Thursday 8 March 2012

Whether it is necessary to issue show cause notice to employee prior to passing adverse remarks against him in ACR?

There is no practice or rule of issuing show cause notice to an employee before passing adverse remarks against him/her.
Dr. Mrs. Pratibha W/o. Prabhakar Gulhane,
// VERSUS //
1. State of Maharashtra,
DATED : OCTOBER 21, 2011.

1. This petition under Articles 226 and 227 of the Constitution has
been filed by the petitioner seeking relief of declaration that the provisions of
Articles 323A(
2)(d) of the Constitution vis
provisions of Section 5(2),à vis
5(4)(d), proviso 6(2)(b), (bb), (c), 6(3)(d), 6(3)(A), 17, 28, 29 of the
Administrative Tribunals Act, 1985 are
the constitution, to quash
and set aside judgment dated 19.01.1994 passed by Maharashtra
Administrative Tribunal, Nagpur Bench in O.A. No.977 of 1991 and also to
quash the notice dated 25.05.1990 issued by respondent No.1 directing the
petitioner’s premature retirement under the provisions of the Maharashtra
Civil Services (Pension) Rules, 1982 and further to reinstate the petitioner as
Deputy Director of Health Services and allow her to continue in the said post
till she retires on superannuation with all future benefits accruable to her
including promotion to the higher post.
2. The petitioner entered into health services of the State of
Maharashtra in the year 1968 as Medical OfficerClassII.
In the year 1974
she was promoted as
Medical OfficerClassI
and further promoted as Deputy
Director (Health Services) w.e.f. 18.11.1982. It is averred that the
respondents denied her promotion to the post of Deputy Director and
therefore, she was required to approach this Court by filing writ petition.
The special leave petition filed by the respondents against the judgment of
this court came to be dismissed and therefore, the respondents were bound
to implement this decision with retrospective effect. It is her case that
because of she approaching this Court, the respondents developed revengeful
attitude against her and for one or other reason, they started harassing her.
In her service record during the years 198384,
and 198990
deliberately adverse entries were made. After she resumed as
Deputy Director on 3
rd September, 1987, all these adverse entries were
communicated to her. The representation submitted by her except for the
year 198788
which was partly allowed, rest were rejected. Adverse entries
made in her record were nothing but a camouflage to ensure her premature
retirement. Against the order of the premature retirement she moved
Maharashtra Administrative Tribunal (in short “Tribunal”). The petitioner,
while canvassing her case that the decision rendered by the learned Tribunal
is wrong, also proceeded to level allegations that the learned members of the
Tribunal being biased and prejudiced against her. The reason cited is, the
husband of the petitioner had filed Writ Petition No.3533/1993 in this Court
challenging the appointments of all the members of the Tribunal including
the learned members who delivered the impugned judgment against her.
4. As regards the right of the respondents to order her premature
retirement it is submitted that the Special Review Committee, constituted to
consider the cases of employees for their continuation in service, did not
observe the principles of natural justice. The learned Tribunal did not rely
upon the various decisions of the Apex Court cited by the petitioner to
advance her case. The learned Tribunal was not just, fair and reasonable in
deciding her application. The finding recorded by the Special Review
Committee that the petitioner is liable to be retired prematurely in public
interest is perverse, unwarranted and against the norms of service
jurisprudence. In fact, major punishment is meted out to her without making
any inquiry which is violative of Article 311 of the Constitution.
5. The petitioner has also challenged the provisions of Rule 10(4)
of the Maharashtra Civil Services (Pension) Rules, 1982 (in short “Pension
Rules”) on the ground that it is discriminatory and confers unfettered
discretionary powers on the appointing authority. It allows one person to
remain in service till he completes 30 years of qualifying service and at the
same time it provides for retiring other person even at the age of 50 years.
Therefore, the petitioner states that the provisions of the Pension Rules are
violative of Articles 14, 16, 19 and 21 of the Constitution.
6. The petitioner attributes
of the Health Department on the ground that at her instance he was
prosecuted and the matter was subjudice in the High Court when the
impugned notice was issued.
7. As regards adverse entries in her confidential record it is
pleaded that there were no advance communications of deficiencies before
the entry of the same were taken in the service record. It is further stated
that the adverse entries were communicated at a belated stage. She also
questions respondent’s rejecting her representation against the adverse
entries. According to her, to justify these adverse entries, the relevant office
record ought to have been produced before the Tribunal. It is her case that
in view of the patent flaws pointed out above the learned Tribunal should
not have relied upon the report of the Special Review Committee and ought
to have quashed the impugned notice.
8. By way of additional pleadings the petitioner brought to the
notice of this Court subsequent events in the matter of the decision rendered
by the learned Tribunal on 15.04.2010 in T.A.No. 3872/1991 (W.P.
No.214/1990) quashing her supersession and granting her promotion to the
malafides to the then Minister incharge
5 Judgment
post of Joint Director of Health Services w.e.f. 23.01.1990. It may be noted
that this decision has been challenged by the respondents before this Court
in Writ Petition No. 5999 of 2010 and is being disposed of simultaneously
with this petition. Based on the subsequent decision of the learned Tribunal,
it is submitted that before she was given premature retirement she was
deemed to be promoted w.e.f. 23.01.1990 to the post of Joint Director of
Health Services. In that light of the matter, the impugned notice dated
25.05.1990 directing her premature retirement becomes void
9. The respondents filed reply denying all the adverse allegations
made in the petition. As regards adverse entries appearing in the confidential
record of the petitioner the say of the respondents is as under :
to the
year 198990
except the year 198687
the petitioner has
earned adverse remarks in her Annual Confidential
Report. It is submitted that, the Annual Confidential
Report for the year 198384
and 198586
communicated to her on 8
Confidential Report for the year 198788
communicated to the petitioner. She had replied against
the same on 28.11.1988. The another representation
was made against the adverse Annual Reports for the
year, 198889
on 4.11.1989. None of these adverse
remarks were expunged. The petitioner had approached
the Minister Incharge of the Public Health Department
where there was no positive response. Thereafter, the
petitioner has sent a representation to the Governor of
State which was also not in her favour.
10. It is the case of the respondents that under the Pension Rules,
the Special Review Committee consisting of Senior Administrative Officer
was constituted. After the notice was served upon the petitioner, there was
round of litigation initiated by the petitioner by approaching the learned
Tribunal and also this Court. After conclusion of this litigation she was
abinitio..... It is submitted that, since the year 198384th August, 1987. The adverse
retired w.e.f. 20.12.1991. The respondents justified their action on the
ground of adverse entries appearing in the confidential records of the
petitioner. The minutes of Special Review Committee, their recommendations
to the high power establishment board, are produced by the respondents for
the perusal of this Court. The allegations of bias and malafides attributed to
the respondents as well as members of the Special Review Committee are
vehemently denied.
11. The respondents while refuting the allegations putforth
case that the performance of the petitioner as Deputy Director of Health
Services was much below the average. The adverse entries in her
confidential record is true reflection of her performance. Only because the
adverse entries were made in her confidential record the allegations of bias,
and malice have been levelled by the petitioner. The respondents
have also reproduced details of the adverse entries made in the service
record right from the year 198788,
to justify premature retirement
of the petitioner in 'public interest'. According to the respondents, the
Special Review Committee and thereafter the establishment board had taken
conscious decision, as such, the order of premature retirement is in
accordance with law. Lastly, it is submitted that the decision rendered by the
learned Tribunal is not liable to be interfered with on any count.
12. The learned Tribunal, making following observations,
proceeded to dismiss the application :
situation applicant stands in, on the strength of the
relevant circumstances that surround her position in the
present case and on a careful examination of the laws
In the result after having throughly analysed the
and rules applicable with due scrutiny for their validity
and also utility in the matter of scanning the controversy
confronting us in the present case, we are of the opinion
that the action taken by the respondent State
Government resulting in a premature compulsory
retirement of the applicant by applying the provisions of
Rule 10(4) of the Maharashtra Civil Services (Pension)
Rules 1982 is quite in accord with law, without any
breach of the recognised and established principles
evolved for the discipline and efficiency to be maintained
in the government administration in harmony with the
basic law of the land, that is, the Constitution of India,
within whose frame work all the organis of the State are
required to function. ….
13. Judicial and quasi judicial forums are the creatures of the
statute to redress grievances of the aggrieved person. Litigant seeking relief
by invoking jurisdiction of such forums need to have faith and belief in the
working of the system. The litigant's faith and belief is foundation of justice
delivery system. There are instances, of course, very few, when litigant at the
inception is apprehensive about the justice which would be meted out to him
at the hands of a particular forum. In such circumstances, he is not without
remedy. We have a system which takes care of such situation giving liberty
to the litigant to get his matter transferred to other court or other forum. Our
experience shows that such situation arises very rarely. However, after
submitting to the jurisdiction of the forum, levelling allegations and casting
aspersions on the Presiding Officers particularly when the decision has gone
against him, is reprehensible and such practice needs to be deprecated.
14. We have made these observations as the petitioner in so many
words and in different paras of his petition questioned impartiality and
fairness of the learned members of the Tribunal. In paragraph 9 it is averred
that “
”.Members of the Tribunal have predetermined to dismiss the contempt
petition then there was no point in advancing the argument only for the sake of
arguments when they were already biased and prejudiced against the counsel
for the petitioner as he had filed Writ Petition No.3533 of 1993 in the High
Court challenging their own appointments as such being illegal
allegations are repeated. It is stated that the learned members of the
Tribunal heard the matter with bias mind and dismissed the original
application. In paragraph 29 it is stated that “
cannot also be ruled out as the petitioner has to be a wife of her counsel. In
view of this the petitioner reasonably apprehends that bias attributable to the
Members of the Tribunal might have operated against her in the final decision
i.e. Judgment Dt. 19.1.94
15. It is discernible from the order of the Tribunal that whatever
documents relevant to the case and available with the respondents were sent
for and inspection of the same was given to the counsel for the petitioner.
What is expected of judicial or quasijudicial
forum is to offer an opportunity
of being heard to the litigant. It is not the case of the petitioner that she was
not heard. The learned members of the Tribunal in their wisdom reached to
the conclusion as stated above. We, therefore, find nothing on the record nor
it has been demonstrated to point out that the learned members of the
Tribunal bore personal grudge against the petitioner or her counsel and this
weighed with them to arrive at the decision. Here, it is relevant to note that
Writ Petition No.3533 of 1993 filed by the learned counsel for the petitioner
and which is stated to be cause of discontent amongst learned members of
.” Again similarPossibility of personal bias.” Again in para 43 similar allegations have been
the Tribunal, has been dismissed by this Court on 17
without any relief to the petitioner.
16. While impugning the order of the Tribunal, the petitioner has
questioned the constitutionality of the various provisions of the
Administrative Tribunals Act. This appears to have been based on the
ground that the power of judicial review under Article 226 of the
Constitution has been taken away. Second ground of attack is the
qualification prescribed for the post of ViceChairman
(A). It is stated that
for such post person having ten years standing at bar would be more
suitable. While arguing the petition, these grounds were not agitated and
therefore, there is no need to consider the same. Suffice it to say that in S.P.
th February, 1998
Sampath Kumar Vs. Union of India
challenges were dealt with and the Supreme Court suggested few
amendments to rectify the defects appearing in the statute. Thereafter the
decision in case of
SCC 261
of the Administrative Tribunals Act.
17. In the petition one of the grounds is regarding constitutional
validity of Rule 10(4) of the Pension Rules. This is on the ground that it is
discriminatory and voilative of Article 14 of the Constitution in the sense that
by applying Rule 10(4) an employee can be made to retire at the age of 50
years, however, other similarly situated gets full tenure and till one
completes the age of 30 years. Although, this ground is incorporated in the
petition, was not canvassed by the learned counsel while arguing the case.
, reported in (1987)1 SCC 124 theseL.Chandra Kumar Vs. Union of India, reported in (1997) 3has concluded the issue of constitutional validity of the provisions
Suffice it, to say that this provision is on statute book since decades and is
one of the service conditions which is binding on the employee. In the
Central Service Rules and other service rules of the local bodies, government
undertakings, it is seen that appointing authority / employer has retained
with it right of review and power of retiring the employee at a particular age
in “public interest”. We, therefore, find no merit in the ground incorporated
in the petition.
18. In
in the case of
principles which are required to be followed in the matter of compulsory
retirement were broadly summarised thus :
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 Article 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
Swaran Singh Chand Vs. Punjab State Electricity Board and, reported in (2009) 13 SCC 758 after relying upon the earlier decisionState of Gujrat Vs. Umedbhai Patel (2001)3 SCC 314 the(i) Whenever the services of a public servant are no.”
19. Now, we proceed to examine whether the order of premature
retirement is on the ground of nonapplication
of mind, malafides or want of
material particulars. We shall also examine whether it was passed as a
shortcut to avoid departmental enquiry or in other words is it merely a
camouflage, as urged by the learned counsel for the petitioner. In this
context, it is necessary to reproduce the contents of the notice dated
WHEREAS under SubRule
(4) Clause (a)
(i)(ii) below Rule 10 of the Maharashtra Civil Services
(Pension) Rules, 1982 an appropriate authority has the
absolute right to retire any Gazetted Government servant
(i) if he entered Government service under any
Government in India, before attaining the age of thirty
five years after he has attained the age of fifty years.
(ii) In any other case, after he has attained the age of
fifty five years;
by giving him notice of three months in writing, if such
authority is of the opinion that it is in public interest so
to do;
AND WHEREAS, Dr. (Smt.) P.P. Gulhane,
Deputy Director of Health Services (Family Welfare)
Pune, a Gazetted Government servant, has now attained
the age of 50 years ;
AND WHERAS the Government is of the
opinion that it is in public interest to retire the said Dr.
(Smt.) P.P. Gulhane.
NOW THEREFORE, in pursuance of subrule
(4) clause (a)(i) of Rule 10 of the Maharashtra
Civil Services (Pension) Rules, 1982 the Government
hereby gives notice to the said Dr. (Smt.) P.P. Gulhane
that she shall stand retired from Government service on
the 24
the date of expiry of the period of three months
commencing on the date of service of this notice on her,
whichever is later.
By order and in the name of Governor of
N O T I C Eth August, 1990 or the day immediately following.”
20. It is thus, obvious that the contents of the notice are totally
innocuous. There is nothing in the said notice from which it can be inferred
that it casts stigma or aspersion on the conduct of the petitioner. In case of
Swaran Singh Chand
petitioner. In an inquiry the minor punishment was inflicted upon him. After
considering this, the Supreme Court in paragraph 5 observed that,
undisputedly, therefore, not only minor punishment inflicted on him had
been taken into consideration while passing the impugned order, but it was
also based,
Further the Supreme Court observed that the directions contained in a
circular dated 14.08.1981 (issued by Punjab Government) were not complied
with and therefore, it amounts to malice in law. The facts of the present case
stand on different footings.
21. The learned counsel for the petitioner took us through the reply
filed on behalf of the respondent No.1. According to him, this reply suggests
that the order of premature retirement was nothing but a punishment
inflicted upon the petitioner on the ground of lack of integrity, efficiency,
hard work, lack of coordination etc. In fact, this is not so. The Reply, which
has been filed in the year 2009 merely reflects annual confidential reports
which were considered by the Special Review Committee. In the matter of
compulsory retirement one of the principles laid down is order has to be
passed by the Government forming opinion that it is in the 'public interest' to
retire a government servant compulsorily and has to be on the subjective
satisfaction. This follows that the subjective satisfaction of the government
(supra) there were disciplinary cases against theinter alia, on the premises that his integrity was doubtful.
has to be based on consideration of the service record of an employee.
22. In
reported in
the Review Committee is not open to the Courts interference in absence of
The respondents' earlier record was throughout good except two adverse
remarks of latest years. It was held that such material was sufficient for
arriving at the subjective satisfaction of the committee. In absence of any
material showing malafides, perversity, arbitrariness or unreasonableness the
order retiring an employee is not vulnerable to challenge.
23. The learned Tribunal extensively quoted adverse entries
appearing in the service record of the petitioner. The petitioner quoted all
these adverse entries in para 5 of the petition. It is also pleaded by the
petitioner that representation against all those adverse entries were made
and except the adverse entry for the year 198788
which was partially
expunged, rest of the representations were rejected.
24. Special Review Committee, which was constituted to consider
the case of the petitioner, was consisted of :
(i) Additional Chief Secretary,
(ii) Principal Secretary (General Administration Department),
(iii) Principal Secretary (Public Works Department),
(iv) Two members of the Establishment Board
of the rank of Additional Chief Secretary and Secretary.
(v) Secretary (Health) was also present as special invitee.
The minutes reveal that the annual confidential reports of the petitioner for
Posts and Telegraphs Board and others Vs. C.S.N. Murthy,(1992) 2 SCC 317, it was observed that “subjective satisfaction of.” In that case the review was made by the High Power Committee.
the year 198485,
and 198889
were considered. After
undertaking onerous exercise the committee recommended to the
government accordingly.
25. The learned counsel for the petitioner contended that all the
adverse entries have been belatedly made to block her promotion and to
retire her compulsorily. There was delay in communication of the adverse
remarks. Before adverse remarks were made in her service record she was
not given any opportunity to amend or rectify her mistakes. We clarify that
there is no practice or rule of issuing show cause notice to an employee
before passing adverse remarks against her. In the hierarchy of the
administrative setup
the work of subordinate is supervised by his superior.
It may happen that the superior may in writing or orally bring to the notice
of his subordinate the flaws in his working noticed by his superior. However,
if this is not done, the adverse entries made in the service record at the end
of the particular year are not vitiated. The learned counsel for the petitioner
relied upon the decision in
reported in
observed that :
on ground of unsuitability it is proper and necessary
that he should be told in advance that his work and
performance are not up to the mark.
Next decision relied upon is in case of
proper procedure in the matter of entry of adverse remarks in confidential
Dr. Mrs. Sumati P. Shere Vs. Union of India,AIR 1989 SC 1431. It was the case of termination of service ofad hoc employee on the ground of unsuitability. The Supreme CourtIf services of an ad hoc employee is to be discontinuedAmar Kant Vs. State of, reported in AIR 1984 SC 531. The Supreme Court suggested that the
roll would be to make remarks in the roll in presence of officer concerned,
with right to make representation to higher authorities and second is to serve
copy of such remarks on the officer before submission of the confidential roll.
These were guidelines issued by the Supreme Court to be followed by the
governments and the local bodies. In that case it was found that the adverse
remarks were not communicated to the employee and subsequently it was
expunged by the State Government. Therefore, the Supreme Court held that
the decision of the selection committee was vitiated. The facts of the present
case are different. Whatever the adverse entries made in the confidential roll
of the petitioner were communicated. Of course, same were communicated
at a belated stage. However, the representations made against the adverse
entries were ultimately turned down.
26. The learned counsel for the appellant empathetically argued
that all the adverse entries have been made are without foundation and
should not have been made against her. The prayer in this petition is divided
into (i) to (viii) clauses. Nowhere it is averred that the adverse entries made
in her confidential record be expunged or quashed. Even otherwise also, we
find that all the adverse remarks were not passed by the single reporting
officer. They are spread over to 5 to 6 years and must have been recorded by
the different officers. The decision in the case of
help her case. As has been stated in paragraphs 5 and 6 of the petition the
adverse entries were communicated to her and the representations which she
had sent against these adverse entries were rejected. The learned counsel
Dev Dutta Vs. Union of, reported at 2008 SCW 3486 relied upon by the petitioner does not
invited our attention to the entry made in the year 198586
to the effect that
the petitioner had developed habit of approaching Court without permission
of the Government. In the year 198788
and 198889
amongst other adverse
things it was recorded that the petitioner goes to Court on silly grounds.
Perusal of the minutes of the Committee Annexure R5
point out that overall
performance of the petitioner was dispassionately reviewed. Entries like her
attitude of approaching the Court etc. did not at all weigh with the Special
Review Committee to arrive at the conclusion that she needs to be retired in
“public interest”.
27. It is the contention of the learned counsel for the petitioner that
the impugned notice dated 25.05.1990 was issued before her representations
pertaining to adverse entries for the years 198788
and 198889
decided. According to him the representation dated 27.03.1991 was rejected
on 25.03.1992. The fact remains that there were serious adverse entries in
her confidential record for the years other than the years 198788
and 198889.
Moreover, there were adverse entries against her in the year 198788
and 198889
made by the reporting officer and ultimately they were
28. The learned counsel for the petitioner further submitted that
while the petitioner was entrusted with responsibility of conducting family
planning operations (laparoscopy) not only she fulfilled the quota but her
work was excellent and it was appreciated.
29. It is pertinent to note that this is a case where there are adverse
entries in the successive years. Therefore, it does not appear probable that
all the reporting officers bore grudge against the petitioner. We have already
observed that in none of the prayer clauses the relief of expunging adverse
entries has been sought. In that light of the matter, the adverse entries as
were made in the service roll stand.
30. Before the Tribunal the learned counsel placed reliance upon
the affidavit sworn in by Dr. Gopal Panse retired Additional Director of
Health Services. According to him, the performance of the petitioner who
had an occasion to work under him was satisfactory. The learned Tribunal
dealt with this aspect of the matter at page 12 of their judgment, and rightly
so. The learned Tribunal also discarded the contention of the learned
counsel for the petitioner that there was possibility of substituting reports of
the reporting officer with the record produced before the Special Review
Committee. The learned Tribunal was perfectly justified in observing that, :
Government having substituted the reports of the
reporting officers too with or without the connivance of
the Director of the department of Health Services is too
remote to believe
On perusal of the minutes of the meeting of Special Review
Committee it will have to be presumed that the members had seen the
original record and were satisfied about its genuineness. If, at all,
we thus feel that the possibility of the State.”malafides
are to be attributed then it will have to be attributed to all six members of
the review committee. By no stretch of imagination it can be believed that
they all had a grudge against the petitioner and went to the extent of
manipulating the record so as to pave way for her exit from the service.
31. In
10 SCC 693
year 1994 to
scope of judicial review by the High Court in exercise of powers under Article
226 of the Constitution. The ratio laid down is:
compulsory retirement and is permissible only on
grounds of nonapplication
of mind, mala fides, or want
of material particulars. Power to retire compulsorily a
government servant in terms of the service rules is
absolute, provided the authority concerned forms
bonafide opinion that compulsory retirement is in public
32. Having considered the entire material placed on record we are
of the view that the decision of the learned Tribunal cannot be faulted with.
Thus, the petition lacks merit and is liable to be dismissed.
32. Before parting with the judgment, it is necessary to deal with
the contention of the learned counsel for the petitioner that in the event of
the order of the Tribunal passed in T.A. No. 3872 of 1991 and which is
subject matter of challenge before this Court in Writ Petition No.5999 of
2010, filed by the State of Maharashtra, is confirmed and consequently the
petitioner is promoted, all adverse entries against her would be washedoff.
According to him, this will have direct effect on the order of compulsory
retirement, in the sense that the very foundation of the compulsory
retirement i.e. adverse entries would be lost. Consequently, the order of
premature retirement of the petitioner will become nonest.
33. There are catena of authorities and reference to some of them
find place in this judgment laying down broad principles governing the issue
Pyare Mohan Lal Vs. State of Jharkhand, reported at (2010)the Supreme Court took stock of the decisions right from theSurendra Kumar's case [(2010) 1 SCC 158] and explained thehere is very limited scope of judicial review in case of
of compulsory retirement under the Pension Rules. One of the principles is
overall service record of an employee under consideration is to be
34. In
Pyare Mohan Lal Vs. State of Jharkhand [(2010)10 SCC]
(supra) it has been held that “
theory does not have universal
record for overall consideration even when an employee has been
subsequently promoted. In view of this decision of the Supreme Court, we
find no force in the submission advanced by the learned counsel for the
Hence, the petition is dismissed with no order as to costs.
washedoff”. Adverse entries in confidential rolls always remain part of
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