Central Administrative Tribunal - Allahabad
Dinesh Kumar Shukla vs Central Provident Fund Commissioner on 23 July, 2025
O.A./377/2020 with O.A./280/2023
(Reserved on 21.07.2025)
Central Administrative Tribunal, Allahabad
Original Application No.377 of 2020 with
Original Application No.280 of 2023
rd
Pronounced on this the 23 Day of July, 2025.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
O.A./377/2020
Dinesh Kumar Shukla, aged about 56 years, S/o Late Sri Bal Krishna
Shukla (Working as S.S.S.A. office of R.P.F.C.-1 Regional Office,
Kanpur), Permanent R/o- 515-Vijay Garden Pandu Nagar Kanpur, earlier
R/o 48 P.F. Colony Sarvoday Nagar, Kanpur-208005.
.....Applicant
By Advocate: Shri R.K. Dixit
Versus
1. Union of India through the Secretary, Ministry of Labour and
Employment, Government of India, New Delhi.
2. Central Provident Fund Commissioner, Head Office, Bhavishya
Nidhi Bhawan, 14 Bhikaji Cama Place, New Delhi.
3. Additional Central Provident Fund Commissioner (ACPFC-U.P.
Zone), Zonal Office, Uttar Pradesh, Nidhi Bhawan, Sarvodaya
Nagar, Kanpur-208005.
4. Regional Provident Fund Commissioner-I, Regional Office, Nidhi
Bhawan, Sarvodaya Nagar, Kanpur-208005.
5. V.V.B. Singh, Regional Provident Fund Commissioner-I, Regional
Office, Nidhi Bhawan Sarvodaya Nagar, Kanpur-208005.
...Respondents
By Advocate: Shri L.P. Tiwari
Shri Sunil Kumar Gupta
Digitally Page 1 of 23
MADHU signed by
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KUMARI
O.A./377/2020 with O.A./280/2023
Along with
O.A./280/2023
Dinesh Kumar Shukla, aged about 58 years, S/o Late Sri Bal Krishna
Shukla, R/o 117/515 Udaya Garden Pandu Nagar Kanpur Nagar-208005.
.....Applicant
By Advocate: Shri R.K. Dixit
Versus
1. Union of India through the Secretary, Ministry of Labour and
Employment, Government of India, New Delhi.
2. Central Provident Fund Commissioner, Head Office, Bhavishya
Nidhi Bhawan, 14 Bhikaji Cama Place, New Delhi.
3. Regional Provident Fund Commissioner-I, Zonal Office,
Hubli-580025.
4. Regional Provident Fund Commissioner-1, Regional Office, Nidhi
Bhawan, Sarvodaya Nagar, Kanpur-208005.
...Respondents
By Advocate: Shri Chakrapani Vatsyayan
Shri Sunil Kumar Gupta
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) O.A./377/2020 and O.A./280/2023 have been clubbed and heard together and are being decided by a common judgement. Present Original Applications have been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"O.A./280/2023
(i) The Hon'ble Tribunal may graciously be pleased to quash the impugned order dated 30.12.2020 alongwith corrigendum dated 12.1.2021 (Annexure-A-1 to the O.A.) and impugned order dated 29.7.2021 (Annexure-A-2 of O.A.) and direct the respondents to reinstate in service to Digitally Page 2 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 the applicant with immediate effect with all consequential benefits.
(ii) The Hon'ble Tribunal may graciously be pleased to direct the respondents to treat the whole period from date of punishment 30.12.2020 to reinstatement as service for all purpose.
(iii) any other suitable order or direction which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
(iv) award the cost of the application in favour of the Applicant.
O.A./377/2020
(i) The Hon'ble Tribunal may graciously be pleased to quash the impugned order dated 18.10.2019 (Annexure-A- 1 to the O.A.) with all consequential benefits.
(ii) any other suitable order or direction which this Hon'ble
Tribunal may deem fit and proper under the
circumstances of the case.
(iii) award the cost of the application in favour of the Applicant."
2. Brief facts of the cases are that the applicant was appointed in the year 1990 working under the control of respondents on the post of Senior Social Security Assistant (SSSA) Regional Office, Kanpur Region, Kanpur. The Union of All India EPF Staff Federation sent several demands before respondent no.2 and on non consideration of demand, the Union called for a one day token strike on 28.08.2019 on All India Basis. Thereafter, on 04.09.2019, the applicant was issued a show cause notice alleging unauthorised absence from official duties on 28.08.2019 observing that he led the employees of the office to stage a strike on the above date due to which the official work of the office was severely disturbed Digitally Page 3 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 resulting in harassment of subscribers, pensioners and other stakeholder of EPFO. The applicant was asked to submit his reply within two days as to why his unauthorised absence on 28.08.2019 should not be treated as deemed to cause an interruption or break in service under provision of F.R. 17-A and declared accordingly. The applicant submitted his reply on 06.09.2019 denying all the allegations. Subsequently, without conducting any disciplinary proceeding or issuing any charge sheet to the applicant, vide order dated 18.10.2019, the applicant was awarded the punishment of forfeiture of past service up to 28.08.2019 for all purposes viz. pension, increment and leave. The applicant submitted an appeal against the aforesaid punishment order on 20.11.2019 . The respondents also issued transfer orders against the applicant on 25.11.2019 and 26.11.2019 transferring him to another zone without mentioning any protection of pay and seniority. The applicant filed O.A./231/2020 (Umesh Kumar Shukla and others vs. Union of India and others) against the transfer order as well as the relieving orders passed by the respondent. The applicant was then issued a show cause notice dated 21.07.2020 to explain as to why he should not be reverted as Sahyogi on the basis of the verification committee report. The applicant challenged the show cause notice dated 21.07.2020 through O.A./646/2020 which was dismissed as having become infructuous on the information from the respondents that the applicant has been compulsorily retired during the pendency of the said O.A. and in absence of any information from the applicant. Vide Impugned order dated 30.12.2020, the applicant has been compulsorily retired under Rule 56(J) of the Fundamental Rules/Rule 48 of the Central Civil Services (Pension) Rules, 1972 and then the impugned corrigendum to the office order dated 30.12.2020 was issued on 12.01.2021. Being aggrieved, the applicant sent a detailed representation on 10.02.2021 before the Regional Provident Fund Commissioner-I which issued the impugned order dated 29.07.2021 rejecting the claim of the applicant. The applicant moved an appeal/representation before respondent no.2 on Digitally Page 4 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 12.09.2021 and then again on 10.02.2022 and 13.04.2022 but no action was taken even after sending it again through proper channel on 20.09.2022.
3. We have heard learned counsel appearing for the parties.
4. Submission of learned counsel for the applicant is that by means of Original Application No. 377 of 2020, the applicant has challenged the order dated 18.10.2019 whereby the respondents have declared one day service of applicant i.e. 28.08.2019 as dies-non on the ground of absence from duty. Original Application No. 280/2023 has challenged the order dated 30.12.2020 whereby the applicant was compulsorily retired from service under rule 56 (J) along with rule 48 of Central Civil Services (Pension) Rules, 1972 but without any benefit of retirement, until now. He argues that the respondents have admitted themselves that the applicant has attained the age of 55 years on 01.05.2019 and has completed more than 30 years of service on that date and as such as per rule 56 (J), the applicant is entitled for pensionary benefits as the order dated 18.10.2019 has no bar for payment of retiral benefits. It is submitted that the impugned orders passed in both the Original Applications are contradictory to each other and as such the Original Applications are liable to be allowed by this Tribunal. When the respondents passed the order dated 18.10.2019, then the earlier order merged with the same, as they admitted that the applicant has been retired after completion of 30 years of service under FR 56(j). It is also submitted that the applicant has attained the age of superannuation i.e. 60 years on 31.05.2024. The respondents have not complied with their own order under FR 56(j) dated 30.12.2020 and not given any benefit to the applicant after retirement.
5. Learned counsel for the applicant has submitted that the past long services of the applicant for 30 years to the organization had not been reckoned which remained unblemished & blotless with several appreciations from his superiors. The impugned order had been issued only because of the instigation & false complaint Digitally Page 5 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 against the applicant because he (the applicant) had been an active office bearer of the Union and his real brother Umesh Kumar Shukla was working in the office of the applicant holding the Union as a General Secretary, E.P.F staff Union with Registration No. 3023 which is a registered Union. The services of the applicant had always been unquestioned and the authorities had become highly prejudiced against the applicant on his participation on strike on 28.08.2019 for which a call was made by the Union Headquarter New Delhi and it was All India Strike which was called for with due notice against the administration.
6. Learned counsel for the applicant states that the transfer of the applicant to another state was in gross violation of the 'Transfer policy of the Department' as the applicant could have been transferred within U.P only. It is material to mention that not only the applicant but his real brother Umesh Kumar Shukla, General Secretary of the Union and one Mr Rajeva Jha, the Vice President of the Union were also transferred out of state only because they all had participated in the strike dated 28.08.2019 whereas the strike was not declared as 'Illegal' because of due notice. One Mr. Hem Chandra working in office of E.P.F.O shimla and holding the Post of General Secretary of the Union was also transferred to Raipur (C.Garh state) on account of participation in the strike dated 28.09.19 but this illegal transfer was cancelled by CAT Chandigarh as decided in O.A. No. 1305/2019. A similar out of state transfer order for participation in strike was also cancelled by the Hon'ble CAT Chandigarh branch by deciding the O.A. No. 1306/2019. He states that for strike of 28.08.2019, show cause notices were given to 6 employees. The respondents were convinced with the reply made by the five colleagues of the applicant but were willfully not convinced with the reply of the applicant whereas all the other 5 employees had given the same reply as that of the applicant. The reply to the show cause notice of the applicant dated 06.09.19 has not been properly & fairly appreciated on merit by the respondents as the contents of F.R-17-A have been read by the respondents with a prejudiced Digitally Page 6 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 mindset only in the case of the applicant and the said period of one day of legal strike utmost could have been resorted as DIES NON and not the forfeiture of past service allowing the past service of 30 years as qualifying service for pension. It is so because when prejudices are allowed to determine our approaches, the result is certainly biased, as clear from the present case of the applicant.
7. Learned counsel for the applicant contends that F.R-17 A (1) reads as follows," The fact that break in service has not been condoned for purpose of leave travel concession, quasi permanency and to appear at Departmental examinations should & need not influence the appointing authority adversely in deciding the question of condonation of break for counting the past service of the official for purpose of pension. Forfeiture of past service of the applicant is a punishment like 'Dismissal from government service' which is a major punishment under rule 11 of the C.C.S (CCA) rules 1965. Also, the forfeiture of past service which is equivalent to dismissal can't be imposed straightway by an administrative order without conducting a full fledged open inquiry as provided in sub rule (3) to (23) under rule -14 of the C.C.S (CCA) rules 1965. The respondents with a jaundiced eye owing to prejudices have also not read the inherent meaning in depth as contained Government of India's decision below rule 27 of C.C.S (Pension) rules 1972 which runs as follow, " The period of absence not covered by grant of leave shall have to treated as Dies Non for all purposes, ie increment, leave & pension". The all India strike on 28.08.19 has not been declared as illegal. The respondents have not filed any document / notice declaring it illegal by a registered & affiliated trade Union. If, however, it may be termed illegal then the period of absence on 28.08.19 may only be treated as Dias Non for the applicant as "The period of absence" & not the past whole service of the applicant. The position has further been clarified by the Nodal ministry of Personnel P G & Pension vide its O.M. No. 13026/3/2012-Estt (Leave) dated 28.03.2013 relating to FR-17 A which speaks," The said provision inter alia provides that where an individual Digitally Page 7 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 employee remains absent unauthorisedly or deserts the post, the period of such absence (stress laid down) shall be deemed to cause an interruption or break in service of the employees".
8. It is further emphasised by learned counsel for the applicant that in an exactly similar case of application of FR-17, Dias Non & forfeiture of service the M.P High Court in case of Mahesh Kumar Srivastava 2007(3) MPHT 362 has held that order of FR-17 with Dias Non & forfeiture of past service for pension is bad in law without conducting a full fledged open inquiry & giving the charged official opportunity to cross examine the state witnesses. A similar view has been taken by the CAT (Benguluru bench) in O.A. No. 471/2021 in case of Ravish K.N. V/s Union of India decided on 06.06.24.
9. Submission of learned counsel for the respondents is that the applicant and his union declare themselves as 'Industrial Workers' and through a letter dated 02.07.2019, All India EPF Staff Federation (AIEPFSF) has proclaimed that they have protection under Industrial Disputes Act 1947. As such, the O.A. is not maintainable before this Tribunal. He has further argued that the applicant was duly issued a show cause notice as to why his unauthorised absence to duty should not be treated "deemed to cause an interruption or break in service" in terms of provisions of Fundamental Rules (F.R.) 17-A. After considering his reply and according him an opportunity of personal hearing, the impugned order dated 18.10.2019 has been passed. The scope of the aforesaid order is not to decide any kind of punishment or penalty. Treatment of any unauthorized absence in accordance with FR 17-A or Rule 27 of CCS (Pension) Rules, 1972 cannot be termed as any kind of penalty under the Employees' Provident Fund Staff (Classification, Control and Appeal) Rules, 1971.
10. It is further submitted by the respondents that the Head Office vide Office Order No. HRM- IV/14/30/2012/UP/9375 dated 25.11.2019 transferred Shri Dinesh Kumar Shukla, SSSA from RO, Kanpur to ZO, Hublion on administrative grounds with a Digitally Page 8 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 direction to join immediately. Thereafter the RO, Kanpur vide Office Order dated 26.11.2019 relieved Shri Dinesh Kumar Shukla with a direction to join at Zonal Office, Hubballi. Thereafter the ZO, Kanpur vide letter dated 10.12.2019 forwarded the representation dated 26.11.2019 of Shri Dinesh Kumar Shukla, SSSA requesting therein to cancel the transfer order dated 25.11.2019 stating that his wife is ill to ZO, Hubballi. The ZO, Hubballi vide letter dated 01.01.2020 informed ZO, Kanpur that the representation of Shri Dinesh Kumar Shukla will be considered only after his reporting for duty. The Official communicated to ZO Hubballi through a letter that he is unable to take charge stating that he as well as his wife is unwell. The RO, Kanpur vide letter dated 16.01.2020 informed ZO, Hubballi that the Verification Committee constituted to verify the service and other matters in r/o Shri Rajesh Kumar Shukla, SSSA (Retired) and his relative (including Shri Dinesh Kumar Shukla) has submitted report dated 10.01.2020 in r/o of Shri Dinesh Kumar Shukla and forwarded the same for necessary action. ZO, Hubballi vide letter dated 05.03.2020 directed Shri Dinesh Kumar Shukla to report for duty within a week, but applicant has not given reply for the same. The RO, Kanpur constituted a Verification Committee to verify his service and other matters vide office note no. EPFO/RO/KNP/AVS/F- 77/1084 dated 02.12.2019. The committee submitted its report dated 10.01.2020 to RO, Kanpur. Thereafter ZO, Hubballi issued a Show Cause Notice dated 21.07.2020 to Shri Dinesh Kumar Shukla, SSSA. Since the above-mentioned Show Cause Notice was returned by the Postal Authorities with a remark "Left", ZO, Hubballi vide letter dated 03.09.2020 requested RO, Kanpur to serve the letter and forward the acknowledgement. RO, Kanpur in turn vide their letter dated 24.09.2020 conveyed ZO, Hubballi the serving of the Show cause notice to Shri Dinesh Kumar Shukla, SSSA. The Official has challenged the Show Cause Notice dated 21.07.2020 in OA No. 646/2020 before the Hon'ble CAT, Allahabad Bench. The same has been dismissed by Hon'ble CAT, Allahabad Bench on Digitally Page 9 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 07.12.2021 in the view that the applicant has been compulsory retired from the service during the pendency of this case and nothing sustains. Based on the recommendation of screening committee for periodical review under FR 56(j) and Rule 48 of CCS (Pension) Rules, 1972 at RO, Kanpur, Review Committee of ZO, UP recommended the case of Shri Dinesh Kumar Shukla, SSSA fit for taking action under FR 56(j). It was mentioned in the recommendations of the Review Committee minutes dated 14.02.2020 of ZO, UP that the said Official has been transferred to ZO, Hubballi and was relieved from RO, Kanpur with effect from 26.11.2019 and the committee reviewed his service only up to 26.11.2019 and further recommended to review the services rendered thereafter from 26.11.2019 from ZO, Hubballi and to take action accordingly. Based on the recommendation of minutes of Screening Committee at ZO, Hubballi dated 18.06.2020 , vide minutes dated 02.12.2020 of the Review Meeting Committee at ZO, Hubballi recommended Shri Dinesh Kumar Shukla, SSSA for compulsory retirement under the provision of FR 56(j) and Rule 48 of CCS(Pension) Rules, 1972 on the observation that neither he reported for duty nor he bothered to reply to the Memo dated 05.03.2020 which shows his insubordination and dereliction of duty which is not only against CCS (Conduct) Rules but also hampered the work of Zonal Office, Hubballi badly. Accordingly, ZO, Hubballi vide order dated 30.12.2020 retired Shri Dinesh Kumar Shukla, SSSA from the service of EPFO. A Corrigendum to the above order dated 30.12.2020 was issued later on 12.01.2021.
11. Learned counsel for the respondents argued that as per the observations of Hon'ble Supreme Court of India in the State of Gujarat Vs. UmedBhai M Patel, 2001(3) SCC 314 it may be noted that ordinarily, the order of compulsory retirement cannot be treated as a punishment coming under Article 311 of the constitution. For review under FR 56(j) and Rule 48 of CCS (Pension) Rules, 1972, the entire service of the official would be considered and it may be noted that the applicants service up to Digitally Page 10 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 26.11.2019 had been reviewed by the Review Committee formed at ZO, UP and thereafter by the Review Committee formed at ZO, Hubballi. Considering the facts stated in verification Committee report dated 10.01.2020 that the applicant was initially appointed as SAHAYOGI on purely temporary/adhoc basis on 11.12.1990 and he was not eligible to appear in Departmental Examination for the post of LDC held on 27/28.08.1991. Reportedly, he managed to appear in the said examination illegally. The applicant has also been found to have been involved in widespread consultancy work apart from running other parallel trades/business. Several other misconducts on the part of the applicant have also been reported in the verification committee findings which are self-explanatory. Based on the recommendations of the Review Committee for review under FR 56(j) and Rule 48 of CCS (Pension) Rules, 1972, Respondent No. 3 has issued an order of compulsory retirement to the applicant.
12. In addition to his arguments as stated above, the applicant, in his rejoinder to the counter arguments of the respondents about non-maintainability of this case before this Tribunal, has submitted that EPF is not an industry nor any industrial work is carried out here. The applicant cannot be assumed to be an Industrial worker. He further argued that sub section 2 of section 28 of Administrative Tribunal Act, 1985, as amended by Act 19 of 86, leads to a conclusion that though the workman can approach Industrial Tribunal, Labour Court or the authority constituted under provision of Industrial Tribunal Act 1947, it cannot be said that a petition under section 19 of the act is not maintainable before the Central Administrative Tribunal or the Labour Court and in case the litigant has chosen the forum of Central Administrative Tribunal, it cannot be said that application is not maintainable. The applicant in support of his claim has also cited the judgment of this Tribunal in the case of Rajendra Prasad Vs Union of India and others (2001) 1 UPLBEC 571, dealing with an identical issue. It is mentioned that EPFO notified under the act 1986 Appendix XVI department wise classification of case (C) Digitally Page 11 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 nationalized public sector autonomous bodies in SL 63, Central Provident Fund Commissioner is notified in the AT Act 1985.
13. We have considered the rival submissions of learned counsel for the parties and gone through the entire documents on record.
14. The rules invoked by the respondents in impugned orders in the two connected O.A.s are as under:-
Fundamental Rule (F.R.) 17-A. is as follows:
Without prejudice to the provisions of Rule 27 of the Central Civil Services (Pension) Rules, 1972, a period of an unauthorized absence--
(i) in the case of employees working in industrial establishments, during a strike which has been declared illegal under the provisions of the Industrial Disputes Act, 1947, or any other law for the time being in force;
(ii) in the case of other employees as a result of action in combination or in concerted manner, such as during a strike, without any authority from, or valid reason to the satisfaction of the competent authority; and
(iii) in the case of an individual employee, remaining absent unauthorizedly or deserting the post, shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession, quasi-permanency and eligibility for appearing in departmental examinations, for which a minimum period of continuous service is required.
Rule 27 of the CCS (Pension) Rules, 1972 is as under:
27. Effect of interruption in service (1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases :-
(a) authorized leave of absence ;
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(b) unauthorized absence in continuation of authorized leave
of absence so long as the post of absentee is not filled substantively ;
(c) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the Government servant dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension ;
(d) transfer to non-qualifying service in an establishment under the control of the Government if such transfer has been ordered by a competent authority in the public interest;
(e) joining time while on transfer from one post to another.
Rule 56 (J) of Fundamental Rules provides 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.
Rule 48 of Central Civil Services (Pension) Rules, 1972 provides that-
An employee has the right to retire, ➤ After attaining the age of 50 years for Group A and B officers who had entered service before attaining the age of 35 years ➤ All Group C employees after attaining the age of 55 years ➤ All employees on completion of 30 years qualifying service.
At any time after a Government servant has completed thirty years' qualifying service
(a) He may retire from service, or Digitally Page 13 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023
(b) He may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension. Provided that
(a) A Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and
(b) The appointing authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice.
15. The respondents have argued that Compulsory retirement cannot be treated as punishment and relied on the judgement of the Hon'ble Supreme Court in the case of State of Gujarat Vs. UmedBhai M Patel, 2001(3) SCC 314. The aforesaid judgment of the Hon'ble Apex Court which highlights the law relating to compulsory retirement, is reproduced below:-
"Leave granted.
The respondent, during the relevant time, was an Executive Engineer working in the Narmada Development Department of the State of Gujarat. He was placed under suspension on 22.5.1986 pending disciplinary proceedings. An enquiry was initiated against him alleging that he had committed acts of misuse of power in connection with the purchase of Tarpauline. While the respondent was continuing under suspension, the Govt. of Gujarat passed an order of compulsory retirement by invoking Clause (aa) (i) (1) of Rule 161 (1) of the Bombay Civil Services Rules, 1959, with effect from 13.2.1987. The respondent was due to retire on superannuation by the end of August 1988, his date of birth being 17.8.1930. In the order of compulsory retirement, it was stated that the case relating to continuance of the respondent in Govt. service beyond the age of 50 and 55 years was reviewed. The respondent challenged the order of his compulsory retirement before the High Court of Gujarat and by the impugned judgment, the Division Bench of the High Court set aside that order on the ground that the same was punitive in nature and was passed with an oblique purpose to punish the respondent for the charges which were neither investigated nor had the respondent been given reasonable opportunity of hearing. This judgment is challenged before us.
We heard the learned counsel for the appellant-State as also learned counsel for the respondent. Elaborate arguments were advanced by the counsel for the appellant-State that the Digitally Page 14 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 impugned order is not punitive in nature and that the services of the respondent were dispensed with in public interest. It was argued that the respondent's services were no longer useful and that he had committed acts whereby the State Govt. suffered pecuniary losses. It was also contended that the order of compulsory retirement passed by the State Govt. Is not by way of punishment and the respondent is entitled to get all the benefits.
Learned counsel for the respondent, on the other hand, supported the impugned judgment and contended that the order of compulsory retirement was passed on the specific allegations, for which the respondent was under suspension awaiting formal enquiry, and under that circumstance, the impugned order of compulsory retirement was patently illegal. Reliance was placed on various decisions of this Court.
This Court, in a number of cases, had occasion to consider the law relating to compulsory retirement and has laid down various principles. In State of Orissa & Ors vs. Ram Chandra Das (1996) 5 SCC 331, this Court held in paragraph 3 of the judgment as follows :
"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 are corrupt but sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service. But the Government, before taking such decision to retire a government employee compulsorily from service, has to consider the entire record of the government servant including the latest reports.
[Emphasis supplied] In State of Gujarat & Anr. vs. Suryakant Chunilal Shah (1999) 1 SCC 529, the State Govt. challenged the judgment of the Division Bench of the Gujarat High Court by which the order passed by the Single Judged was set aside. The Division Bench held that the order of compulsory retirement was bad and thereupon the State of Gujarat filed an appeal. In that case, two criminal complaints had been filed against the respondent-Asstt. Food Controller; one alleging that he had illegally issued cement permits to some bogus institutions; and second that he had fabricated some rubber stamps of the Government for the purpose of issuing illegal permits. But, there were no adverse entries in his confidential records and his integrity was not doubted at any stage. However, the authorities thought that the investigation and subsequent prosecution of the respondent would take long time and it would be better to dispense with his services by compulsorily retiring him. The review committee, therefore, recommended his compulsory retirement. This Court, in paragraph 28 of the judgment, held as under:
"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 Digitally Page 15 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 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."
In Baikuntha Nath Das & Anr. vs. Chief District Medical Officer, Baripada & Anr. (1992) 2 SCC 299, following the decision in Union of India vs. J.N. Sinha (1970) 2 SCC 458, this Court held thus:
"(I) An order of compulsory retirement is not a punishment. It implies no stigma or any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant, compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether.
While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -- in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter -- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. The circumstance by itself cannot be a basis for interference."
In Allahabad Bank Officers' Association & Anr. vs. Allahabad Bank & Ors. (1996) 4 SCC 504, this Court, in paragraph 5 of the judgment on page 508, held as under:
"The power to compulsorily retire a 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 Digitally Page 16 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 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. ....... .......
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 vs. State of U.P. [AIR 1954 SC 369]".
In Union of India & Ors. vs. Dulal Dutt (1993) 2 SCC 179, this Court reiterated the view held right from the case of R.L. Butail vs. Union of India (1970) 2 SCC 876 and Union of India vs. J.N. Sinha (1970) 2 SCC 458 "that an order of a compulsory retirement is not an order of punishment. It is actually a prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government. Very often, on enquiry by the Court, the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order."
In another decision in J.D. Srivastava vs. State of M.P. & Ors. (1984) 2 SCC 8, in paragraph 7 of the judgment, it was observed by this Court as under:
"But being reports relating to a remote period, they are not quite relevant for the purpose of determining whether he should be retired compulsorily or not in the year 1981, as it would be an act bordering on perversity to dig out old files to find out some material to make an order against an officer."
The law relating to compulsory retirement has now crystallized into definite principles, 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.
(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.
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(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.
In the instant case, there were absolutely no adverse entries in respondent's confidential record. In the rejoinder filed in this Court also, nothing has been averred that the respondent's service record revealed any adverse entries. The respondent had successfully crossed the efficiency bar at the age of 50 as well
55. He was placed under suspension on 22.5.1986 pending disciplinary proceedings. The State Govt. had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. The respondent had only less than two years to retire from service. If the impugned order is viewed in the light of these facts, it could be said that the order of compulsory retirement was passed for extraneous reasons. As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the allegations which had not been proved and in the absence of any adverse entries in his service record to support the order of compulsory retirement, we are of the view that the Division Bench was right in holding that the impugned order was liable to be set aside. We find no merit in the appeal, which is dismissed accordingly. However, three months' time is given to the appellant-State to comply with the directions of the Division Bench, failing which the respondent would be entitled to get interest at the rate of 18% for the delayed payment of the pecuniary benefits due to him."
16. Vide the impugned order dated 18.10.2019, following order has been passed against the applicant:
"1. In terms of Rule 17-A of the Fundamental Rules, the unauthorised absence on 28.08.2019 by Shri Dinesh Kumar Shukla, SSSA has caused interruption or break in his service and this fact shall be recorded forthwith in the Service Book of Shri Dinesh Kumar Shukla, SSSA; and
2. In terms of Rule 27 (1) of the C.C.S. (Pension) Rules, 1972, the unauthorised absence on 28.08.2019 by Shri Dinesh Kumar Shukla, SSSA has caused interruption in his service entailing forfeiture of his past service up to 28.08.2019 for all purposes viz. Pension, Increment and Leave."Digitally Page 18 of 23
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17. Thereafter, vide impugned order dated 30.12.2020 with corrigendum dated 12.07.2021, the following order has been passed against the applicant:
ORDER "WHEREAS, the Regional Provident Fund Commissioner-1 based on the Review Committee Report of UP Zone and Review Committee Report of Hubli Zone under FR 56(j) and Rule 48 CCS (Pension) Rules, 1972 is of the opinion that it is in the public interest to do so;
NOW THEREFORE, in exercise of the powers conferred by clause (j) of Rule 56 of the Fundamental Rules/Rule 48 of the Central Civil Services (Pension) Rules, 1972, the Regional PF Commissioner-I hereby retires Shri Dinesh Kumar Shukla, Sr. Social Security Assistant (SSSA) with immediate effect, he having already attained the age of 55 years on 01.05.2019 and having already completed thirty years of service qualifying for pension on 11.12.2020.
Shri Dinesh Kumar Shukla, SSSA shall be paid a sum equivalent to the amount of his pay plus allowance for a period of three months calculated at the same rate at which he was drawing them immediately before his retirement in lieu of his notice period of three months.
CORRIGENDUM TO OFFICE ORDER DATED 30.12.2020 The paragraph 2 of the Office Order No. KN/ HBL/ZO/2020-21/1/5875/2020 dated 30.12.2020 may be read as under.
NOW THEREFORE, in exercise of the powers conferred by clause (j) of Rule 56 of the Fundamental Rules/Rule 48 of the Central Civil Services (Pension) Rules, 1972, the Regional PF Commissioner-I hereby retires Shri Dinesh Kumar Shukla, Sr. Social Security Assistant (SSSA) with immediate effect, he having already attained the age of 55 years on 01.05.2019 and having already completed thirty years of service on 11.12.2020. The other paragraph of the Office Order No. KN/HBL/ZO/2020- 21/1/5875/2020 shall remains the same."
18. Applying rule 17 A of the Fundamental Rules, the unauthorised absence of the applicant on 28.08.2019 has been treated as interruption or break in service and invoking rule 27 of the CCS (Pension) Rules, 1972, the respondents have ordered that the interruption in service shall entail forfeiture of his past service up to 28.08.2019 for all purposes viz. Pension, Increment and Leave. The applicant in his support against the aforesaid order has relied Digitally Page 19 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 on the case of Mahesh Kumar Srivastava 2007(3) MPHT 362 decided by the Madhya Pradesh High Court and the same is reproduced below:
"12. It is clear from the aforesaid Rule 10 that major penalty includes reduction of lower time of scale of pay. In the case of dies non when the pension of an employee will be affected then certainly in my opinion it would amount to major penalty and for that purpose as per the provision of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 a regular departmental enquiry is necessary and since in the present case no regular departmental enquiry is being conducted. Hence, the order of dies non is bad in law."
CAT (Benguluru bench) in O.A. No. 471/2021 in case of Ravish K.N. V/s Union of India decided on 06.06.24 which has been relied upon by the applicant has held as under:
"31. In view of the facts of the case as well as the rule position, there is no doubt that all possible opportunity has been afforded the applicant to furnish the required documents to justify the medical leave sought by him. There is failure on his part to furnish supporting medical documents. He has also claimed 'medical grounds' for EL, whereas the application shows it to be on 'personal grounds'. The competence of the controlling officer for sanctioning leave upto a month or asking for clarification and documents before forwarding his application is not at all in question in the present matter. On the work front, pendency is shown to have been accumulated by the applicant and it was communicated to him by his controlling officer. Thus, the order of dies non is fully justified. However, in the light of the order of the Hon'ble Madhya Pradesh High Court in the case of Mahesh Kumar Shrivastava and of the Hon'ble Kerala High Court in the case of K. Ibrahimkutty supra, since separate proceedings were not initiated, we are inclined to grant the relief to the effect that the order of dies non will not lead to forfeiture of his past service for the purpose of pensionary benefits.
Order in O.A./377/2020
19. Taking into account, the above facts, rule position and case laws, forfeiture of the entire service of the applicant before 28.08.2019 for the purpose of pension without conducting any regular inquiry proceeding is unjust and against the rules as it amounts to a major punishment. In the present case, no regular departmental inquiry has been conducted and the period of break in service is also of merely one day. Besides, there is no hard and fast rule to forfeit Digitally Page 20 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 the entire previous service of an employee in case of break in service for the purpose of pension since the authorities may treat an interruption in service as per their discretion with respect to its effects on pension in a reasonable manner. In such a situation, forfeiture of the entire long service of the applicant from his appointment in the year 1990 till 28.08.2019 for the purpose of pension without any regular inquiry proceeding is bad in the eyes of law and liable to be quashed.
20. Accordingly, the impugned order dated 18.10.2019 in O.A./377/2020 stands quashed to the extent of the order of forfeiture of past services of the applicant up to 28.08.2019 for the purpose of pension. The respondents are directed to grant all the consequential benefits to the applicants arising from this order.
21. O.A./377/2020 stands allowed to the above extent. All associated M.As. also stand disposed of. No costs.
Order in O.A./280/2023
22. So far as the compulsory retirement of the applicant under the provision of FR 56(j) and Rule 48 of CCS(Pension) Rules, 1972 is concerned, it has been made on the recommendation of the Review Committee which observed that neither the applicant reported for duty nor he bothered to reply to the Memo dated 05.03.2020 which shows his insubordination and dereliction of duty which is not only against CCS (Conduct) Rules but also hampered the work of Zonal Office, Hubballi badly. Thus, the respondents have claimed that the compulsory retirement of the applicant vide order dated 30.12.2020 is in public interest and not a punitive measure.
23. From the judgment of the Hon'ble Apex Court in the case of State of Gujarat Vs. UmedBhai M Patel (supra), which the respondents have themselves relied on in support of their argument, it can be drawn that the object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in the Digitally Page 21 of 23 MADHU signed by KUMARI MADHU KUMARI O.A./377/2020 with O.A./280/2023 service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration. In the aforesaid judgment, the Hon'ble Apex Court has referred to its decision in J.D. Srivastava vs. State of M.P. & Ors. (1984) 2 SCC 8 in which the observations made in paragraph 7 includes the following: "...(vi) The order of compulsory retirement shall not be passed as a shortcut to avoid departmental enquiry when such course is more desirable...(viii) Compulsory retirement shall not be imposed as a punitive measure."
24. Perusal of the minutes of the Review Committee reveals that there are no adverse remarks in the APAR of the applicant which is 'very good' or 'outstanding' for the period concerned but they have observed that the grading has been done on objective terms. Major allegations against the applicant include his involvement in consultancy work and his not joining at the transferred place of posting and not replying to the show cause notices issued to him. It has also been observed that the act of the applicant can be construed as misconduct under CCS Conduct rules. Thus, compulsory retirement of the applicant in this case cannot be considered to have been taken solely in the public interest but as a punitive measure for misconduct on part of the applicant. There are also allegations regarding the applicant's unlawful appearance in the LDC examination but there is silence regarding the action taken on the clandestine involvement of the officials implicit in illegally permitting the applicant to appear for the same. Compulsory retirement is a major punishment under CCS (CCA) Rules, 1965 which can be imposed after regular inquiry in case of misconduct. There are certain allegations against the applicant for which he has to be given the opportunity to defend himself in a regular inquiry proceeding and if he refuses to cooperate, the authority has the power to proceed ex parte also. Thus, this is a case where regular inquiry has been avoided and compulsory retirement has been awarded in the name of public interest invoking rules 56(j) of the Fundamental Rules and 48 of the CCS (Pension) Rules, 1972.
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25. Accordingly, the impugned order dated 30.12.2020 alongwith the corrigendum dated 12.01.2021 in O.A./280/2023 is hereby quashed. The applicant has already attained the age of superannuation on 31.05.2024. The applicant should be treated as in service till his actual date of retirement on 31.05.2024 for all purposes.
26. Thus, O.A./280/2023 stands allowed. All associated M.A.s also stand disposed of. No costs.
27. All the retiral dues of the applicant as well as the arrears and other benefits that accrue to him as a consequence of the orders passed in O.A./280/2023 as well as O.A./377/2020 shall be granted to the applicant within a period of three months from the date of receipt of a certified copy of this order.
28. Copy of this judgement and order should also be placed in the file of O.A./280/2023 along with the file of O.A./377/2020.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
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