Central Administrative Tribunal - Ahmedabad
Ram Khilari Meena vs M/O Railways on 25 January, 2022
1
(CAT/AHMEDABAD BENCH/OA No.162/2020)
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.162/2020.
Dated this the day 25th of January, 2022.
Reserved on: 09.09.2021
Pronounced on: 25.01.2022
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. A.K. Dubey, Member (A)
1. Ram Khilari Meena, IRSE (Retd.),
Aged: 55 years (DoB being 01.12.1964)
Son of Shri Lichhman Meena,
(Prematurely retired as Dy.CE(Br.), ADI,
Presently residing at No.A-303, Signor Residency,
Opp. Surmaya Homes, Koteshwar Bhat Road,
Motera, Ahmedabad - 380 005.
...Applicant
(By Advocate Mr. M.S.Rao)
Vs
1. Union of India,
(Notice to be served through the Special
Secretary to the Government of India &
Ex officio Chairman, Railway Board,
Ministry of Railways, Govt. of India, Rail Bhavan,
New Delhi 110 001
(e-mail id: [email protected])
2. Western Railway,
(Notice to be served through the General Manager
Western Railway, HQ Office,
Churchgate, Mumbai 400 020)
(e-mail id: [email protected])
3. The Divisional Railway Manager,
Ahmedabad Railway Division
Western Railway Zone,
O/o DRM(E), ADI
Near Chamunda Mata Bridge,
2
(CAT/AHMEDABAD BENCH/OA No.162/2020)
Naroda Road, Ahmedabad 380 025
(e-mail id: [email protected])
...Respondents
(By Advocate Mr. M.J.Patel)
ORDER
Per: Hon'ble Dr.A.K.Dubey, Member, (A)
1. Aggrieved by the order dated 03.12.2019 of the respondents retiring the applicant from service under Rule 1802(a) of the Indian Railway Establishment Code (IREC) Vol.II (Annexure-A/1), the order dated 09/12/2019 about release of settlement dues consequent upon the said retirement, Memorandum dated 10/12/2019 informing about his retirement (Annexure-A/2) and payment of the sum equivalent to the amount of his pay plus allowances for a period of 3 months (Annexure- A/3) and the order dated 18/03/2019 in which his representation for reconsideration was rejected (Annexure-A/4), the applicant has filed this OA seeking following reliefs:-
"A. call upon the official respondent herein to place before this Hon'ble Tribunal the entire original departmental file/noting sheet, exchange of correspondence, etc., which gave rise to the issuance of the impugned documents at Annexure-A/1 & Annexure-A/2 hereto;
B upon a close perusal of the said files/noting sheet, etc., your Lordships may be graciously pleased to forthwith quash and set aside the impugned decision of the authority concerned to prematurely retire the applicant herein from the service of the railways as also the impugned (i)Order bearing No.E(O)/I/2019/SR-10-P/-05, dated 03.12.2019 at Annexure- A/1 hereto, (ii) Communication bearing No.E(O)I/2019/SR- 10-P/02, dated 09.12.2019 at Annexure-A/2 hereto (iii) Memorandum bearing No.E(G)/392/5 (Review) dated 10.12.2019 at Annexure-A/3 hereto and (iv) Communication bearing No.E(O)/I/2019/SR-10-P/05. Dated 03.12.2019 at 3 (CAT/AHMEDABAD BENCH/OA No.162/2020) Annexure-A/4 hereto, holding and declaring the same to be vitiated by the arbitrariness, discrimination and violative of the principles of natural justice, apart from being vitiated on account of lack of competency,:
C hold and declare the applicant herein does not fall under any of the categories warranting hizZs premature retirement from the services of the railways, going by his unblemished record of service in the railways.
D. issue appropriate directions commanding the respondents herein to forthwith reinstate the applicant herein as an IRSE Group A officer and restore his status as it was obtaining prior to the issuance of the impugned Orders dated 03.12.2019 & 10.12.2019, with all consequential benefits flowing thereofrom including the arrears of salary, promotions, etc., etc., E award the exemplary costs against the railway administration to be recoverable from the concerned authorities in the Railway Board who were directly and/or indirectly associated with the decision making process in the matter of premature retirement of the applicant herein.
F grant such other and further relief/s as may be deemed fit and proper in the peculiar facts & circumstances of the present case."
2. The case of the applicant is briefly mentioned as under: -
2.1 The applicant had joined the service of the respondents as Apprentice Inspector on 02/01/1987. In due course, he was posted as Engineering Inspector in the Zonal Training Institute, Udaipur in 1992 where he continued till October, 1996 i.e., till his promotion as Assistant Engineer.
He got senior scale in the year 2002. He was promoted to the Junior Time Scale of Indian Railway Service of Engineers (IRSE) with effect from 12/08/2008. Later, he was promoted to junior administrative grade on 23/01/2013. With effect from 01/01/2015 he was promoted to the selection grade.
2.2 On 25.03.2017, he was placed under suspension because of an FIR dated 14/03/2017 lodged against him and two other railway servants after a trap was laid on 14.03.2017 wherein one of the two other railway servants was 4 (CAT/AHMEDABAD BENCH/OA No.162/2020) alleged to have illegally accepted Rs.85000/- and he had stated that out of that amount, Rs.35000/- were meant for the applicant. Vide letter dated 11/09/2017, his suspension was revoked and the applicant was posted as Deputy CSO (Engineering) in the Western Railway Headquarters, Mumbai. Upon learning that the Railway Board was contemplating regular departmental disciplinary inquiry against him, the applicant submitted a representation dated 01/02/2018 to the Member Engineering, Railway Board, New Delhi requesting deletion of his name from the list of railway officers against whom disciplinary proceedings were contemplated. Till then, however no disciplinary or departmental charge memo was issued against him.
2.3 CBI, Gandhinagar had filed criminal charge sheet before the CBI Court, Ahmedabad, where the applicant was the accused No.1 which was without the formal previous sanction order of the applicant‟s appointing authority. The applicant claims that under Section 19 of the P.C. Act, prior sanction of the appointing authority was necessary for his prosecution. The other two railway servants were also arrayed as accused in this case. However, vide sanction order dated 11/01/2019; sanction was issued for the prosecution of the applicant. The case has since been pending in the CBI Court, Ahmedabad and the trial court is yet to frame the charges against him.
2.4 It is the say of the applicant that in order to wriggle out of the awkward situation of charging the applicant as an accused and submitting for prosecution without prior sanction order, the respondents invoked the provisions under Rule 1802(a) IREC Vol. II and accordingly, the order dated 03/12/2019 impugned herein (Annexure-A/1) was issued and he was prematurely retired from service on the sole ground that he had 5 (CAT/AHMEDABAD BENCH/OA No.162/2020) attained the age of 50 as on 01/12/2014. No other reason has been cited for it.
2.5 The order dated 03/12/2019 was actually served on 09/12/2019. In the applicant‟s case, the order was made effective immediately, with three months‟ pay whereas normally a retirement order is made effective after the expiry of 3 months. The respondent‟s stand has been that the release of retirement dues shall be governed by the Rules 9 & 10 of the RSPR, 1993 and if the officer figured in any departmental or judicial proceedings, the gratuity could be withheld and only provisional pension could be granted. The Memorandum dated 10/12/2019 (Annexure-A/3) is to this effect.
2.6 Vide his detailed representation dated 23/12/2019 (Annexure A/13), the applicant requested the authority to review its decision of compulsory retirement. This representation was forwarded to the railway board vide letter dated 06.01.2020 by the Western Railway HQ. Again on 19/02/2020, the applicant submitted another representation to the Western Railway Headquarters, Mumbai (Annexure-A/15) requesting disbursal of the retiral dues. This was not responded to.
3. Notice was issued. Respondents have furnished their reply. Respondents have maintained that the applicant‟s retirement order has been in strict accordance with the provisions contained in Rule 1802(a) of IREC Vol.II which reads as under: -
"Notwithstanding anything contained in this rule, the appointing authority shall if is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government Servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice.
(i) If he is in Group A or Group B service or post in a substantive or temporary capacity and had entered Government 6 (CAT/AHMEDABAD BENCH/OA No.162/2020) service before attaining the age of 35 years, after he had attained the age of 50 years'(Annexure-R-1)."
3.1 Respondents have relied on the judgement of Hon‟ble Karnataka High Court in R. Nagoji Rao vs. State of Karnataka, 1984 (3) SLR 807, in which Hon‟ble Court had observed that compulsory retirement after the employee has put in qualified number of years of service for full pension is neither a punishment nor a stigma so as to attract the provisions of Article 311 of the Constitution of India. The Hon‟ble High Court has held that the object of the compulsory retirement is to weed out dead wood in order to maintain high standard of efficiency in the state services. The respondents have further relied on the judgement in SB Awastha Narayan vs Government of India, 1986 (4) SLJ (CAT) 239 (Bangalore) in which it was held that rule 56(j) of the Fundamental Rules of Government of India [corresponding to Rule 1802(a) of the IREC] can be invoked only when a civil servant had completed the qualifying service. The principal object of retirement is "public interest" for which only civil services are constituted and maintained. Two categories that are considered for retirement under Rule 1802(a) are inefficiency or doubtful integrity and age as stipulated. The officers so retired are assured of pension and terminal benefits. In this judgement, the Hon‟ble High Court had refused to hold that this rule conferred any arbitrary powers or was violative of the Article 14 or 21 of the Constitution of India.
3.2 The respondents have maintained in their reply that the CVC 1 st stage advise for sanction of prosecution as well as initiation of disciplinary proceedings for major penalty were received on 23/08/2018.
3.3 The criminal charge sheet against the applicant was filed on 08/10/2018 which was after receipt of the 1st stage advice of CVC and the revised prosecution sanction was conveyed to CBI, Gandhinagar on 11/01/2019.
7(CAT/AHMEDABAD BENCH/OA No.162/2020) The respondents have also contended in their reply that the applicant was prematurely retired from the Railway Service as he was continuously figuring in the agreed/secret list from the year 2018 onwards. They aver that in accordance with the para 322.2 in the Vigilance Manual, (Annexure-R/3) the secret list is prepared on the stipulated criteria viz, officers convicted in the court of law or on charge of lack of integrity or offence involving moral turpitude but on whom in view of exceptional circumstances, a penalty other than dismissal or removal or compulsory retirement is imposed or officer who is awarded major penalty on the charges of lack of integrity or gross dereliction of duty. An officer against whom proceedings for major penalty or trial court proceedings are in progress for lack of integrity or moral turpitude and the officers who were prosecuted but acquitted on technical grounds and in whose cases, a reasonable suspicion against their integrity continued would also get included in the secret list.
3.4 The respondents have maintained that the applicant was continuously figuring in the agreed list/secret list since 2018 which prohibits sensitive posting. The applicant was in selection grade shouldering higher responsibility and having immense monetary sanctioning authority and a person of doubtful integrity could not be posted there. The retirement order was passed in strict accordance with the statutory rule 1802(a)of IREC. This Rule 1802(a) is similar to the Rule 56(j) of the FR. The principal object of retirement under this provision is public interest for which the civil services are constituted and maintained. The impugned orders have all been in accordance with the rule and after observing the procedures and hence, they are valid orders.
4. The applicant has submitted rejoinder to the reply, mostly reiterating the points contained in the OA. Additionally, the applicant has also 8 (CAT/AHMEDABAD BENCH/OA No.162/2020) submitted the copies of the Annual Confidential Report/APAR since 2010 till 2018 (Annexure-RJ1). The applicant has also submitted that the Railway Board Instructions contained in communication No.2010/SEC/3/4/ dated 09/03/2010 (Annexure-RJ/2) says that if there was any doubt or suspicion about the officers‟ integrity, the integrity column should be left blank and separate secret note should be recorded and attached to the APAR. If the officer was in the agreed list/secret list, it should not be indicated in the integrity column of APAR. Similar instructions were issued vide OM dated 11/02/2016 of DoP&T (Annexure RJ-3).
5. The respondents have filed their sur rejoinder, in which they have contended that the applicant was sanctioned with the provisional pension; remaining dues could not be settled due to criminal case pending against him. They have contended that the internal committee constituted for the purpose had scrutinized services of 471 of IRSE officers and from there, it short-listed 48 officers for review by the Review Committee. The review committee scrutinized the performance of the officers as reflected in the APAR in the entire career, Vigilance history of the officer, integrity as reflected in the APARs and as per the assessment of PED/Vigilance and integrity and general reputation of the officer ascertained from the officers he had worked with or under. Only after that the recommendations were made by it, which were duly accepted the President.
6. The sur rejoinder also reiterates that the applicant has been continuously figuring in the agreed/secret list from 2018 onwards. While accepting the applicant‟s contention that secret list should not be the sole criteria for premature retirement, the respondents have maintained that the applicant‟s case was considered in accordance with the principles 9 (CAT/AHMEDABAD BENCH/OA No.162/2020) mentioned above and only then the review committee made recommendation to the effect of retiring the officer.
7. The case came up for final hearing on 09.09.2021.
8. Reiterating the contentions taken by the applicant in his OA and the rejoinder, learned counsel for the applicant Mr. M. S. Rao referred to the provisions in Rule 1802 (a) IREC Vol.II which has been quoted in para 3 above.
8.1 A plain reading of this provision reveals that it has to be invoked only in „public interest‟, the applicant‟s counsel submitted. In the case of the applicant, the entire defence taken by the respondents was based on the „integrity‟ issue. The learned counsel argued that as far as the applicant‟s APAR‟s were concerned, all his APARs had mostly been graded as Very Good and in some cases outstanding since the year 2010. In most of the APARs in the fitness for department column, the entry "fit" has been shown. In all his ACRs/APARs, his integrity was certified beyond doubt; in the ACR for the year ending March, 2014 it read: nothing adverse has come to notice. With the APARs certifying his fitness in department and also certifying his integrity, on its very face it was contradictory to the ground taken by the respondents in invoking Rule 1802(a), the counsel argued. He further contended that even in the sur rejoinder it was mentioned that the case of the applicant was considered and recommend for pre mature retirement by the review committee after taking the following into consideration:
"a) Performance of the officers as reflected in the APARS in the entire career.
b) Vigilance history of the officers.
c) Integrity as reflected in the APARs and as per the assessment of
PED/Vigilance and
10
(CAT/AHMEDABAD BENCH/OA No.162/2020)
d) Integrity and general reputation as ascertained from the officers
he has worked with/under during his service. The contention of the applicant that he has been retired due to pending CBI case is not factually correct. Pending CBI case was a factor taken into cognizance by the Review Committee but not the sole criteria and further, his premature retirement is without prejudice to the pending CBI case against the applicant."
8.2 It is but obvious that APAR‟s, the integrity as reflected in the APARs and the vigilance history were among the criteria to make the recommendations as to pre mature retirement. APARs do not suggest any adverse remark on him in the integrity column. It is only the vigilance history, which could be one of the criteria for this action. If the idea was to mark a particular incident and view it from the vigilance angle then the correct procedure would have been to subject him to the disciplinary/ departmental proceedings. After the incident in 2018, the applicant was placed under suspension but no departmental proceeding was initiated. Although one particular instance has been referred to in the FIR and the case has been charged in the CBI court, nothing has proceeded against the applicant and in any case just a step in course of the disciplinary proceedings could not possibly constitute the ground to invoke Rule 1802
(a).
8.3 The counsel argued that invoking 1802 (a) in this matter was erroneous and discriminatory and particularly adopted with a view to short circuit the disciplinary proceedings where the accused would have got an opportunity to explain and defend himself. Instead of taking that normal statutory procedural route to deal with the matter, the respondents adopted a short cut method to invoke Rule 1802(a) which is bad in law and smacks malafides on the part of respondents, the counsel argued.
8.4 Even about the secret list, there are detailed instructions vide provisions contained in para 322.6 of the Indian Railway Vigilance Manual, 2018 whereupon the agreed list is prepared annually in consultation with CBI 11 (CAT/AHMEDABAD BENCH/OA No.162/2020) which contains names of those officers whose integrity and honesty is under a cloud. It is meant only for the purpose of intensive vigilance and carrying out preventive checks as provision in para 322.7 ibidem stipulates. The secret list includes those officers who have been convicted in the court of law on charge of lack of integrity on whom a penalty other than dismissal, removal or compulsory retirement is imposed. It also includes such officers, who are awarded major penalty on the charge of lack of integrity or gross dereliction of duty and includes those officers against whom such proceedings for major penalty are in progress. The secret list also includes officers who were prosecuted but acquitted on technical grounds and in whose case on the basis of evidence during trial, there remained reasonable suspicion about their integrity as para 322.2 of the Indian Railway Vigilance Manual 2018 refers. Therefore, it is obvious that the secret list would include an officer who is convicted by a court of law on whom a penalty other than dismissal removal or compulsory retirement is imposed and officer is awarded major penalty. On the date of compulsory retirement, the applicant did have a CBI case pending without even charges having been framed.
8.5 The applicant‟s counsel argued that no court of law on that date had convicted him and no major penalty was either awarded or contemplated. He argued that in this case, public interest has not been explained. Under these circumstances, invoking para 1802 (a) clearly establishes that it was to skirt the procedure of inquiry and snatch away from the person the opportunity to explain and defend himself in the process. There are instructions about review of the secret list and agreed list which does not seem to have been fully complied with by the respondent department. Records presented before us show that the CBI had registered FIR and had sought sanction for prosecution of the applicant in the trial court.
12(CAT/AHMEDABAD BENCH/OA No.162/2020) Treating that as a ground to subject the applicant to the procedure for retirement under 1802(a) is erroneous. The CBI case against the applicant is a valid ground to subject him to the criminal and disciplinary proceedings. But that does not constitute invincible ground to interpret it as a matter of public interest and proceed under Rule 1802 (a), the counsel for the applicant vehemently argued. On the basis of information obtained under RTI Act, the counsel argued that the official records did not show that APARs were sent to the Railway Board for the review which meant that the previous APARs were not taken into account.
8.6 Counsel for applicant contended that here the main question was whether the term „public interest‟ mentioned in Rule 1802 (a) would be invoked merely because of the criminal case or whether it was discretionary to do so. He averred that even if the authorities are inclined to do so, the exercise of power under Rule 1802 (a) cannot override the procedural requirements as laid down. The learned counsel relied on various judgement including the order dated 14.01.2021 of this Tribunal‟s Jabalpur Bench in OA 933/2018 setting aside a premature retirement order issued in public interest on the grounds of doubtful integrity while the disciplinary proceeding was on. The learned counsel also relied on the judgement of Hon‟ble Supreme Court dated 18.08.1980 in Baldev Raj Chadha vs Union of India [1980 (0) GLHEL SC 2668, & 1980 -II-LLJ- 459], Hon‟ble Delhi High Court dated 01.05.1987 in CW(P) 221977/1985 in L C Bhava vs. V.K. Kapoor & Another - [1987 LAB I C 1987].
8.7 The learned standing counsel for the respondents submitted that the while the criminal proceeding was on, disciplinary proceeding for the alleged misconduct was permissible. However, in this particular case, the applicant was compulsorily retired under Rule 1802(a) and for this purpose he was duly recommended by the review committee which had 13 (CAT/AHMEDABAD BENCH/OA No.162/2020) taken into account inter alia his vigilance status. Therefore, it would be erroneous to say that the review committee had acted in an arbitrary manner. He argued that a total of 471 IRSC officers were subjected to such scrutiny and out of that, 48 officers were short-listed and recommended for retirement under Rule 1802(a). Their retirement was in public interest to weed out the dead wood and ensure efficiency in the public service.
9. Heard both the counsel in detail. There are obviously two parts in the entire episode before us. The first is order dated 03/12/2019 by which the applicant was retired under Rule 1802 (a) of the IREC Vol.II. The rule has been quoted in paragraph 3 above which says that if the government or the employer is of the opinion that it is in the public interest to do so, it has the absolute right to retire any railway servant by giving him notice of not less than three months in writing or three months‟ pay and allowances in lieu of such notice. The provision under Rule 1802 (a) does not contemplate any notice or opportunity to the retiree to explain. The sole criteria is completion of 50 years of age if one has entered the service before attaining 35 years or if he has entered the service after completing 35 years then 55 years of age. Second part is the disciplinary action contemplated at the time of his retirement but implemented after his retirement, and use of that contemplated disciplinary action as a ground while acting in public interest.
9.1 First we look at the issue of public interest. We refer to the judgement quoted by the learned counsel for the applicant. In the Baldev Chadha vs Union of India [1980 (0) GLHEL - SC 2668]. Hon‟ble Apex Court had observed:
"When an order is challenged and its validity depends on it being supported by public interest, the state must disclose its materials so that the court may be satisfied for the order is not bad for want of any 14 (CAT/AHMEDABAD BENCH/OA No.162/2020) material whatever which to a reasonable man reasonably instructed in the law is sufficient to sustain the grounds of public interest justifying forced retirement of the public servant..."
In the same judgement, the Hon‟ble Apex court has also observed:
"It is in public interest to retire a never do well, but to juggle with confidential reports when a man's career is at stake is a confidence trick contrary to public interest. ...."
The appropriate authority, not the court, makes the decision, but even so, a caveat is necessary to avoid misuse."
In its concluding para Hon‟ble Apex Court had observed there:
"Legality depends on regard or the totality of material facts viewed in a holistic perspective."
In a matter arising from another judgement of Hon‟ble Calcutta High Court in Tarun Kumar Chowdhary vs UOI & Ors [reported in (1992) ILL (J) 30 Cal]. Hon‟ble Apex Court had observed:
"Rule 56(J) of the Fundamental Rules the equivalent of which is the Rule of 1802 (a) is not intended for taking any penal action. The rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution of India. Various considerations may weigh with the appropriate authority while experiencing the power conferred under the rule."
We notice that Rule 1802(a) of IREC Vol.II takes after FR 56(J).
10. We are aware of the observation of Hon‟ble Apex Court in M.S. Bindra vs. UOI & Ors. [JT1998 (6) SC 34] where it had quoted Baikuntha Nath case:
"Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or malafide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into."
11. It is on this plea that the counsel for the applicant has argued that the use of Rule 1802 (a) in the case of the applicant was arbitrary and with a 15 (CAT/AHMEDABAD BENCH/OA No.162/2020) malafide intention and therefore, its judicial scrutiny was very much permissible. Here it would be in order to look into the issue of the permissibility of judicial review in the case of action under FR 56(J) for compulsory retirement of employee. This issue has been observed and confirmed in this Tribunal‟s Bangalore Bench order in George Felix Mani vs. UOI & Ors [reported in 2000 (91) SLJ 225 CAT]. The relevant portion is extracted below:
"We have carefully examined the impugned orders by applying the principles laid down in various judgement referred above by the Hon'ble Apex Court. On careful perusal of the impugned orders we are of the view that the respondents have not followed Government of India instructions in respect of writing confidential reports, we are of the view there is no doubtful integrity, though the criminal case is pending against the applicant it cannot be termed as misconduct to the applicant as held by the Hon'ble Apex Court referred to above. The attack of the applicant is that FR 56 is not applicable to the facts of the case since the service of the applicant is under Central Provident Fund Organization. The learned Counsel for the respondents has produced ESI Act, 1952 in which EPC (service Conditions) Regulations have been pointed out under which FR SR have been adopted as per Regulation 9(3). The applicant has not averred in the O.A or in the rejoinder that FR56(j) is not applicable to the service of the applicant. The respondents have objected for considering the ground of non- applicability of FR56(j). We have carefully considered the contentions raised regarding maintainability of O.A. As referred to in Regulation 9(3) of EPF (service Conditions) Regulations we consider FR and SR are applicable to the employees of Provident Fund Organization. Hence, the contention of the applicant regarding maintainability is rejected.
As per the judgement referred to above, the questions that has to be considered is as to whether there is any arbitrary action while passing the impugned orders. When admitted facts are that the entire CRs of the applicant were not considered by the respondents and they have only considered CBI case pending against the applicant which shows the integrity of the applicant. As per the judgement of the Hon'ble Apex Court mere pendency of the criminal case against the applicant cannot be considered as misconduct and the integrity of the applicant is doubtful. Hence, the reasons assigned in the impugned orders are perverse and arbitrary. No doubt the Government has powers to exercise the powers under FR 56(j) for compulsory retirement of the employees. If there is an illegality while exercising the powers, at that stage the Tribunal can interfere by the judicial review."16
(CAT/AHMEDABAD BENCH/OA No.162/2020)
12. The applicant has also relied on the judgement of Hon‟ble Gujarat High Court in SCA No.89/2000 in R J Ratanghayara vs. State of Gujarat and the judgement of Hon‟ble Jammu & Kashmir High Court in SWP No.220/2015 in Satish Chander Kajuria vs. State of Jammu & Kashmir.
13. At this stage, we may profit from the observation of Hon‟ble Supreme Court in State of Gujarat vs Umedbhai M. Patel [2001 (3) SCC 314] :
wherein the law relating to compulsory retirement has now crystallized into definite principles, which could be, broadly summarized thus:
(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 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."
14. After going through these judgements and the guiding principles laid down thereunder by the Hon‟ble Apex Court and various Hon‟ble High Courts, it is crystal clear that the order of retirement under Rule 1802(a) can only be passed in public interest. It follows from the various judicial pronouncement quoted in foregoing paragraphs that retirement ordered 17 (CAT/AHMEDABAD BENCH/OA No.162/2020) under the provision of Rule 1802 (a) IRSC Vol.II is not a punishment and does not carry any stigma or civil consequence; and the concept of natural justice in this process is not considered, and this provision is a tool to weed out dead wood in order to maintain efficiency in the civil services. An order under this provision is distinguishable from any other order of dismissal or removal from service consequent to a disciplinary proceeding because the order under Rule 1802 (a) does not inflict any punishment or civil consequences on the government servant whereas the consequence of other orders is that they do inflict penalty. It appears inherent that such an order should not be passed as a short cut to avoid departmental inquiry. The documents and submissions before us show that the railways‟ own instructions implore to take into account APARs and the general vigilance status of the officer before its scrutiny for the purpose of action under Rule 1802(a). Here is a case where the APARs consistently rated the applicant‟s integrity beyond doubt and in these APARs, the comment on his fitness in the department has consistently been „fit‟. When there were complaints which were chargeable under the PC Act or qualified for action under the disciplinary rules/departmental proceedings, the same should have been proceeded with under the relevant rules. However, we see that prior to his compulsory retirement, criminal proceedings had been initiated after CBI filed FIR and obtained sanction for prosecution of the applicant in the CBI court. While this criminal proceeding has been pending, invoking the integrity issue for the purpose of Rule 1802(a) in this context seems to be the sole ground in this case to interpret it under the heading „public interest‟. There are instructions as to how to deal with such disciplinary cases and the usual course of action should have been to proceed with the CBI case and to conclude the matter accordingly. In normal course, one would except the criminal/disciplinary proceedings to conclude as per rules, and certainly 18 (CAT/AHMEDABAD BENCH/OA No.162/2020) not get skirted. Here it seems the respondents have ignored their own rules position as they have not been able to establish that their action was not a short cut to avoid disciplinary proceedings. Nor have the respondents been able to establish that the criminal proceeding which was yet to start in trial was not the only ground to categorise this case in „public interest‟. In fact, in the light of Hon‟ble Apex Court‟s observation in Umedhbhai Patel Case (supra), it gives an impression that the provision under Rule 1802 (a) has been used as a shortcut to avoid disciplinary proceeding.
15. More recently in the case of Arun Kumar Gupta Vs State of Jharkhand and another [2020 lawsuit (SC) 217], while dealing with the issue of compulsory retirement of a judicial officer in Jharkhand, Hon‟ble Apex Court quoted its own decision in Baikuntha Nath Das Vs Chief District Medical Officer [1992 (2) SCC 299]; the para 34 thereof is quoted below:
"34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and 19 (CAT/AHMEDABAD BENCH/OA No.162/2020) adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above." Further in the same judgement, quoting its decision in Union of India Vs Col. J N Sinha [1970 (2) SCC 458], Hon‟ble Supreme Court had held that compulsory retirement does not involve civil consequences and it is not intended for taking any penal action against the Government servant. The Rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the constitution.
15.1 Since, Article 310 has been quoted here, we are mindful of the doctrine of pleasure, the effect of which is that the civil servants can be dismissed without notice and there is no right of action for wrong dismissal, which, in turn would mean that they cannot claim damages for pre-mature termination of services. In that sense the provision of Article 310 which is relevant in this case because retirement has been ordered in public interest, is distinguishable from the provision contained in Article 311 (2). We are clear in our minds that here the retirement being under Rule 1802 (a), Article 311 is not attracted. The Hon‟ble Apex Court‟s judgement in Arun Kumar Gupta case (supra) amplifies this.
15.2 In the Arun Kumar Gupta (supra) case, Hon‟ble Apex Court was pleased to refer to the judgement in Pyare Mohan Lal Vs State of Jharkhand [2010 (10) SCC 693] to observe that the authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry as it may well be in some cases that in spite of 20 (CAT/AHMEDABAD BENCH/OA No.162/2020) satisfactory performance authority may desire to compulsorily retire an employee in public interest. As in opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee rendered himself liability to the institution there is no occasion for the court to interfere in the exercise of its limited power of Judicial Review. It is therefore, amply clear from this order that the entire service record of the employee has to be subjected to assessment whether he could be retired compulsorily. In that sense even a single adverse entry regarding the integrity of an officer even in remote past would be sufficient to allot compulsorily retirement, the Hon‟ble Court had observed.
15.3 In another case Nisha Priya Bhatia Vs Union of India & another [2020 (13) SCC 56], Hon‟ble Apex Court had given an enlightening judgement on the issue of compulsory retirement. Although that case deals elaborately with the issue of security as a reason for compulsory retirement under RAS Rule quoted there, it also offers valuable guidance to deal with the matters of compulsory retirement in general. It has observed that though rules governing conditions of service framed under Article 309 are subject to other provisions of constitution including Article 311, this subjection clause would not operate upon rules governing compulsory retirement, due to doctrine of pleasure. We therefore feel that this confirms that the action of pre-mature retirement under Rule 1802 (a) is absolute and to that extent unassailable.
15.4 Quoting the observation in the State of UP Vs Shyamlal Sharma [1971 (2) SCC 514] Hon‟ble Apex Court has further observed in the Nisha Priya Bhatia Case (supra): -
".......as far as compulsory retirement is concerned in ascertaining whether the said order is one of punishment, it has to be ascertained 21 (CAT/AHMEDABAD BENCH/OA No.162/2020) whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned.
".......an order of compulsory retirement differs from an order of dismissal and an order of removal in that it is not a form of punishment prescribed by the rules and involves no penal consequences in as much as the person retires is entitled to pension proportionate to the period of service standing to his credit.
"......the Rule 56 (J) is not intended for taking any penal action against the Government servants; that Rule merely embodies one of facets of the pleasure doctrine embodied in Article 310 of the constitution."
15.5 This judgement has also discussed the Col. J N Sinha case (supra) and observed that the right conferred on the appropriate authority with regard to FR 56 (J) is an absolute one and that power can be exercised subject to the conditions mentioned in the rule, one of which is, that the authority concerned must be of the opinion that it is in public interest to do so. If that authority bonafide forms that opinion, the correctness of that opinion cannot be challenge before courts. It is open to the aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision.
In this order the Hon‟ble Apex Court had concluded that the decision to retire an officer compulsorily is purely an executive function exercised in light of the prevailing circumstances. The scrutiny by the court is restricted to an examination of whether such order is smitten by malafide or extraneous consideration.
15.6 Similarly, we have gone through the judgement of Hon‟ble High Court of Delhi in Ashok Kumar Aggarwal Vs Union of India & Ors in WP(C) 11177/2020 and CMA 34872/2020 decided on 22.09.2021, which has 22 (CAT/AHMEDABAD BENCH/OA No.162/2020) quoted various judgement/observations of Hon‟ble High Court and Hon‟ble Supreme Court. This order has dealt in detail with the issues emanating from the concept of doctrine of pleasure, public interest and the scope of judicial review of an order of compulsory retirement. It has also taken note of the serious allegations against the petitioner of corruption including CBI cases and has ruled that even if an employee succeeds in one or two cases against the Central Government, it does not make him a "compulsory retirement proof" employee. This judgement has again observed that it is a settled law that the scope of judicial review is very limited in the cases of compulsory retirement and is permissible on the limited ground such as non-application of mind or malafides.
16. While we are aware of the fact that the provision of Rule 1802 (a) has been exercised by the respondents in public interest which precludes application of Article 311 of constitution and which is based on the subjective satisfaction of the respondents. We also take into consideration the fact that the respondents had adopted a particular procedure to be undergone right from short-listing the candidates to be considered for compulsory retirement till the stage of recommendation by the review committee. Material brought before us states that after such a procedure, 48 out of 471 officers/officials were recommended to be retired. Therefore, in our opinion, the only thing which is to be seen in this matter is whether there has been any malafide in the exercise of the power under Rule 1802 (a) or was there any non-application of mind or any extraneous consideration. It is not in dispute that the matter has been subjected to the procedure set for the purpose under which the names were scrutinized and recommended to the review committee and only after the consideration by the review committee on the set grounds which included the performance records, APARs, general reputation and 23 (CAT/AHMEDABAD BENCH/OA No.162/2020) vigilance status, the applicant was finally ordered to be retired. Evidently the respondent department underwent the procedure and out of 471 officers, 48 were short-listed and recommended for retirement in public interest. Therefore, in our opinion, there is no case of non-application of mind by the respondents.
16.1 The second question is about malafide. We are clear in our mind that the matter of public interest and subjective satisfaction of the decision makers cannot be subjected to judicial review as has been repeatedly pronounced by Hon‟ble High Courts and Hon‟ble Supreme Court in several of their judgement. Therefore, we are confining ourselves only to see whether any instance of malafide or extraneous consideration is there in the exercise of the powers under Rule 1802 (a) in this case. Records and documents brought before us establish that on the eve of subjecting the applicant to the scrutiny for action under Rule 1802 (a), it was clear to the decision makers that the applicant‟s APARs were clear, his integrity was certified, he had the entry "fit" in the departmental suitability in his APARs and there was a criminal proceedingalready pending against him pursuant to the lodging of FIR in the year 2018 whereafter he was placed under suspension (actually deemed suspension) and the suspension was extended and was revoked only subsequently. The CBI had filed the report in the CBI Court and the prosecution sanction too was given. All these have been in the knowledge of the decision makers. It is also very clear that a pending CBI case cannot be excluded while looking into the vigilance status of an officer. Even if the APARs etc. were all clear, the matter of CBI case was very much there at the time immediately prior to the retirement under Rule 1802(a). The applicant had a lurking fear of departmental proceedings as it is discernible from his representation dated 01.02.2018 (Annexure A/3). We are respectfully mindful of the 24 (CAT/AHMEDABAD BENCH/OA No.162/2020) guiding principles from various judgement of Hon‟ble Supreme Court discussed above according to which, the retirement under FR-56(J) or Rule 1802(a) is in public interest and has no civil consequences and it is not a stigma.
16.2 At this point, we consider it necessary to mention that there is another OA No. 95/2021 filed by the applicant against issuance of charge sheet after his compulsory retirement. On the eve of the decision by the respondents under Rule 1802 (a) of IREC Vol.II., the criminal proceeding was pending and disciplinary action was contemplated after revocation of his suspension. This was part of the vigilance input/status. This arose from the criminal proceeding against the applicant which came up from the applicants own conduct and here, it is not attributable to anyone else or the respondents. However, use of the vigilance case solely to decide the matter of public interest under Rule 1802(a) is not convincing when contemplated disciplinary proceeding has been skirted.
17. There is an another aspect of this issue. Hon‟ble Supreme Court has already established through various judgepment that the retirement under FR 56(J) or its provisions is a facet of doctrine of pleasure and if exercised bonafide, it is not justiciable. At this juncture we refer to the observation of Hon‟ble High Court of Punjab and Haryana in H. O Kaushik vs. State of Haryana and Another in CWP 3407/1988 which is quoted:
".................that a Government servant was initiated a minimum period of service being authorized could direct compulsory retirement by itself that did not carry any stigma and was not treated in as penal in nature. Thus, the decision to retire an officer illegally has to be a clean decision without any proceedings with regard to the matter which forms, background motive of the decision."
".......in such a case the compulsory retirement should be given full gratuity, pension so that whatever pension he has earned, in respect of the period of his service already rendered is given to him in full. If 25 (CAT/AHMEDABAD BENCH/OA No.162/2020) simple penal in action is to be taken, sanction only reduce pension then it could not be said to be a clean order of compulsory retirement. It is only a clear decision to order illegal retirement simplicitor which carries neither any stigma or nor any lose of pensionary benefits is coupled with initiation of any departmental proceedings that can be treated as a legitimate exercise of the pleasure of the Government to retain an officer or not beyond the minimum prescribed period of service."
The order dated 09.12.2019 (Annexure A/2) specifically mentions that if the officer was figuring in any departmental/judicial proceedings, gratuity may be withheld. This specification does not go along with the concept of public interest that has been envisaged under Rule 1802(a) and does not make that order a clean one. After respectfully referring to the aforementioned judgements of Hon‟ble Apex Court, we find that an order under 1802(a) must not be encumbered by any possible civil consequence because such a possibility shall render it extraneous to the very concept of public interest.
17.1 The impugned order dated 09.12.2019 (Annexure A/2) clearly implies that consequences of the disciplinary proceedings have been attempted to be super imposed on the provisions of Rule 1802(a) and such super imposition tarnishes the order in public interest in the sense that it entails a possibility of civil consequence. We have to bear in mind the repeated observation of Hon‟ble Apex Court in various judgement that the retirement under Rule 1802(a) has to be a clean one and should not be stigmatic. This concept of non stigmatic or cleanliness of the order is betrayed in this particular case due to the superimposition of the departmental proceedings as manifest from the impugned order dated 9.12.2019 (Annex A-2).
17.2 We therefore, conclude that this retirement order under Rule 1802 (a) of IREC Vol.II is not clean; it is encumbered, tainted and debilitated by 26 (CAT/AHMEDABAD BENCH/OA No.162/2020) subjecting it to the possible civil consequences as it seeks to short circuit the departmental proceedings.
18. Under the circumstances, we are of the considered opinion that while it will be as per the rules to subject the officer to the disciplinary proceedings and make him face the consequences of his delinquency, the impugned orders (Annex A1 to A4) in this case are tainted, unclean and stigmatic as they entail (civil) consequences of disciplinary proceedings The application succeeds. We quash Annexure/A1 to A/4. Consequently, the respondents shall take him back into service by restoring his rank and service entitlements. Respondents shall decide as to how to treat the period from the date of his compulsory retirement under Rule 1802 (a) till the date on which he joins back in service, within a period of 2 months from the date of receipt of this order. No orders as to cost.
(A K Dubey) (Jayesh V Bhairavia) Member(A) Member(J) SKV/PA