Central Administrative Tribunal - Patna
Satyendra Kumar vs Employees Providend Fund Organisation ... on 24 January, 2025
-1- OA/051/00008/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT SITTING AT RANCHI
OA/051/00008/2023
Reserved on : 16.12.2024
Pronounced on : 24.01.2025
CORAM
HON'BLE MR. KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
HON'BLE MR. RAJVEER SINGH VERMA, JUDICIAL MEMBER
Satyendra Kumar, S/o Late Ram Khelawan Prasad, aged about 56 years,
Resident of House No. 47, Teacher's Colony, Post Office Road, PO- Mango,
PS-Mango, Jamshedpur, District- East Singhbhum, Jharkhand, Mob. No.
9534336809.
.... Applicant.
By Advocate - Mr. Prabhat Kumar
Ms. Milan Singh
-Versus-
1. Union of India through the Secretary, Ministry of Labour and
Employment, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001.
2. The Central provident Fund Commissioner, Employees Provident
Fund Organization, Bhavishya Nidhi Bhawan, 14-Bhikaji Cama
Palace, New Delhi-110065.
3. Additional Central Provident Fund Commissioner [BR & JH] and
Appellate Authority, Zonal Office, Employees Provident Fund
Organization [Ministry nof Labour], Government of India,
Bhawishya Nidhi Bhawan, R Block, Road No. 6, Patna, Pin- 800001,
Bihar..
4. Regional Provident Fund Commissioner-1 (Regional Office),
Employee's Provident Fund Organization, Regional Office,
Jharkhand, Bhagirathi Complex, Near Circuit House, Karmtoli,
Ranchi-834001, Jharkhand.
5. The Regional Provident Fund Commissioner [Regional Office],
Employees Provident Fund Organization, PO- Sakchi, PS- Sakchi,
Jamshedpur, District- East Singhbhum-831012, Jharkhand.
6. The Assistant Provident Fund Commissioner, Employees Provident
Fund Organization, PO- Sahebganj, PS- Sahebganj, District-
Sahebganj-816109, Jharkhand.
.... Respondents.
By Advocate(s)- : Shri Sumit Prakash
Shri Amit Sinha, ASC
-2- OA/051/00008/2023
ORDER
Per Kumar Rajesh Chandra, A.M. :- This OA has been filed by the applicant seeking the following relief:-
"(i) To quash and set aside the appellate order No. JH/RO/RNC/ADM-I/56J/456/18111 dated 10.08.2022 wherein the Respondent No. 3 acting as an appropriate/appointing authority has upheld the order of premature retirement while deciding the representation against premature retirement of the applicant.
(ii) To quash and set aside the Office Order No. 325 dated 05.03.2021 whereby the applicant was prematurely retired and relieved from services as per Fundamental Rule 56(J).
(iii) To quash and set aside the notice being No. JH/RO/RNC/ADM-I/FR 56J/2018/18111 dated 01.12.2020 whereby and whereunder he was informed that he shall be retired at the lapse of 3 months from the date of the notice
(iv) To reinstate the applicant with all consequential benefits.
(iv) Any other order, direction that Hon'ble Court may deem fit and proper in the interest of justice. "
2. Brief facts of the case, as per the applicant, are as follows:-
(i) Applicant is aggrieved by notice dated 01.12.2020 (Annexure-1) issued to him suddenly with no prior intimation whereby and whereunder he was informed that it has been recommended in the meeting dated 24.02.2020 that he shall be compulsorily retired under Rule 56(J) of Fundamental Rule and Rule 48 of the CCS(Pension) Rules, 1972 which was affirmed in the meeting dated 25.11.2020. Thereafter, notice was served on him stating that the applicant shall be prematurely retired after lapse of three months from the date of notice. He is further aggrieved by the final order passed by the respondents dated 05.03.2021 (Annexure-2) whereby the applicant was informed that he stands retired and relieved from service w.e.f. 10.03.2021.
(ii) The applicant preferred a representation/appeal dated 29.12.2020 (Annexure-5) requesting for setting aside the notice dated 01.12.2020 after giving fully opportunity which is still pending
-3- OA/051/00008/2023 and not considered before the final order of premature retirement dated 05.03.2021.
(iii) Applicant had earlier approached this Tribunal vide OA No. 339/2021 assailing the above notice dated 01.12.2020 and the final order passed by the respondents dated 05.03.2021. The said OA was disposed of granting liberty to the applicant to prefer petition before the respondents to supplement his appeal dated 29.12.2021 within three months and with direction to the respondents to consider the representation along with appeal dated 29.12.2021, if pending within time as per spirit of the OM dated 28.08.2020 and communicate to the applicant.
(iv) In compliance of above order of Tribunal, applicant preferred a supplementary appeal/representation on 24.01.2022 against the orders of compulsory retirement and later in CP No. 23/2022 the respondents filed show cause annexing the reasoned order dated 10.08.2022 (Annexure-3) and the CP was dropped accordingly vide order dated 13.12.2022.
(v) According to the applicant the aforesaid representations of the applicant were considered in the meeting of the Representation Committee dated 18.05.2022 and decided in terms of OM dated 28.08.2020 without considering the matter in entirety and only on false assumptions.
(iv) It is contended by the applicant that while he was posted at Jamshedpur an FIR was instituted against him in Sadar P.S. Case No. 21/2015 corresponding to the G.R. Case No. 133/2015 for the alleged offences under Sec 376, 377, 417 of the IPC and subsequently charges were framed on 05.09.2016. After facing the trial vide order dated 30.01.2017 (Annexure-10) passed in S.T. Case No. 225/2015 by Additional Sessions Judge-I, West Singhbhum, Chaibasa the applicant was honourably acquitted as none of the charges were proved against him.
(v) For the same and similar charges, the applicant was given a charge sheet for initiation of departmental proceedings based on a newspaper report only about the alleged criminal case and the
-4- OA/051/00008/2023 disciplinary authority without considering the materials on record and without discussing the evidence concluding arbitrarily in a most biased and unreasonable manner that the applicant was guilty and passed the punishment order dated 17.05.2019 (Annexure-11). On his appeal instead of exonerating the applicant, punishment of applicant was reduced to withholding of 5 increments with cumulative effect vide order dated 16.03.2020. The applicant assailed the said order before this Tribunal in OA No. 328/2021 wherein the Tribunal vide order dated 23.11.2021 (Annexure-12) quashed and set aside the appellate order and remitted back to the appellate authority to pass a fresh order on appeal.
(vi) The applicant has averred that the respondents again in an arbitrary and mechanical way passed a fresh appellate order dated 24.05.2022 wherein the respondent no. 2 reduced the punishment to withholding of 3 increments of pay with cumulative effect without exonerating the applicant.
(vii) As per the applicant, the punishment as well as the appellate order is completely against the principles of natural justice and cannot sustain in the eyes of law since the case of the applicant on same and similar facts has already been addressed in the criminal case for which he has languished in custody for more than 19 months. Proceeding on the same set of facts attracts double jeopardy apart from causing mental trauma and pain to the applicant and his family for absolutely frivolous allegations. Since in the criminal case the applicant has already been honourably acquitted, punishing the applicant on the same set of charges is against the rule of law as laid down in various judicial pronouncements.
(vii) It is further submitted by applicant that the order of premature retirement appears to be punitive in nature as the allegation of regular absenteeism, history of inappropriate behaviour, misconduct, non-performance of duties etc. are all false and have never been enquired into by the respondents and has been raised for the first time in the aforesaid order.
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(viii) It is further contended by applicant that aggrieved with his APAR for the period 2019-20, wherein it is mentioned that applicant lacks computer knowledge, requires technical training and hence was given a low score, he preferred a representation dated 03.11.2020 (Annexure-15) but no reply was received by him and the respondents have taken his negative APAR as one of the grounds for the order of premature retirement under Rule 56(j) of Fundamental Rules and Rule 48 of the CCS (Pension) Rules, 1972. Applicant has also enclosed a photocopy of the computer training from IIT, Kharagpur as Annexure -17.
(ix) It is alleged by applicant that though assessment in his APAR has been made in October, 2020 but decision to retire the applicant prematurely had already been taken in the meeting of the Screening Committee dated 24.02.2020 which, according to the applicant, raises suspicion and malice in the action of the respondents.
(x) According to the applicant, the order of premature retirement is contrary to the judgment of the Apex Court in the case of State of Gujarat Vs. Umedbhai M. Patel, 200(3) SCC 314 and various other cases including K. Kandaswamy Vs. Union of India & Anr. AIR 1996, 1995 SCC (6) 162 which states that the employee can only be retired prematurely in public interest. The order of premature retirement is also against the order passed in the case of Ramchandra Raju Vs. State of Orissa (1994) 3 SCC 424 as the entire service record of the applicant has not been considered as a whole and except for the APAR of 2018-19 there was no adverse comment or any negative remark in his service. Hence, the OA.
3. Respondents no. 2 to 6 in their written statement have submitted that the applicant was compulsorily retired under FR 56(J) after following due procedure as he was under the consideration zone for screening in the quarter Jan-2020 to Mar-2020 and the screening committee recommended his name for compulsory
-6- OA/051/00008/2023 retirement in its meeting dated 25.11.2020. So it cannot be said that a notice dated 01.12.2020 was issued to the applicant suddenly. Since the notice period of three months expired on 09.03.2021 the applicant was relieved from the services and duties of CBT w.e.f. 10.03.2021 as per Rules of FR 56(J). It is further submitted by the respondents that findings of the representation committee dated 18.05.2022 was based on several incidents/misconduct in respect of the applicant. The respondents have enclosed various documents as at Annexure-A to Annexure-O in support of their contention with regard to applicant's misconduct /unbecoming of Government servant between 04.01.1999 to 20.05.2016. As regards the criminal case, the respondents have submitted that the applicant cannot be said to be honourably acquitted on merit as he got the benefit of prosecutrix and her mother turning hostile during the trial. In the departmental enquiry instituted against the applicant on 18.03.2015 wherein four articles of charges were framed with regard to his different misconducts including immoral misconduct. While submitting that criminal and departmental proceedings are two separate proceedings which can run simultaneously as per various judicial pronouncements, the respondents have also cited the five Judge bench judgment of Hon'ble Supreme Court in R.P. Kapur Vs. UOI & Anr. (AIR 1964 SC 787) wherein it is held that if the trial of the criminal charge results in conviction, disciplinary proceedings is bound to follow against the public servant so convicted and even in
-7- OA/051/00008/2023 case of acquittal proceedings may follow when the acquittal is other than honourable. The respondents have denied the allegation of applicant that negative APAR of 2019-20 was on the grounds of compulsory retirement. It is reiterated by the respondents that the decision of premature retirement of the applicant has been taken by the screening committee in public interest after considering the entire service history, behaviour, misconduct and non-performance of duty. As regards computer training, the respondents have submitted that IIT Kharagpur had given 10 days training for how to open and shut down the computer system, save the file and making e-mail etc. and applicant has no knowledge about excel sheet, word, e-court proceeding, and day to day work in office by computer system. It is further submitted by respondents that the order of compulsory retirement under Rule 56(J) of FR is neither stigmatic nor does it entail civil consequences and, therefore, compulsory retirement does not prejudice a Government servant nor is there any violation of the fundamental right of the applicant and that there is no arbitrariness on the part of the review committee. While mentioning that the scope of judicial review is very limited in cases of compulsory retirement and is permissible on the limited grounds such as non-application of mind or malafides, the respondents have prayed for dismissal of the OA.
4. In his rejoinder the applicant while denying contention made by the respondents in their WS has mentioned that no departmental
-8- OA/051/00008/2023 proceeding was ever initiated against the applicant nor was he granted any punishment and the documents produced by the applicant were only show causes issued to him which, according to the applicant, were superficial since there was no material to prove the allegations made against the applicant. While enclosing various supporting documents from Annexure-18 to Annexure-25 the applicant has alleged that the show causes issued to him were unfounded and only meant to harass him and therefore pleads innocence.
5. Heard the learned counsel for the parties and perused the materials available on record.
6. Learned counsel for the parties mainly argued on the basis of their respective pleadings.
7. Learned counsel for applicant during hearing placed reliance on the order of this Tribunal vide a detailed order dated 22.04.2022 passed in OA No. 262/2020 (Vijay Lakra Vs. UOI & Ors.) in a similar case quashed the impugned order of compulsory retirement on the ground that the impugned order do not justify the grounds of public interest and directed the respondents to reinstate the applicant in service from the date of compulsory retirement and pleaded similar relief in this OA also. On the contrary, the learned counsel for the respondents placed reliance on an elaborate order of this Tribunal dated 17.11.2022 in OA No. 124/2022 (Md. Mobin Alam Vs. UOI & Ors.) wherein this Tribunal dismissed the OA seeing no legal infirmity
-9- OA/051/00008/2023 or violation of rules in the impugned order and prayed for dismissal of the OA.
8. At the outset, we have perused the orders cited by the learned counsel for the parties as mentioned above. The various rulings of Hon'ble Supreme Court basically lays down the principle of compulsory retirement which are reproduced as below:-
(a) In State of Gujarat Vs. Umedbhai M. Patel Hon'ble Supreme Court settled the law relating to compulsory retirement under the FR 56 (j)as follows.
"11. 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 un-communicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a shortcut to avoid Departmental enquiry when such a 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.
(b) In the case of Rajasthan SRTC Vs. Babu Lal Jangir, Hon'ble Supreme Court allowed the appeal holding as under .
"28. It hardly needs to be emphasized that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non- application of mind, malafide, perverse, or arbitrary or if there is non-compliance of statutory duty by the statutory authority. Power to retire compulsorily, the government servant in terms of service rule is absolute, provided the authority concerned forms a bonafide opinion that compulsory retirement is in public interest."
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(c) The object of compulsory retirement under Rule FR 56(J) 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. Hon'ble Supreme Court in Union of India vs Col J N Sinha[ (1970) 2 SCC 458] held as under:-
"There is no denying the fact that in all organizations, and more so in government organizations, there is a good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(J) holds the balance between the rights of the individual government servant and the interest of the public. While a minimum service is guaranteed to the government servant, the government is given power to energize its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. "
9. We note that applicant has been retired vide the impugned order dated 28.04.2021/29.04.2021 (Annexure A/1 series) under Rule 56(j) of the Fundamental Rules. The rule is reproduced below for the sake of brevity.
" 56(j) Notwithstanding anything contained in this rule, 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."
Evidently, the scope of judicial review in orders of retirement under FR 56(j) is limited as the rule provides absolute right to the appropriate authority to retire a government servant in public interest.
10. On the issue, whether the observation of Summary Committee that applicant was a fit case for compulsory retirement under FR 56(j) was beyond its assigned charter and whether that unduly influenced the Review Committee's decision, we note that role of Internal Screening Committee has been elaborated in the DoPT OM dated 28.08.2020 and the EPFO Circular dated 14.06.2017. According to
-11- OA/051/00008/2023 DoPT OM, the Internal Committee "will ensure that the service record of the Government servants being reviewed, along with a summary, bringing out all relevant information, is submitted to the Cadre Authorities at least three months prior to the due date of review." Role and function of the Internal Screening Committee as provided at para 7(i) of the EPFO circular reads as under.
"7. Roles & Function of Appropriate Authorities and Committees:
(i) Internal Screening Committee :The Committee consisting to the extent possible of those senior officers who have had occasion to know about the work and conduct of the officers who have had occasion to know about the work and conduct of the officer proposed to be reviewed is constituted as a standing arrangement to render assistance to the Review Committee. The committee shall ensure that the service records of employees reviewed along with the summary bringing out all relevant information is submitted to the authority at least three months before the due date of review. It has to prepare a comprehensive brief on each officer, for being placed before the Review Committee. The Committee shall verify and scrutinize the register of employees who are due to attain the age of 50/55 years or complete 30 years of service at the beginning of each quarter."
Evidently, the Screening Committee is required to scrutinize cases of those officials whose further utility to the organization is considered doubtful and prepare the summary bringing out relevant details relating his utility to the organization. Further, the Screening Committee submits its report to the Cadre authorities three months before the due date of review and not directly to the Review Committee. The fact that a case has been referred to the Review Committee for review implies that it has been found by the Screening Committee and cadre authority as a fit case for action under FR 56 (j). Hence, we do not find any irregularity whatsoever in the recommendation of the Screening Committee. The Review Committee being completely independent of the Screening Committee, it is rather improper and even frivolous to say that it got influenced by the views of Screening Committee.
11. During the hearing, a specific query was put to the counsel for the applicant whether the applicant was granted any promotion or whether there was any acknowledgement by the organization of any of his positive contributions in recent years. Ld. counsel mentioned
-12- OA/051/00008/2023 that his last posting/promotion was on 01.11.2008 as Senior Social Security Assistant.
12. We also observe record that the applicant's misconduct started from the year 1999 and continued till 2016 with regard to repeated non-performance of duty. The applicant was even accused of rape in the trial court though acquitted later on account of turning hostile of the prosecutrix and her mother during trial. The order of this Tribunal passed in OA No. 262/2020 as mentioned above is clearly distinguishable from the present case since the applicant in that case was awarded a penalty of withholding of two increments only with non-cumulative effect and since he was given promotion to the post of Senior Social Security Assistant in 2016 the Tribunal accordingly questioned how in just three years he lost complete utility to the organization and his continuation was no longer in public interest.
13. It is clear from above discussions that the Review Committee's recommendation cannot be called arbitrary or without any material. The Committee's report shows the consideration of applicant's service records including the APARs, memorandums and warnings issued in past for dereliction of punctuality and diligence as well as absenteeism, applicant's general conduct reflected through registration of FIR, his arrest and subsequent acquittal by the trial court on account of turning hostile of the prosecutrix and her mother during trial. There were no promotions or any good work by the
-13- OA/051/00008/2023 applicant in recent years which could mitigate the adverse service records or warnings etc. The Representation Committee, after examining in detail various points raised by the applicant in his representation, upheld the decision to retire the applicant under FR 56(j) in public interest. Thus, we find no legal infirmity or violation of rules in the impugned order.
14. Considering the facts and legal aspects discussed above, we find that the OA is devoid of merit and deserves dismissal. The OA is accordingly dismissed. No order as to cost.
Sd/- Sd/-
[RAJVEER SINGH VERMA] KUMAR RAJESH CHANDRA]
Judicial Member Administrative Member
Srk.