Lavya Bhasin
BACKGROUND
In the present case, the petitioner was asked to compulsorily retire from service in ‘public interest’, following committee recommendations with effect from 22.11.2016 in exercise of powers under Article 226(2) of the Jammu and Kashmir Services Regulations, because of his alleged involvement in a criminal case. A single bench quashed this order of compulsory retirement and delivered judgement saying so in 2018, after which a Letters Patent Appeal was filed by the State. Thus, the double bench in this case comprising of Justice Tashi Rabstan and Justice Puneet Gupta in the High Court of Jammu and Kashmir delivered their final verdict in this case.
WHAT IS COMPULSORY RETIREMENT?
The term or phrase “compulsory retirement” in service law has been generally used in relation to cases where an employee has been directed that his services are no longer required before he reaches the normal age of retirement prescribed by the rules.[1] “Premature retirement” can be another word for it. In the instant case, the judges in the written order mentioned that the purpose of such premature retirement is only to “weed out a government employee who is corrupt, inefficient or dishonest”.
ISSUE
Can a government employee be given compulsory retirement before his due date for his normal age of retirement , merely on committee recommendation?
ORDER OF THE COURT
The double bench ordered that compulsory retirement of any government employee cannot be based on the sole basis of recommendation of the committee so constituted. The court ruled that merely because the committee has made recommendations for retirement of writ petitioner, he cannot be compulsorily retired unless the competent authority comes to a conclusion after forming a bona fide opinion of its own that the writ petitioner can be subjected to compulsory retirement in the interest of the institution.
Though the power to retire compulsorily a government servant in term of service rules is absolute, it should be coupled with a ‘bona-fide’ interest which shows that the compulsory retirement is in public interest. The court ruled that in the present case, the employers failed to do so. With this, the court also said that the onus to prove that the order was made in public interest (if it was so) also lies on the employer.
The court also addressed the contentions of the respondents who claimed that the compulsory retirement was made because of involvement of the petitioner in a criminal case. Here, the court cited preceding judgements, and said that “involvement of a person in a criminal case does not mean that he is guilty. He still has to be tried in the court of law and the truth has to be found out ultimately in court after the prosecution is conducted. However, before that stage, it would be highly improper to deprive a person of his Right to livelihood merely on the basis of his involvement.”[2]
Since the concept of compulsory retirement exists to weed out corrupt, dishonest and inefficient government employees, the court suggested that in cases like this, the ‘annual character roll’ would be an appropriate tool to give an objective assessment of the employee’s integrity and job performance. Thus, any committee recommendation which is so made cannot be arbitrary and necessarily have to be in bona-fide interest, where the bona-fide interest is identified or justified on the basis of such objective proofs and documents, which form a basis for subjective satisfaction.[3] Thus, in the present case, the court found the order of the compulsory retirement to be absolutely unwarranted and thus, did not take a view other than that of the Single Bench in 2018.
ANALYSIS
The most important analysis that must be done in this case is to understand the ‘purpose’ behind the concept of compulsory retirement. The main purpose is to get rid of corruption, inefficiency and incompetency. Orders of compulsory retirement have to be made in public interest so that no bad faith creeps in.[4]
Was the compulsory retirement in the instant case in line with this purpose? No. The employee was not corrupt or inefficient, rather, was terminated from service simply because he was involved in a criminal case, wherein his guilt was not proved, and he was acquitted. However, the court noted that the petitioner’s reputation had not been officially questioned, as no adverse remarks were found in the Annual Performance Reports.
Thus, any order impugned with respect to compulsory retirement has to justify the ‘purposes’ of its conception and shall not be made simply on committee recommendations as that may turn out to be meaningless and arbitrary in nature, and may eventually harm the right to livelihood of a person.
Article 311(2) of the Constitution of India can also be analysed in this respect wherein it is said that no ‘civil servant’ shall be dismissed or removed in rank except after on enquiry in which he/she has been informed of the charges and has been given a reasonable opportunity of being heard in respect of those charges.[5] Although in this case, the employee was not a civil servant, but still, this section tells us about the rationale and intent, as well as the requirement behind such termination from posts.
Thus, in the author’s opinion, the order of the court in the present case is completely justified and thus, must set a precedent[ED1] in law which mandates the requirement of adequate public/institutional interest as well as bona-fide intentions before compulsory retirement is carried out. Also, the onus of the employer to prove that the said order/action was in public interest must also be taken seriously for service law to be able to provide justice to all.
CONCLUSION
So far, we have discussed the background and facts of the case, the meaning of the term ‘compulsory retirement’ as well as the order of the court and analysis of the same which also includes precedents in the same area of law. All of these patched together find out the issue to be resolved in the negative, that is, a government employee should not be given compulsory retirement before his due date for such, merely on committee recommendation.
There are obvious reasons behind the same which span from mala-fide interest and arbitrary action to the employee’s right of livelihood being wrongly affected. Service law establishes a framework for communication between employers, employees and their representatives in order to subsequently create a successful economy.
Thus, for service law to be successful in its purposes, judgements like these which clearly draw a line between the black and the white, the wrong and the right with respect to rights of the employees as well as existence of public interest are landmarks that we must not overlook, for these are the proof of productive judicial activism that upholds the integrity of Labour and Employment Law.
The judgement can be accessed here.
[1] State of J&K & Ors. V Rajinder Kumar, (2023) LiveLaw (JKL) 171.
[2] State of Gujarat v Suryakant Chunilal Shah, (1999) 1 SCC 529.
[3] Nand Kumar Verma v State of Jharkhand and others, (2012) 3 SCC 580.
[4] Tara Singh and others v State of Rajasthan and others, (1975) 4 SCC 86.
[5] Article 311(2), Constitution of India.
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