Central Administrative Tribunal - Ahmedabad
Jarnel B Singh vs Revenue Cbdt on 8 May, 2026
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CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.120/464/2021
This is the 8th day of May, 2026
Reserved On: 19.03.2026
Pronounced On : 08.05.2026
CORAM :
Hon'ble Shri Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
Jarnel B. Singh
Ahmedabad Aged: 55 years (DoB being 01.03.1966)
Bench Son of Shri Balwant Singh
(Prematurely retired as Income Tax Officer w.e.f. 26.11.2019)
Presently residing at Rituraj Appartments,
1st Floor, Near St. Zavier's School, Loyaa Hall,
Navrangpura, Ahmedabad 380 009.
......Applicant
(By Advocate: Mr. M S Rao & Mrs. Hemlata Sharma)
Vs.
1. Union of India, notice to be served through
the Secretary, to the Govt. of India, Department of Revenue,
Ministry of Finance, Govt. of India,
North Block, New Delhi 110 001.
2. Central board of Direct Taxes
[to be represented through its Chairman, (CBDT),
North Block, New Delhi 110 001).
3. The Principal Director General of Income Tax (Vigilance) &
Chief Vigilance Officer, O/o DGIT/CVO (Vig)
Department of Revenue, Govt. of India
2nd Floor, JLN Stadium, Lodhi Road,
New Delhi 110 003.
4. The Principal Chief commissioner of Income Tax
Gujarat, O/o. Pr. CCIT, Gujarat, Aayakar Bhavan,
Ashram Road, Ahmedabad, 380 009.
5. The Chief Comissioner of Income Tax
Rajkot, O/o. CCIT, Rajkot, Aayakar Bhawan, 6th Floor,
Race Course Ring Road, Rajkot 360 001.
6. The Representation Committee
[Constituted by the DoPT under F.R.56(J)]
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Department of Personnel & Training, Ministry of Personnel,
Public Grievances & pensions, North Block, New Delhi 110 001.
.......Respondents
(By Advocate : Mr. Chirayu Mehta)
ORDER
Per : Hon'ble Shri Jayesh V Bhairavia, Member (J)
The applicant has filed the present OA under Section 19 of the Administrative Tribunal's Act, 1985 seeking following reliefs :
"(A) Call upon the official respondents 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;
Ahmedabad (B) Upon a close perusal of the said files/noting sheet, etc., your Bench Lordships may be graciously pleased forthwith quash and set aside the impugned decision of the authority to prematurely retire the applicant from the service of the respondent department as also the impugned (i) Communication bearing F.No.CC.JT/FR56/2019-20/JBS-ITO/4052 / Order No.1/2019 dated 25.11.2019 at Annexure A-I hereto issued passed by the Chief Commissioner of Income Tax, Rajkot, permanently retiring the applicant herein under FR 56 w.e.f. 26.11.2019 and
(ii) Order bearing No.CCIT/RJT order 56(1)/repr-IBS/2020- 21/437 dated 18.06.202 of Annexure A/2 hereto, issued by the Chief Commissioner of Income Tax, Rajkot conveying the decision of the 3 Member Representation Committee upholding the aforesaid decision of the Chief Commissioner of Income Tax, Rajkot to permanently retire the applicant herein under FR 56(i), 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 competence;
(C ) Hold and declare that the applicant herein does not fall under any of the categories warranting his premature retirement from the services of the department of Income Tax, going by his unblemished record of service in the said department. pleased to direct the respondents to pay special cost and compensation to the applicant as the same is denied to the applicant even after repeated litigation by the applicant.
(D) Issue appropriate direction communicating the respondents herein to forthwith reinstate the applicant as Group B Gazetted Income Tax Officer and restore his status as it was obtaining prior to the issuance of the impugned Order dated 25.11.2019 at Annexure-A/1 hereto with all consequential benefits interim including the arrears of salary, promotions, etc. etc. 2026.05.13 P ANUKUMA 13:34:22+05'30' ::3 :: O.A.No. 120/464/2021 (E) Award the exemplary costs against the respondent department to be recoverable from the concerned authorities in the respondent department 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 and circumstances of the present case.
FACTS OF THE CASE
2. The applicant joined the respondent's department as an Income Tax Inspector (ITI) on 13.01.1993 pursuant to selection by the Staff Selection Commission. He was initially posted at Ahmedabad and later transferred to Palanpur.
Ahmedabad Bench 2.1 In 2001, the applicant was promoted to the post of Income Tax Officer (ITO) by the Chief Commissioner of Income Tax, Gujarat Zone, Ahmedabad, and was posted at Gandhidham, Kutch. In 2007, he was transferred to Ahmedabad, where he continued to serve as ITO till June 2017.
2.2 While serving as ITO in the office of the Director of Income Tax (Exemption), Ahmedabad, the applicant was implicated in a CBI trap case on 22.02.2013 for allegedly demanding and accepting a bribe of Rs.10,000/- for issuing a certificate under Section 80G of the Income Tax Act. He was placed under suspension with effect from 22.02.2013. A charge sheet was filed by the CBI before the Special CBI Court, Ahmedabad on 19.08.2013. Thereafter, his suspension was revoked on 07.02.2014, and he was reinstated on 06.02.2014. He was granted 75% subsistence allowance vide order dated 04.03.2014. The criminal case is still pending before the Special CBI Court, Ahmedabad.
2.3 Subsequently, in June 2017, the applicant was transferred to Rajkot as ITO under Principal Commissionerate-2 and was posted in Ward 2(3).
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2.4 While the applicant was working as ITO at Rajkot, a major departmental inquiry under Rule 14 of the CCS (CCA) Rules, 1965 was initiated against him vide charge memorandum dated 28.08.2017 for the charges which are identical as in the CBI case (Annexure A/5 refer). The applicant submitted his written defence on 08.09.2017 denying the charges. Thereafter, the disciplinary authority decided to conduct the departmental inquiry and in furtherance thereof, an Inquiry Officer and Presenting Officer were appointed in February 2018.
In the meantime, on 18.05.2018, the applicant was posted to the office of CIT (DR), ITAT, Rajkot.
Ahmedabad Bench 2.5 During the inquiry, the applicant requested on 04.06.2018 that the departmental proceedings be dropped or kept in abeyance till the conclusion of the criminal proceedings since the charges levelled against the applicant in the disciplinary proceedings are identical in nature with the charges levelled and framed against the applicant in the criminal proceedings based on the similar set of documents and witnesses. However, the said request of the applicant was rejected by the Disciplinary Authority (DA) on 19.06.2018.
2.6 The applicant stated that the Inquiry Officer (IO) was required to complete the inquiry within six months, i.e., by 20.08.2018, as also indicated in communication dated 13.07.2018. However, the inquiry was not completed within this period. The applicant repeatedly requested certified copies of relied-upon documents, but the same were not provided. Instead, the proceedings were delayed on the ground that the applicant was not cooperating. Aggrieved, the applicant submitted a representation dated 23.09.2019 alleging bias against the Inquiry Officer and seeking his replacement.
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2.7 The DA rejected the applicant's request for change of IO vide order dated 08.11.2019.
2.8 It is stated that since the relevant documents were with the CBI and the inquiry was not completed within the prescribed time, the respondents resorted to premature retirement to remove him from service. Accordingly, vide order dated 25.11.2019 (Annexure A/1 refer), the applicant was prematurely retired under Fundamental Rule 56(j) with effect from 26.11.2019 upon attaining the age of 50 years. He was paid a sum of Rs.1,86,183/- in lieu of three months' notice, though without any detailed breakup.
Ahmedabad Bench 2.9 Aggrieved, the applicant submitted a representation dated 11.12.2019 seeking review of the premature retirement order. The said representation was forwarded for consideration. Additionally, employee associations also submitted representations seeking review of similar actions taken against several officers.
2.10 During this period, the applicant was paid CGEGIS benefits amounting to Rs.34,892/- and provident fund dues of Rs.18,52,551/-.
2.11 The said representation of the applicant was considered by a three-member Representation Committee constituted under FR 56(j) and Rule 48 of the CCS (Pension) Rules, 1972. The Committee reviewed the cases in early 2020.
2.12 Vide order dated 18.06.2020, the applicant was informed that the Representation Committee found no reason to interfere with the decision of his premature retirement (Annexure A/2 refer), which is impugned herein.
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2.13 The applicant could not immediately approach this Tribunal due to the COVID-19 pandemic and personal difficulties, including the death of a close relative.
2.14 Upon obtaining legal advice later, the applicant came to know that (i) the authority which passed the order dated 25.11.2019 may not have been competent; (ii) the amount paid in lieu of notice was inadequate; and (iii) the Representation Committee had not properly applied its mind. Thus, having exhausted all available remedies, the applicant has now approached this Tribunal by filing the present Original Application for seeking the reliefs as quoted above.
Ahmedabad Bench 3. In support of aforesaid prayer sought in this OA, Shri P.H. Pathak, learned counsel for the applicant mainly submitted as under :-
3.1 The impugned decision to prematurely retire the applicant under Fundamental Rule 56(j) has not been taken by the "appropriate authority". It is an undisputed position that the applicant was promoted to the cadre of Income Tax Officer in the year 2001 by the then Cadre Controlling Authority for the Gujarat Zone. It is further submitted that prior to the cadre restructuring of the Income Tax Department in the year 2013, the Chief Commissioner of Income Tax was the Cadre Controlling Authority; however, after the said restructuring, each Zone is headed by the Principal Chief Commissioner of Income Tax (Pr. CCIT), and the Chief Commissioners function subordinate to the Pr. CCIT.
3.2 The post of ITO is a zonal cadre post, and appointments, including promotions to the said post, are made with the approval of the Pr. CCIT, who is the Cadre Controlling Authority. In the Gujarat Zone, the Pr. CCIT is presently the competent authority exercising such powers. In the present case, however, the impugned order dated 25.11.2019 has been passed by the Chief 2026.05.13 P ANUKUMA 13:34:22+05'30' ::7 :: O.A.No. 120/464/2021 Commissioner of Income Tax, Rajkot, who is subordinate in rank and cannot be treated as the Cadre Controlling Authority or the "appropriate authority" under FR 56(j).
3.3 the impugned order does not even indicate that the power under FR 56(j) has been exercised in the capacity of the "appropriate authority". On the contrary, in the subsequent order dated 18.06.2020 issued by the Chief Commissioner of Income Tax, Rajkot, has conveyed to the applicant that the Review Committee does not find any reason to interfere in the decision of the appropriate authority to prematurely retire the applicant in public interest and the Committee is of the view that the action taken Ahmedabad under FR 56(j) is fully justified. Further, in para 9 of the Bench impugned order, it has been stated that the "appropriate authority" has accepted the observations and findings of the Representation/Review Committee as mentioned in para 8.2 of the order and disposed of the representation of the applicant dated 11.12.2019, therefore, learned counsel vehemently argued that the author of impugned order dated 18.6.2020 implicitly admitted that he himself is not the Appropriate Authority. It is required to be mentioned that the very same Chief Commissioner of Income Tax who has passed the order dated 18.06.2020 has issued order No.1/19 dated 25.11.2019 (Annexure A/1 refer) by exercising the power under FR 56(j) for compulsorily retiring the applicant herein. Since the said Chief Commissioner of Income Tax while conveying the decision of the Representation/Review Committee had admitted that appropriate authority has accepted the recommendation of the said Committee. The said admission clearly established that the Chief Commissioner of Income Tax is not the appropriate authority qua the applicant. However, the impugned order under FR 56(j) has been passed by the said Chief Commissioner of Income Tax, who cannot be competent to exercise the power under FR 56 (j) as an appropriate authority.
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Therefore, in view of the above, the impugned order which has been passed by an incompetent authority thus the same is liable to be quashed.
3.4 without prejudice to the above, learned counsel further submitted that even assuming that the Chief Commissioner of Income Tax, Rajkot, was competent to pass the impugned order, the same is vitiated by arbitrariness and mala fide exercise of power, as the decision is not based on any genuine public interest but has been taken on extraneous considerations with a view to remove the applicant from service.
To substantiate the said submission, learned counsel would Ahmedabad Bench argue that the disciplinary proceedings initiated against the applicant vide charge memorandum dated 28.08.2017 under Rule 14 of CCS (CCA) Rules, 1965 and without concluding the said disciplinary proceedings in accordance with the said rules instead resorted to invoking the provisions of FR 56(j) as a means to dispense with the services of the applicant which amount to utter violation of principles of natural justice as well. Neither the Disciplinary Authority concluded the disciplinary proceedings initiated against the applicant nor the said proceedings had been ordered to be withdrawn or dropped. Therefore, such action on the part of the respondents is bad in law required to be quashed and set aside.
3.5 Learned counsel also submitted that the applicant has maintained an unblemished service record throughout his career and his integrity has consistently been certified as "beyond doubt" in his APARs. In such circumstances, the invocation of FR 56(j) is not based on an objective assessment of service record but is punitive in nature and amounts to a colourable exercise of power.
3.6 Learned counsel also argued that the mandatory requirement of payment of three months' pay and allowances in lieu of notice 2026.05.13 P ANUKUMA 13:34:22+05'30' ::9 :: O.A.No. 120/464/2021 has not been complied with. Prior to his premature retirement, the applicant was drawing emoluments of approximately Rs.1,12,960/- for August and September 2019 and Rs.1,17,395/- for October 2019. However, a sum of only Rs.1,86,183/- was paid to the applicant towards the three months' notice period. On a perusal of the payment details, it is evident that no amount towards transport allowance for the months of December 2019, January 2020, and February 2020 was included. The non- payment of full pay and allowances renders the impugned order invalid and vitiates the entire action under FR 56(j).
In support of above contention, reliance is placed on the Ahmedabad judgment of the Hon'ble Delhi High Court in L.C. Bawa vs. V.K. Bench Kapoor & Another reported in (1987) 32 DLT 184.
3.7 Learned counsel also argued that the impugned order dated 18.06.2020, rejecting the applicant's representation, cannot survive independently as it is founded upon the original order dated 25.11.2019. Since the foundational order itself is without jurisdiction, the consequential order must also fall. The applicant relies upon the settled legal principle that if the foundation is removed, the superstructure collapses, as recognized by the Hon'ble Supreme Court in Coal India Ltd. vs. Ananta Saha, reported in (2011) 5 SCC 142.
3.8 Further learned counsel submitted that even on merits, the Representation Committee has failed to act fairly and has mechanically rejected the applicant's representation.
Learned counsel submitted that the finding of the said Committee that the applicant was prematurely retired on the ground of doubtful integrity is wholly erroneous. The applicant's entire service record, including all ACRs/APARs up to 2018-19, reflects that his integrity was certified as "beyond doubt" by all reporting, reviewing, and accepting authorities. There is no 2026.05.13 P ANUKUMA 13:34:22+05'30' ::10 :: O.A.No. 120/464/2021 adverse material on record to justify such a conclusion. Further, the applicant was never placed in any vigilance or secret list. His case for promotion to the post of Assistant Commissioner of Income Tax was considered by the DPC and kept in sealed cover only due to the pendency of the criminal case and departmental proceedings, and not due to any adverse finding.
3.9 Learned counsel argued that the Representation Committee has failed to apply its mind and has rejected the representation on the ground that no new facts were brought forward. It is submitted that the representation dated 11.12.2019 was the first representation made by the applicant after his premature Ahmedabad retirement, and therefore, such reasoning is wholly untenable and Bench reflects non-application of mind.
3.10 Learned counsel argued that the said Committee has wrongly relied upon the pendency of the criminal case and departmental inquiry while upholding the impugned action. It is well settled that mere pendency of proceedings cannot form the sole basis for premature retirement. Further, the reliance placed by the said Committee on certain judicial precedents is also misconceived, as the same are not applicable to the facts of the present case. The applicant submitted that such reliance is misplaced and legally unsustainable.
3.11 Lastly, learned counsel submitted that the impugned action has caused severe financial hardship to the applicant, as the applicant has a dependent family comprising his wife and two sons pursuing higher education, and his premature retirement has seriously affected his financial stability.The applicant is a sincere and dedicated officer and has not committed any misconduct as alleged. Thus, the impugned action is arbitrary, discriminatory, and legally unsustainable and prayed for applicant's reinstatement with all consequential benefits.
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Learned counsel also submitted that in the event of reinstatement, the applicant is willing to refund any retiral benefits received pursuant to the impugned order.
CONTENTIONS OF THE RESPONDENTS
4. Per contra, on receipt of notice issued by this Tribunal, Ms. R.R. Patel, learned counsel appeared for the respondents and have filed reply denying the claim of the applicant.
4.1 Learned counsel submitted that the applicant submitted an application before the CIT (DR), ITAT, Rajkot-cum-DA, alleging bias against the IO vide application dated 05.08.2019. Ahmedabad The said application was forwarded by the DA to the IO vide Bench letter dated 08.08.2019 for his comments. In response, the IO submitted a detailed para-wise report, running into approximately 50 pages, vide his letter. A copy of the said report was forwarded to the applicant vide office letter dated 04.09.2019, calling upon him to submit his specific comments on each and every point by 17.09.2019. The applicant vide letter dated 13.09.2019, sought additional time to submit his comments on the IO's report. Accordingly, vide office letter dated 17.09.2019, further time was granted to him. Thereafter, the applicant submitted his detailed comments on the IO's report on the bias application vide his letter dated 23.09.2019. The said comments of the applicant were forwarded to the IO vide office letter dated 01.10.2019 for his further comments by 19.10.2019. The IO submitted his comments on the same vide letter dated 17.10.2019. In adherence to the principles of natural justice, the said comments were once again forwarded to the applicant vide office letter dated 21.10.2019, seeking his reply/comments by 30.10.2019. The applicant, vide letter dated 30.10.2019, submitted his comments on the IO's response to the same. Thereafter, considering the facts of the case, the issues 2026.05.13 P ANUKUMA 13:34:22+05'30' ::12 :: O.A.No. 120/464/2021 raised in the bias application, and the comments and counter- comments exchanged between the applicant and the IO, the DA passed an order dated 08.11.2019 rejecting the request of the applicant for change of the IO.
4.2 Learned counsel also submitted that due procedure was duly followed while disposing of the said bias application. The applicant was given ample opportunity to present his case and respond to the IO's report at each stage. The representation dated 23.09.2019, referred to in the present OA No. 464 of 2020, was also duly considered.
4.3 Learned counsel also submitted that as per CCIT, Rajkot's Ahmedabad Bench Order No.1/2019 dated 25.11.2019, the applicant was paid a sum equivalent to three months' pay and allowances, calculated at the same rate at which he was drawing immediately prior to his retirement, as the applicant was prematurely retired from service under Fundamental Rule 56(j) vide Order No. 01/2019 dated 25.11.2019, with effect from 26.11.2019. Further, the pay bill for the month of November 2019 was prepared on 22.11.2019, i.e., prior to the issuance of the premature retirement order. Accordingly, the applicant was initially paid full pay and allowances for the entire month of November 2019. Subsequently, proportionate recovery was made for the period from 26.11.2019 to 30.11.2019, i.e., for five days, after the issuance of the retirement order. The detailed bifurcation of emoluments and recoveries for November 2019 has been annexed.
4.4 It is further submitted that, in compliance with the aforesaid order dated 25.11.2019, the applicant was paid three months' pay and allowances for the period from December 2019 to February 2020. The said payment was made after deduction of applicable taxes at source (income tax), taking into account the 2026.05.13 P ANUKUMA 13:34:22+05'30' ::13 :: O.A.No. 120/464/2021 applicant's total annual income for the financial year 2019- 2020.
REBUTTAL TO THE REPLY OF THE RESPONDENTS
5. In rejoinder, learned counsel submitted that one of the main grievances of the applicant herein is that the impugned decision to prematurely retire him from the services of the Income Tax Department has been taken by an incompetent authority. Learned counsel besides reiterating the above contentions further submitted that the averments made in the reply are wholly vague and amount to a mere formality, without dealing with the various issues raised by the applicant in the present Ahmedabad Bench OA. Further, the deponent who filed the reply has failed to explain as to why the DA, after issuance of the order dated 08.11.2019 rejecting the applicant's bias application, did not proceed further with the departmental disciplinary proceedings and instead resorted to passing the impugned order of premature retirement dated 25.11.2019. This was done by respondent No. 5, who cannot be said to be the "appropriate authority" for the purpose of invoking FR 56(j). This is the core issue involved in the present OA. However, the deponent has chosen to ignore and omit any explanation on this aspect in the said reply.
5.1 Learned counsel reiterated that the non-payment of three months' Transport Allowance renders the impugned order of premature retirement invalid and illegal and vitiates the entire proceedings initiated under FR 56(j), including the impugned order dated 25.11.2019. This position is supported by the law laid down by the Hon'ble Delhi High Court in its judgment dated 01.05.1987 in Civil Writ Petition No. 2297 of 1986 in the case of L.C. Bawa vs. V.K. Kapoor & Another, reported in (1987) 32 DLT 184. In the present case, the respondents in the 2026.05.13 P ANUKUMA 13:34:22+05'30' ::14 :: O.A.No. 120/464/2021 reply have candidly admitted that the applicant was not paid Transport Allowance while releasing the salary for the said three months.
5.2 Learned counsel also submitted that after filing of the present OA, the applicant submitted two RTI Applications dated 14.02.2022, one addressed to the CPIO in the office of the Pr. CCIT, Gujarat, Ahmedabad, and the other to the CPIO in the office of the CCIT, Rajkot seeking material information and copies of crucial documents in connection with the decision to prematurely retiring the applicant (Annexures -RJ/1 and RJ/2 refer). The CPIO in the office of Pr. CCIT, Gujarat, Ahmedabad Ahmedabad, upon receipt of the said RTI Application dated Bench 14.02.2022, transferred the query raised in paragraph 2.06 of the application to CBDT, New Delhi, vide communication dated 18.02.2022 (Annexure-RJ/3 refer). Similarly, the CPIO in the office of CCIT, Rajkot, upon receipt of the said RTI Application, issued a communication dated 23.02.2022 (Annexure-RJ/4 refer), wherein, apart from providing one document, it was stated that the application had been partly transferred to Pr. CCIT, Gujarat, Ahmedabad, as certain information was likely to be available there. As such it appears that the CPIO in the office of Pr. CCIT, Ahmedabad, upon receipt of the communication dated 23.02.2022 from Rajkot, transferred the matter to CBDT, New Delhi, vide communication dated 04.03.2022 (Annexure-RJ/5 refer). Thereafter, the CPIO, Pr. CCIT, Ahmedabad, vide communication dated 15.03.2022 (Annexure-RJ/6 refer), provided certain information to the applicant. The CPIO in CBDT Headquarters, New Delhi, vide communication dated 22.03.2022 (Annexure-RJ/7 refer), informed the applicant that no records were available in respect of an officer by the name "Jarnel B Singh." Further, vide communication dated 2026.05.13 P ANUKUMA 13:34:22+05'30' ::15 :: O.A.No. 120/464/2021 30.03.2022 (Annexure-RJ/8 refer), the applicant was informed that copies of the minutes of the meetings of the Representation Committee held on 28.01.2020 and 28.02.2020 could not be disclosed as they are exempt under the RTI Act. Upon payment of the prescribed fees, the applicant received copies of certain documents from the CPIO in the office of Pr. CCIT, Ahmedabad, vide replies dated 31.03.2022 and 01.04.2022 (Annexure-RJ/9 and Annexure-RJ/10 refer respectively).
5.3 Learned counsel argued that on a careful perusal of the documents obtained under the RTI Act, and in light of the reluctance of the authorities to furnish certain crucial Ahmedabad information, it becomes evident that the decision to prematurely Bench retire the applicant has been taken by an incompetent authority, de hors the rules, and for extraneous considerations, as elaborated in the present OA. Thus, it is submitted that the present case is a fit one for exercise of jurisdiction by this Tribunal under the Administrative Tribunals Act, 1985 to quash and set aside the impugned decision of premature retirement and to grant all consequential reliefs as prayed for in the OA.
6. We have heard learned counsel for the parties and perused the pleadings available on record as well as the judgments on which reliance is placed by the applicant's counsel as noted above.
7. It emerges from the records that the applicant was initially appointed as an ITI on 13.01.1993 pursuant to selection by the Staff Selection Commission and was thereafter promoted to the post of Income Tax Officer (ITO) in the year 2001 by the then Chief Commissioner of Income Tax, Gujarat Zone. It is not in dispute that while serving as an ITO, the applicant came to be implicated in a CBI trap case on 22.02.2013 allegedly demanding and accepting illegal gratification of Rupees Ten thousand, consequently, the applicant came to be placed under 2026.05.13 P ANUKUMA 13:34:22+05'30' ::16 :: O.A.No. 120/464/2021 suspension w.e.f. 22.2.2013. Thereafter, in pursuance of the sanction accaorded by the competent authority in the respondent r department, CBI Gandhinagar filed a charge sheet before the Special CBI Court, Ahmedabad on or about 19.08.2013. In the meantime, the applicant's suspension came to be revoked by the respondent and reinstated him to the post of ITO on 6.2.2014. The said criminal case/proceeding is still pending adjudication before Learned Special CBI Court, Ahmedabad.
7.1 Thereafter, as noted hereinabove, undisputedly a departmental inquiry under Rule 14 of the CCS (CCA) Rules, 1965 was Ahmedabad initiated against the applicant in the year 2017 vide charge Bench memorandum dated 28.08.2017 on the basis of the same set of allegations levelled in the charge sheet submitted by the CBI.
7.2 It emerges from the record that during the departmental inquiry held against the applicant, he submitted an application requesting to drop the disciplinary proceedings or keep the same in abeyance in view of the pendency of the criminal/CBI case against him. However, the same was not acceded to by the DA vide letter dated 19.6.2018. Further it is noticed that the applicant has submitted a representation dated 23.9.2019 before the CIT (DR) ITAT, cum Disciplinary Authoritoy complaining about the biased manner in which the IO has been conducting the inquiry against him and requested for the change of present IO having a thorough knowledge of handing the departmental proceedings. However, the said application of the applicant has been rejected by the by the CIT (DR), ITAT cum Disciplinary Authority, Rajkot vide order dated 8.11.2019.
7.3 It is further not in dispute that during the pendency of aforesaid disciplinary proceeding instituted against the applicant as well the pendency of criminal proceeding before the CBI Court 2026.05.13 P ANUKUMA 13:34:22+05'30' ::17 :: O.A.No. 120/464/2021 Ahmedabad the applicant was prematurely retired from service under the provisions of FR 56(j) vide Order No.1/2019 dated 25.11.2019 issued by the Chief Commissioner of Income Tax, Rajkot, (CIT) w.e.f. 25.11.2019 (Annx-A/1) which is impugned in this OA.
7.4 It is not disputed that the applicant submitted a representation dated 11.12.2019 against the order of premature retirement, which was considered by a three-member Representation Committee and the said Representation Committee upheld the decision of premature retirement, and the same was communicated to the applicant by the CIT, Rajkot vide order Ahmedabad dated 18.06.2020(Annx-A/2) which is also impugned in this Bench OA.
7.5 It is also not in dispute that certain payments such as CGEGIS benefits and provident fund dues were released to the applicant consequent upon the premature retirement. It is an admitted position between the parties that the disciplinary proceedings and the criminal case were pending at the time of invocation of FR 56(j) and the same form part of the background material considered by the respondents.
8. In view of the aforesaid undisputed facts and submissions of the learned counsel for the parties, we are of the view that the following issues are required to be adjudicated in this case:
a) Whether the impugned order dated 25.11.2019 under FR 56(J) is without jurisdiction, having been passed by an incompetent / non-appropriate authority?
b) Whether the action of premature retirement is arbitrary, mala fide, or a colourable exercise of power, not based on genuine public interest?
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c) Whether non-payment of full three months' pay and allowances (including Transport Allowance) vitiates the impugned order?
d) Whether the order dated 18.06.2020 of the Representation Committee is sustainable, particularly in light of alleged non-application of mind?
e) Whether the applicant is entitled to reinstatement with consequential benefits?
9. With regard to issue as noted in para 7 above, i.e., Whether the impugned order dated 25.11.2019 under FR 56(j) is without Ahmedabad jurisdiction, having been passed by an incompetent / non- Bench appropriate authority, we observe that it is a settled position of law that the power under FR 56(j) can be exercised only by the "appropriate authority", which is the authority competent to make substantive appointment to the post in question as held by the Hon'ble Supreme Court in Baldev Raj Chadha v. Union of India, reported in (1980) 4 SCC 321, the relevant portion of which is reproduced as under:-
"5. His principal contentions, not all the secondary details, alone need detain us. His first challenge is to the competence of the Accountant General compulsorily to retire him because, according to the appellant, he is not the "appropriate authority" within the meaning of the rule. The appointing authority who actually appointed the appellant was the C & AG, but the AG retired him on the assumption that he had the requisite power. Article 311(1) insists that a civil servant shall not be dismissed or removed by an authority "subordinate to that by which he was appointed". The appellant, by parity of reasoning, argues that the AG, being subordinate to the C & AG, has no power to retire him. The fallacy in the argument lies in the confusion between "dismissal" and "compulsory retirement". The two cannot be equated and the constitutional bar cannot be operative. Therefore, we have to find, on an independent enquiry, as to who is the appropriate authority under FR 56(j)(i). Under Note 1 to FR 56, the authority entitled to make substantive appointments is the appropriate authority to retire government servants under the said Rules."
2026.05.13 P ANUKUMA 13:34:22+05'30' ::19 :: O.A.No. 120/464/2021 In the present case, undisputedly the applicant has been appointed as ITO by the Chief Commissioner of Income Tax.(CCIT). The said CCIT is also a disciplinary authority in the case of applicant herein. For the purpose of administrative convenience the post of Principal Commissioner of Income Tax has been created due to cadre restricting and therefore, the respondent explained that the CCIT being appointing authority ol the applicant the power vested with the said authority to act as appropriate authority under FR 56(j). In view of this, we are of the considered opinion that the impugned order cannot be said to be passed by incompetent authority.
10. With regard to issue b) as noted in para 7 above, i.e., whether the action of premature retirement is arbitrary, mala fide, or a colourable exercise of power, not based on genuine public interest, before delving upon this issue, we deem it appropriate to Ahmedabad refer the Hon'ble Supreme Court judgment in the case of Bench Pramod Kumar Bajaj v. Union of India, reported in (2023) 11 SCC 466, in which extensively the Hon'ble Apex Court noted catena of judgments on premature retirement based on the FR 56(J), the relevant portion of which is reproduced below:-
"16. The provision of Fundamental Rule 56(j) reads as under:
"FR 56(J) : The appropriate authority shall, if it is of the opinion that it is in the public interest so to do, 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, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) In any other case after he has attained the age of 55 years."
17. As is apparent from a perusal of the aforesaid provision, it takes in its fold two elements -- the first one is the absolute right of the Government to retire an employee and the second is the requirement of meeting the condition of public interest for doing so. The provision also provides for a prior notice of at least three 2026.05.13 P ANUKUMA 13:34:22+05'30' ::20 :: O.A.No. 120/464/2021 months to the outgoing employee and mandates that the said provision can be invoked to retire a government servant only after he has attained the age of 55 years.
18. We are conscious of the fact that the scope of judicial review in respect of an order of compulsory retirement from the service, is fairly limited. The law relating to compulsory retirement has been the subject-matter of discussion in a number of cases where certain settled legal principles have been laid down which are being elucidated hereinbelow.
19. The object of compulsory retirement of a government servant was highlighted by this Court in Officers' Assn. v. Allahabad Bank [Officers' Assn. v. Allahabad Bank, (1996) 4 SCC 504 : 1996 SCC (L&S) 1037] in the following words : (SCC pp. 508 & 512, paras 5 & 17) Ahmedabad "5. The power to compulsorily retire a Bench government servant is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in the service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration. Generally speaking, Service Rules provide for compulsory retirement of a government servant on his completing certain number of years of service or attaining the prescribed age. His service record is reviewed at that stage and a decision is taken whether he should be compulsorily retired or continued further in service. There is no levelling of a charge or imputation requiring an explanation from the government servant. While misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held -- and there is no duty to hold an enquiry -- is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal they form the very basis on which the order is made, as pointed out by this Court in Shyam Lal v. State of U.P. [Shyam Lal v. State of U.P., (1954) 1 SCC 572 : AIR 1954 SC 369] and State of Bombay v. Saubhagchand M. Doshi [State of Bombay v. Saubhagchand M. Doshi, 1957 SCC 2026.05.13 P ANUKUMA 13:34:22+05'30' ::21 :: O.A.No. 120/464/2021 OnLine SC 48 : AIR 1957 SC 892] . Thus, by its very nature the power to compulsorily retire a government servant is distinct and separate from the power to punish him by way of removal, dismissal, etc. for misconduct. A government servant who is compulsorily retired does not lose any part of the benefit that he has earned during service. Thus, compulsory retirement differs both from dismissal and removal as it involves no penal consequences.
***
17. The above discussion of case-law makes it clear that if the order of compulsory retirement casts a stigma on the government servant in the sense that it contains a statement casting aspersion on his conduct or character, then the court will Ahmedabad treat that order as an order of punishment, Bench attracting provisions of Article 311(2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order, the court would infer therefrom that the real intention of the Government was to punish the government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it."
(emphasis supplied)
20. In Union of India v. J.N. Sinha [Union of India v. J.N. Sinha, (1970) 2 SCC 458] it has been observed that : (SCC pp. 460-61, paras 8-9) 2026.05.13 P ANUKUMA 13:34:22+05'30' ::22 :: O.A.No. 120/464/2021 Fundamental Rule 56(j) does not in terms require that any opportunity should be given to the government servant concerned to show cause against his compulsory retirement. It says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. If that authority bona fide forms that opinion the correctness of that opinion cannot be challenged before courts though it is open to an 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.
21. On similar lines were the observations made by this Court in Swami Saran Saksena v. State of U.P. [Swami Saran Saksena v. State of U.P., (1980) 1 SCC 12 : 1980 SCC (L&S) 129] : (SCC p. 14, para 3) Ahmedabad "3. Several contentions have been raised in this Bench appeal by the appellant, who appears in person. In our judgment, one of them suffices to dispose of the appeal. The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for. This conclusion follows inevitably from the particular circumstances, among others, that the appellant was found worthy of being permitted to cross the second efficiency bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second efficiency bar the appellant was considered to have worked with distinct ability and with integrity beyond question, yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is 2026.05.13 P ANUKUMA 13:34:22+05'30' ::23 :: O.A.No. 120/464/2021 no evidence to show that suddenly there was such deterioration in the quality of the appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order."
22. In Baldev Raj Chadha v. Union of India [Baldev Raj Chadha v. Union of India, (1980) 4 SCC 321 : 1981 SCC (L&S) 1] , emphasising the fact that exercise of powers under Fundamental Rule 56(j) must be bona fide and promote public interest, this Court observed that : (SCC pp. 321-22) "The whole purpose of Fundamental Rule 56(j) is to weed out the worthless without the punitive Ahmedabad extremes covered by Article 311 of the Bench Constitution. But under the guise of "public interest" if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. The exercise of power must be bona fide and promote public interest.
An officer in continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement cannot be compulsorily retired on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms."
23. In Ram Ekbal Sharma v. State of Bihar [Ram Ekbal Sharma v. State of Bihar, (1990) 3 SCC 504 : 1990 SCC (L&S) 491] it was observed that in order to find out whether an order of compulsory retirement is based on any misconduct of the government servant or the said order has been made bona fide, without any oblique or extraneous purpose, the veil can be lifted. Following are the pertinent observations made in the said decision :
(SCC p. 516, para 32) "32. On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in 2026.05.13 P ANUKUMA 13:34:22+05'30' ::24 :: O.A.No. 120/464/2021 innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes.
Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the government servant concerned as has been held by this Court in Anoop Jaiswal case [Anoop Jaiswal v. Union of India, (1984) 2 SCC 369 : 1984 SCC (L&S) 256] . This being the position the respondent State cannot defend the order of compulsory retirement of the appellant in the Ahmedabad instant case on the mere plea that the order has Bench been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide."
(emphasis supplied)
24. In State of Orissa v. Ram Chandra Das [State of Orissa v. Ram Chandra Das, (1996) 5 SCC 331 : 1996 SCC (L&S) 1169] this Court observed as follows : (SCC p. 332, para 3) "3. ... It is needless to reiterate that the settled legal position is that the Government is empowered and would be entitled to compulsorily retire a government servant in public interest with a view to improve efficiency of the administration or to weed out the people of doubtful integrity or who are corrupt but sufficient evidence was not available to 2026.05.13 P ANUKUMA 13:34:22+05'30' ::25 :: O.A.No. 120/464/2021 take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service. But the Government, before taking the decision to retire a government employee compulsorily from service, has to consider the entire record of the government servant including the latest reports."
25. In State of Gujarat v. Suryakant Chunilal Shah [State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 : 1999 SCC (L&S) 313] , a case where the State Government had challenged the judgment of the Division Bench of the High Court of Gujarat that had held that the order of compulsory retirement passed against the respondent therein was bad, as there were no adverse entries in his Confidential Report and his integrity was not doubtful at any stage, this Court held Ahmedabad thus : (SCC pp. 543-44, para 28) Bench "28. There being no material before the Review Committee, inasmuch as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll entries subsequent to the respondent's promotion to the post of Assistant Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the case, was punitive having been passed for the collateral purpose of his immediate removal, rather than in public interest."
26. In State of Gujarat v. Umedbhai M. Patel [State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314 : 2001 SCC (L&S) 576] , this Court has delineated the following broad principles that ought to be followed in matters relating to compulsory retirement : (SCC p. 320, para 11) "11. The law relating to compulsory retirement has now crystallised into a definite principle, which could be broadly summarised 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.
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(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 Ahmedabad Bench 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."
27. In Nand Kumar Verma v. State of Jharkhand [Nand Kumar Verma v. State of Jharkhand, (2012) 3 SCC 580 : (2012) 1 SCC (L&S) 663] this Court has once again highlighted the permissibility of ascertaining the existence of valid material by a court for the authorities to pass an order of compulsory retirement and observed thus : (SCC p. 590, para 34) "34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy."
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(emphasis supplied)
28. In a recent judgment in Nisha Priya Bhatia v. Union of India [Nisha Priya Bhatia v. Union of India, (2020) 13 SCC 56 : (2021) 1 SCC (L&S) 211] , confronted with the question as to whether action taken under Rule 135 of the Research and Analysis Wing (Recruitment Cadre and Service) Rules, 1975 is in the nature of "a penalty or a dismissal clothed as compulsory retirement" so as to attract Article 311 of the Constitution of India, this Court has held that "the real test for this examination is to see whether the order of compulsory retirement is occasioned by the concern of unsuitability or as a punishment for misconduct".
For drawing this distinction, reliance has been placed on the judgment in State of Bombay v. Saubhagchand M. Doshi [State of Bombay v. Saubhagchand M. Doshi, Ahmedabad 1957 SCC OnLine SC 48: AIR 1957 SC 892], where a Bench distinction was made between an order of dismissal and order of compulsory retirement in the following words:(Saubhagchand M. Doshi case [State of Bombay v. Saubhagchand M. Doshi, 1957 SCC OnLine SC 48 :
AIR 1957 SC 892] , AIR p. 895, para 9) "9. ... Under the rules, an order of dismissal is a punishment laid on a government servant, when it is found that he has been guilty of misconduct or inefficiency or the like, and it is penal in character, because it involves loss of pension which under the rules would have accrued in respect of the service already put in.
An order of removal also stands on the same footing as an order of dismissal, and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for re-appointment, one who is removed is. An order of retirement differs both 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, inasmuch as the person retired is entitled to pension proportionate to the period of service standing to his credit."
10.1 Having regard to the above observations of the Hon'ble Supreme Court, we find that the material on record in the present case does not disclose that the impugned action was taken in bona fide 2026.05.13 P ANUKUMA 13:34:22+05'30' ::28 :: O.A.No. 120/464/2021 exercise of power in public interest, which is a sine qua non for invoking FR 56(j). The facts clearly reveal that a regular departmental inquiry/proceedings for major penalty under Rule 14 of the CSS (CCA) Rules, 1965 instituted against the applicant was pending no fault on the part of the applicant and immediately after rejection of the applicant's request for change of IO, the respondents chose to invoke FR 56(j) instead of proceeding with the inquiry.
It is not in dispute that The applicant's service record, including his APARs, consistently reflects that his integrity was certified as "beyond doubt" and no adverse material has been Ahmedabad brought on record to justify the conclusion that he had become Bench a liability to the administration. In terms of the principles laid down in State of Gujarat v. Suryakant Chunilal Shah (supra) and State of Gujarat v. Umedbhai M. Patel (supra), compulsory retirement cannot be resorted to as a shortcut to avoid disciplinary proceedings, nor can it be based on absence of relevant material. The timing and circumstances of the impugned action thus clearly indicate that the power has been exercised for an extraneous purpose, rendering the action a colourable exercise of power and punitive in nature.
10.2 Further, it is well settled that although the satisfaction under FR 56(j) is subjective, the same must be founded on objective and relevant material. As held in Nand Kumar Verma v. State of Jharkhand (supra) and Swami Saran Saksena v. State of U.P. (supra), the Court is entitled to examine whether there exists any material justifying such satisfaction. In the present case, the respondents have not demonstrated the existence of any contemporaneous adverse material and appear to have relied merely on the pendency of a criminal case and disciplinary proceedings, which by themselves cannot form the basis for 2026.05.13 P ANUKUMA 13:34:22+05'30' ::29 :: O.A.No. 120/464/2021 compulsory retirement. The absence of any such material renders the impugned action arbitrary and unsustainable.
10.3 Moreover, the surrounding circumstances also indicate that the impugned order is punitive in nature, though couched in innocuous language. In Ram Ekbal Sharma v. State of Bihar reported in (1990) 3 SCC 504, the Hon'ble Supreme Court observed that in order to find out whether an order of compulsory retirement is based on any misconduct of the government servant or the said order has been made bona fide, without any oblique or extraneous purpose, the veil can be lifted. Following are the pertinent observations made in the said decision : (SCC p. 516, Ahmedabad para 32) Bench "32. On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the government servant concerned as has been held by this Court in Anoop Jaiswal case [(1984) 2 SCC 369 : 1984 SCC (L&S) 256]. This being the position the respondent State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide."
Thus, the Court can lift the veil to ascertain whether the order is in reality founded on allegations of misconduct. In the 2026.05.13 P ANUKUMA 13:34:22+05'30' ::30 :: O.A.No. 120/464/2021 present case, the action is clearly linked to the allegations forming the subject matter of the pending criminal case and departmental inquiry, which were yet to be adjudicated. Therefore, the impugned order is nothing but a punitive measure in disguise, passed in violation of the safeguards under Article 311 of the Constitution, and is liable to be struck down on this ground as well. The issue is answered accordingly.
11. With regard to issue c) as noted in para 7 above, i.e., whether non-payment of full three months' pay and allowances (including Transport Allowance) vitiates the impugned order, we observe that Under FR 56(j), it is mandatory that the Government servant Ahmedabad is either given three months' notice or paid three months' pay Bench and allowances in lieu thereof. This requirement is not directory but mandatory in nature. Judicial pronouncements have consistently held that "pay and allowances" must include the full emoluments which the employee was drawing, and any shortfall in such payment renders the order invalid. The principle that statutory conditions must be strictly complied with has been reiterated by the Hon'ble Supreme Court in Ananta Saha (supra), wherein it was held that if the foundational requirement is defective, the entire action collapses (doctrine of sublato fundamento cadit opus). In the present case, the admitted position that Transport Allowance was not paid to the applicant for the relevant three-month period clearly establishes that there was incomplete compliance with the mandatory requirement. Consequently, the impugned order stands vitiated on this ground alone as well.
11.1 The above findings is supported by the Hon'ble Delhi High Court judgment in the case of L.C. Bawa v. V.K. Kapoor (supra), the relevant portion of which is reproduced as under:-
"6. In the case in hand admittedly no notice was given by the respondents of the petitioner before the passing of the impugned 2026.05.13 P ANUKUMA 13:34:22+05'30' ::31 :: O.A.No. 120/464/2021 order, but an undated cheque in the sum of Rs. 6,677.25 was issued by Municipal Corporation of Delhi in favour of petitioner. That cheque was drawn on the State Bank of India, Chandni Chowk branch Delhi and, on presentation, was dishonoured by the bank on 31-3-1986 for the reason that the cheque required to be dated. It, thus means that the issuance of this cheque by the respondents to the petitioner was no payment to him towards his three months' pay and allowances, and the contention of the learned counsel for the respondents that it was the duty of the petitioner, while receiving this cheque from the respondents, to have asked the respondents to put a date therein, or at any rate after this cheque was dishonoured, he ought to have got it dated from the respondents and then presented the same to the bank for encashment, is fallacious and cannot be accepted, as it was the duty of the respondents to give a proper cheque to the petitioner before or at the time of passing the impugned order and the defective cheque having been dishonoured by the bank on presentation was tantamount to non-payment. Even the subsequent rectification of the cheque would not cure the defect for the reason that the payment of Ahmedabad three months' pay and allowances is mandated to be made Bench before or simultaneously with the passing of the order of premature compulsory retirement. So, on this score the impugned order is invalidated. The payment of three months pay and allowances to the petitioner is not a matter of his right to collect the same subsequently. There are a number of authorities supporting this view. National Iron and Steel Co. Ltd. v. The State of West Bengal, AIR 1967 S.C. 1206 (1) dealt with the case of a workman who was retrenched and S. 25F of the Industrial Disputes Act provides that a workman employed in any industry should not be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice had empired, or the workman had been paid in lieu of such notice, wages for the period of the notice. That provision of law was not complied with inasmuch as the notice in that case was to the effect that the employee's services were terminated with effect from 17-11-1958 and that he would get one month's wages in lieu of notice of termination of his services and he was further asked to collect his dues from the cash office on November 20, 1958 or thereafter during the working hours. With those facts it was held by the Supreme Court as follows:--
"That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked collect his dues afterward. As there was no compliance with S. 25F, we need not consider the other points raised by the learned counsel......"
7. The same view was also taken in two other authorities of the Supreme Court reported as The State of Bombay v. The Hospital Mazdoor Sabha, AIR 1960 Supreme Court 610 (2) (at 613) and The State Bank of India v. Shri N. Sundra Money, (1976) 1 SCC 822 : AIR 1976 S.C. 1111 (3) (at 1113) which also dealt with the question of retrenchment of a workman under S. 25F of Industrial Disputes Act, 1947 and the time of payment of compensation to him.
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8. In the case Krishna Kamal Ghosh v. Union of India, 1980(1) SLR 53 (4), Fundamental Rule 56(j) recording compulsory retirement and the question of payment of three months' salary in lieu of notice was the subject matter of consideration and it was held as follows by a Division Bench of the Calcutta High Court at page 532:--
"As the petitioner appellant is being retired compulsorily under Rule 56(j) the respondent, in our opinion, must along with the order of compulsory retirement pay the officer three months' pay and allowances as admissible to him on the date when the order of compulsory retirement is made."
It was also found in that case that the petitioner therein was entitled to pay and allowances for three months which would be atleast Rs. 300 more than which was paid to him and on that account also it was held that Rule 56(j) was patently violated. The order of compulsory retirement was, therefore, set aside.
9. In Jamshed Newroji Sarkary v. The Zonal Manager, Food Ahmedabad Corporation of India and another 1978 (1) SLR 471 (5) Andhra Bench Pradesh High Court was dealing with the same question with reference to regulation to Regulation, 22(2) of Food Corporation of India (Staff) Regulation 1976 which reads as follows:--
"The appropriate authority shall, if it is of the opinion that it is in the interest of the Corporation to do so, have the absolute right to retire category I, II, III and IV employee after he has attained the age of 50 years, by giving him a notice or three months' pay and allowances in lieu of such notice."
The language used in Regulation, 22(2) is identical with the language of Fundamental Rule 56(j). While interpreting the Regulation, 22(2) Andhra Pradesh High Court observed as follows:--
"What do these words by giving him a notice......of three months....or three months' pay and allowances in lieu of such notice" imply? Do they no insist on payment and service of order of termination simultaneously? There are words like 'termination forth with by payment to the employee'. But the words 'the appropriate authority shall retire the Government Servant by giving him three months' notice or three months' pay and allowances in lieu of such notice' make it abundantly clear that the three months' notice or three months' pay and allowances in lieu of such notice are condition precedent for the retirement to follow. For the retirement to be effective, termination of service has to be simultaneously with the payment to the employee of the three months' pay and allowance."
10. In P.V. Subbaiah v. The Railway Board, New Delhi, 1982 Labour & Industrial Cases 1523 (6) Andhra Pradesh High Court was dealing with a similar question vis-à-vis Rule 2045(h) of Railway Establishment Code which reads as follows:--
2026.05.13 P ANUKUMA 13:34:22+05'30' ::33 :: O.A.No. 120/464/2021 "2046(h). Notwithstanding anything contained in this rule, the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any railway servant giving him notice of not less than three months' pay and allowances in lieu of such notice."
It was held as under:--
"It is clear from the language employed that before or at the time when he is asked to retire, the employer must be given three months' pay and allowances. The language used is in para materia with the language used in S. 25F of the Industrial Disputes Act."
11. The same question was also decided similarly in A. Muthuswamy v. The Divisional Personnel Officer, 1987 (1) SLR 54 (7) (at 557) and the order of compulsory retirement was held vitiated for non-payment of three months' pay and allowances in lieu of notice simultaneously with the service of the order of compulsory retirement."
Ahmedabad Bench 12. With regard to issues d) and e) as noted in para 7 above, i.e., whether the order dated 18.06.2020 of the Representation Committee is sustainable, particularly in light of alleged non- application of mind and whether the applicant is entitled to reinstatement with consequential benefits, before adverting on it, we deem it appropriate to reproduce the order dated 18.06.2020 passed by the Representation Committee, which reads as under:-
"No.CCIT/RJT/order 56(j)/repr-JBS/2020-21/437 Date: 18.06.2020 ORDER Fundamental Rule (FR) 56(j) absolutely empowers an Appropriate Authority to compulsorily retire an employee in Group 'B' service after he has attained the age of 50 years.
2. The Review Committee constituted in terms of FR 56(j) considered the entire service record of Shri Jarnel B. Singh and recommended him to be compulsorily retired in public interest.
3. The Appropriate Authority of Central Government considering the aforesaid recommendation of the Review Committee by its order dated 25.11.2019 compulsorily retired Shri Jarnel B. Singh with effect from forenoon of 26.11.2019.
4. The Central Government on 16.12.2019 received representation by the aforesaid Officer against the said order dated 25.11.2019.
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5. The aforesaid representation was forwarded to the Representation Committee constituted in terms of DoPT OM No. 25013/01/2013 Estt.A.IV dated 27.08.2019.
6. On 20.01.2020 and 28.02.2020, the Representation Committee considered the aforesaid representation and perused the order dated 25.11.2019, minutes of the Review Committee, the entire service record of the aforesaid Officer and other documents/records considered by the Review Committee and arrived at the conclusion that no interference is required to be made in the order dated 25.11.2019 passed by the Appropriate Authority of the Central Government.
7. Accordingly, the undersigned is directed to communicate the aforesaid decision of the Representation Committee to Shri J. B. Singh. Observations of the Representation Committee vis-a-vis his representation and reasons recorded in the minutes of the meeting dated 20.01.2020 and 28.02.2020 are as under:-
8.1 The main points raised in his representation are:-
Ahmedabad (i) Order was issued without following the guidelines on the Bench subject and without giving an opportunity to submit his version.
(ii) He has always performed his duties and responsibilities in an effective manner keeping the best interest of the organization and the Government.
(iii) Retiring him appears to be an act of prejudice considering the ongoing departmental proceedings against him.
(iv) To issue necessary orders for settlement of all the retirement benefits like Gratuity, pension commutation and regular pension.
The Committee found that the Officer has been compulsorily retired on the ground of doubtful integrity in public interest. The Committee took note of the Minutes of the Review Committee, charge sheets and records of prosecution etc. 8.2 The Committee observed that:
a) No new facts have been brought out by the Officer making the representation.
b) Shri J. B. Singh had allegedly demanded bribe from an assessee for issuing a certificate u/s 80G.
c) Shri J. B. Singh was reportedly apprehended by CBI and the bribe money of Rs. 10,000/- was allegedly recovered from his office.
d) The recording of conversation between Shri J. B. Singh and the assessee allegedly corroborates the allegations of demand and acceptance of bribe. The hand wash of Shri J. B. Singh allegedly showed that the amount was accepted by him.
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e) The Review Committee considered gravity of charges and allegations made against the Officer for a major part of his career.
f) The Committee also took note that the principles of natural justice do not apply in the case of compulsory retirement under FR 56(j).
g) Though the adjudication proceedings in respect of charges may be pending but the question here is whether during pendency of such case involving serious charges, the Officer with such questionable conduct should be continued in public service or should be compulsorily retired under FR 56(j) from the public service in the interest of the public and better administration. The Committee took note of the judgement of the Hon'ble Apex Court in Shyam Lal vs. State of UP, 1955 (1) SCR 26 : AIR 1954 SC 369 held that:
"an officer who is compulsorily retired does not lose Ahmedabad any part of the benefit that he has earned. On Bench compulsory retirement he will be entitled to the pension etc. that he has actually earned. There is no diminution of the accrued benefit. It is said that compulsory retirement, like dismissal or removal, deprive the officer of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get an enhanced pension and this is certainly a punishment. It is true that wide sense the officer may consider himself punished but there is a clear distinction between the loss of benefit already earned and the loss of prospect of earning something more. In the first case it is a present and a certain loss and certainly a punishment but the loss of future prospect is too uncertain, for the officer may die or be otherwise incapacitated from serving a day longer and cannot, therefore, be regarded in the eye of law as a punishment. The more important thing is to see by compulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal. The answer is clearly in the negative".
h) The Committee also noted that the Hon'ble Supreme Court in the same context, in Union of India vs. M. E. Reddy & Anr., (1980) 2 SCC 45 held that person compulsorily retired by the employer after putting in sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma.
i) All the material available on records, inter-alia including those relating to the charge-sheet in departmental enquiry and record of prosecution sanction of criminal proceedings lodged by CBI, APAR dossier have been considered by the Committee, took a holistic view and concluded that his conduct is such that his continuance in service would be a menace to public service and injurious to public interest and 2026.05.13 P ANUKUMA 13:34:22+05'30' ::36 :: O.A.No. 120/464/2021 service of Shri J. B. Singh are no longer useful to the general administration.
Keeping in view the above observations, the Committee does not find any reason to interfere in the decision of the Appropriate Authority to prematurely retire Shri J. B. Singh in public interest. Considering overall facts and circumstances involved in the case, the Committee is of the view that action taken under 56(j) is fully justified."
9. Appropriate Authority has accepted the observations and findings of the Representation Committee as mentioned in para 8.2 above and disposed off representation dated 11.12.2019 of Shri Jarnel B. Singh, received in the Department on 16.12.2019 accordingly."
12.1 From the perusal of the aforesaid order dated 18.06.2020 passed by the Representation Committee, we find that the same is also Ahmedabad Bench not sustainable in law, inasmuch as the same reflects a complete non-application of mind, as the said Committee has failed to consider the entire service record of the applicant and has mechanically rejected the representation on untenable grounds, ignoring the consistent record of integrity and absence of adverse material. Further there is no point in at all recorded by the said committee that due to fault on the part of the applicant disciplinary proceeding is not concluded nor any order of the disciplinary authority in respect to pending departmental inquiry has been taken into consideration. Under the circumstances, such a perfunctory review does not meet the requirements of law as laid down in the judgments governing the field.
12.2 It is apt to state that the consideration of representation against premature retirement must be real, meaningful, and based on an objective evaluation of the entire service record. In Baldev Raj Chadha v. Union of India (supra) and above noted judgments, the Hon'ble Supreme Court held that ignoring relevant material and relying selectively on adverse factors renders the decision arbitrary. It is equally well settled that a mechanical rejection of representation without proper application of mind amounts to 2026.05.13 P ANUKUMA 13:34:22+05'30' ::37 :: O.A.No. 120/464/2021 violation of principles of natural justice. In the present case, the Representation Committee has rejected the applicant's representation on the ground that no new facts were brought on record, even though the representation dated 11.12.2019 was the first representation submitted by the applicant after his premature retirement. Further, despite the applicant's consistent APARs record reflecting "integrity beyond doubt", the Committee has relied upon the pendency of criminal and departmental proceedings. Such reasoning clearly demonstrates non- application of mind and renders the decision legally unsustainable.
Ahmedabad 12.3 In view of the aforesaid discussion, it is evident that the Bench impugned action suffers from multiple legal infirmities, namely absence of relevant material, violation of mandatory statutory conditions, and non-application of mind as well as the fact that in the present case, where the disciplinary inquiry was pending and the statutory time limit for completion of inquiry had already lapsed, the sudden invocation of FR 56(j) gives rise to a strong inference that the power has been exercised not in public interest but as a device to bypass the disciplinary process as stipulated under CCS (CCA) Rules 1965 that too the respondent has already invoked the said provision to institute the departmental proceeding against the applicant. There is no material placed on record which establishes that applicant required to be treated as dead wood. Therefore, the short cut invoked by the respondent and such action thereon clearly falls within the ambit of colourable exercise of power and consequently, the impugned orders are liable to be quashed and set aside, and the applicant would be entitled to reinstatement in service with all consequential benefits, as if the impugned order had never been passed.
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12.4 We further observe that it is a settled proposition that where an order of compulsory retirement is found to be arbitrary, or based on no material, the necessary consequence is restoration of the employee to service. In S.R. Venkataraman v. Union of India reported in (1979) 2 SCC 491, the Hon'ble Supreme Court quashed the order of compulsory retirement and restored the service status of the employee.
The relevant portion of the said judgment is reproduced as under:-
"5. We have made a mention of the plea of malice which the Ahmedabad appellant had taken in her writ petition. Although she made an Bench allegation of malice against V.D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976. It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is however, quite different. Viscount Haldane described it as follows in Shearer v. Shields [(1914) AC 808, 813] :
"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."
Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.
6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard. C.J. in Pilling v. Abergele Urban District Council [(1950) 1 KB 636 : (1950) 1 All ER 76] where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court 2026.05.13 P ANUKUMA 13:34:22+05'30' ::39 :: O.A.No. 120/464/2021 to which an appeal lies can and ought to adjudicate on the matter.
7. The principle which is applicable in such cases has thus been stated by Lord Esher, M.R. in Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras [(1890) 24 Q BD 371, 375 : 62 LT 440] :
"If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion."
This view has been followed in Sadler v. Sheffield Corporation [(1924) 1 Ch 483] .
8. We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done Ahmedabad under such a mistaken belief might almost be said to have been Bench done in bad faith; and in actual experience, and as things go these may well be said to run into one another.
9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of government servants only in the "public interest", to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must therefore be held to be infected with an abuse of power.
10. So when it has been conceded by Mr Lekhi that there was nothing on the record which would justify the impugned order dated March 26, 1976, of the appellant's premature retirement under clause (j)(i) of Rule 56 of the Fundamental Rules, and that the Government was not in a position to support that unfair order, that order must be set aside, for it amounts to an abuse of the power which was vested in the authority concerned. The appeal is allowed with costs and it is ordered accordingly."
12.5 The consistent judicial view is that when an order is void, the employee is deemed never to have been retired. Applying these principles, as the impugned orders are held to be vitiated on afovenoted detailed reasoning, the applicant is entitled to reinstatement with all consequential benefits, including continuity of service and arrears of salary. At this stage, it is necessary to mention that the applicant admittedly declared his 2026.05.13 P ANUKUMA 13:34:22+05'30' ::40 :: O.A.No. 120/464/2021 willingness to refund any retiral benefits further reinforces the equity in granting such relief.
13. In the result, for the forgoing reasons, the present OA is allowed in the following terms:
13.1 The impugned order No.1/2019 (Annx-A/1) passed by the respondent no.5 under FR 56 (j) and an order dated 18.06.2020 (Annx-A/2) are quashed and set aside.
13.2 The respondents are directed to grant all consequential benefits to the applicant in accordance with the extent service rules by adjusting the amount paid to the applicant including the Ahmedabad reinstatement of the applicant herein (if he has not attained the Bench age of superannuation).
13.3 It is expected that the aforesaid directions will be complied with within 60 days from the date of receipt of certified copy of this order.
14. No order as to costs.
(Dr. Hukum Singh Meena) (Jayesh V.Bhairavia) Member (A) Member (J) RR/Anu 2026.05.13 P ANUKUMA 13:34:22+05'30'