribunal.
7. In view of the above discussion, we allow the appeal with costs and set aside the order of the Tribunal dated December 21, 1987 as well as the order of the State Government dated November 10, 1983. The appellant is entitled to reinstatement with all consequential benefits of service in accordance with rules.
For Citation: 1989 Supp(2) SCC 248
Vikas Info Solutions Pvt. Ltd.