Central Administrative Tribunal - Jabalpur
Dr Mayank Jain vs M/O Home Affairs on 14 January, 2021
1 OA No.200/000933/2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00933/2018
Jabalpur, this Thursday, the 14th day of January, 2021
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
HON'BLE MS. NAINI JAYASEELAN, ADMINISTRATIVE MEMBER
Dr. Mayank Jain, S/o Dr. Sheel Chandra Jain, aged about 51 years, R/o H.
No.294, B-Sector, Shahpura, Bhopal (M.P.) 462001.
-Applicant
(Applicant in person through Video Conferencing)
Versus
1. Union of India through it's Secretary, Ministry of Home Affairs, North
Block, New Delhi - 110001.
2. State of Madhya Pradesh through it's Additional Chief Secretary,
Department of Home, Mantralaya, Vallabh Bhawan, Bhopal (M.P.) - 462001.
3. Director General of Police, Police Headquarters, Madhya Pradesh Police
Headquarters, Jehangirabad, Bhopal (M.P) - 462008.
-Respondents
(By Advocate - Shri Surendra Pratap Singh for respondent No.1 and
Shri Divesh Jain for respondents Nos.2 & 3 through Video Conferencing)
(Date of reserving order : 03.12.2020)
ORDER
By Ramesh Singh Thakur, JM.
The applicant is aggrieved by letter dated 13.08.2015 (Annexure A-
1) of the Additional Secretary, Ministry of Home Affairs, Government of Page 1 of 28 2 OA No.200/000933/2018 India to Chief Secretary, Government of Madhya Pradesh wherein the Government of India has decided to retire the applicant pre-maturely from service, in public interest, under Sub Rule 3 of Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as '1958 Rules').
2. The applicant has sought for the following reliefs:
"8. RELIEF SOUGHT:
(i) To call for the entire material record pertaining to the instant controversy from the respondents for its kind perusal.
(ii) This Hon'ble Tribunal may kindly be pleased to direct the respondents to produce entire record of the proceedings of Review Committee meetings held in 2017 and the recommendation of the State Government dated 1.3.2018 sent to the Secretary Ministry of Home Affairs, in the interest of justice.
(iii) To quash and set aside the impugned order dated 13.08.2018 (Annexure A/1) and further command and direct the Respondents not to adversely affect applicant in any manner in pursuance to the impugned order and restore applicant to his original position in the cadre without any brake with all consequential benefits like pay, perks, status and arrears thereof and interest therein;
(iv) Grant any other relief/s, which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case to the applicant.
(v) Award cost of the instant lis to the applicant."
Page 2 of 28 3 OA No.200/000933/2018
3. Briefly the facts of the case are that the applicant is an IPS officer of Madhya Pradesh cadre of 1995 batch. The applicant was promoted to Selection Grade vide order dated 30.06.2009 (Annexure A/23) to the post of DIG on 25.12.2010 (Annexure A/44) and thereafter as IG on 07.02.2013 (Annexure A/45).
3.1 The applicant has filed a copy of the ACR dossiers from 1996 to 2013-2014 (collectively filed as Annexure A-2 to Annexure A-22), which shows that he has been graded as 'Very Good' and 'Outstanding' in almost all his ACRs. Only one of his ACR for the year 2009-10 was downgraded, which was upgraded by the Reviewing Authority as 'Very Good'. A raid was conducted on application by the office of Special Police Establishment, Lokayukt Bhopal with regard to the compliant of disproportionate assets and case No.188/2014 was registered under Rule 13(1)E, 13(2) of Prevention of Corruption Act, 1988. Thereafter, the applicant was placed under suspension vide order dated 31.05.2014 (Annexure A-35) in terms of Rule 3(3) of All India Services (Discipline & Appeal) Rules, 1969 (hereinafter referred to as '1969 Rules'). 3.2 The applicant was served with a charge-sheet on 24.09.2014 Page 3 of 28 4 OA No.200/000933/2018 (Annexure A-36) and the disciplinary proceedings were initiated in terms of Rule 8 of the 1969 Rules. A Review Committee was held on 30.10.2017 for considering the cases of retirement under Rule 16(3) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, who have completed 15/25 years of service or 50 years of age. The case of the applicant was recommended by the Government of Madhya Pradesh for premature retirement under the said rules and the same was sent to respondent No.1.
3.3 The applicant submitted a representation on 12.03.2018 (Annexure A-37) to respondent No.1. He preferred another representation on 16.03.2018 (Annexure A-38). When the applicant came to know that the recommendations made by respondent No.2 have been sent to respondent No.1 for his compulsory retirement, he approached this Tribunal by filing Original Application No.312/2018 seeking direction not to take any decision on the recommendation of the State Government. Meanwhile, an order of premature retirement was passed under Rule 16(3) of the Rules, 1958 vide order dated 13.08.2018 (Annexure A/1) of Union of India, which has never been served to the applicant.
Page 4 of 28 5 OA No.200/000933/2018
4. The main ground for challenging the Original Application is that while recommending the case of applicant for compulsory retirement, the respondents have not considered the fact that the Lokayukt investigation has been ended in respect of the compliant and closure report has already been filed by the Lokayukt. Further, there was no adverse remark in the entire service dossiers of the applicant, except one remark noted by the IG-SAF in ACR of the applicant for the year 2009-10, which has been turned down by the Reviewing Authority and also by the Accepting Authority and has been upgraded to 'Very Good'. The applicant has been promoted to the post of DIG in the year 2010 and IG in the year 2013 and, therefore, the adverse entry made for the year 2009-10 (upgraded later) cannot be made basis for compulsory retirement.
5. On 05.10.2018, while issuing notice to the respondents, this Tribunal had granted interim relief to the applicant directing respondents Nos.2 and 3 not to take any consequential steps pursuant to order dated 13.08.2018 (Annexure A-1).
6. Respondents Nos.2 & 3 have filed their reply, wherein it has been submitted that the order dated 13.08.2018 (Annexure A-1) is an internal Page 5 of 28 6 OA No.200/000933/2018 communication between them and the Government of India, Ministry of Home Affairs and is not a final order. It has also been submitted that looking to the entirety of the service record and the finding recorded by the Committee, which was constituted under the provision of 1958 Rules, the retention of the applicant in service was not found to be in public interest and, therefore, the Committee has recommended for compulsory retirement of the applicant.
7. Reply has also been filed by respondent No.1, wherein it has been stated that the Department of Personnel & Training vide letter dated 28.06.2012 had issued guideline for initiating review of records under Rule 16(3) of 1958 Rules. As per the said rule, the Government of India may in consultation with the State Government, require a member of the service to retire from service in public interest after giving such member at least three months previous notice in writing or three months' pay and allowance in lieu of such notice. The respondent No.2 vide letter dated 03.03.2018 had forwarded minutes of the Review Committee to review Service Records of 139 IPS officers of Madhya Pradesh Cadre. The Review Committee recommended the premature retirement of the applicant from service under Rule 16(3) of the 1958 Rules. Accordingly, Page 6 of 28 7 OA No.200/000933/2018 the respondent No.1 has approved for premature retirement of the applicant under the said rule.
7.1 It has been further submitted that for the year 2007-08, the applicant was awarded overall grading as 04 with comment that, "He needs to acquire better insight into man-management, keeping up the moral of the force, team work and Co-ordination. With these skills he could prove to be an asset to the force." However, due to superannuation of the then DGP MP, i.e. Reviewing Authority of the applicant, his comments could not be recorded and there is no comments of the Accepting Authority also. The APAR of the period 2007-2008 is only written by Reporting Authority.
7.2 The applicant has submitted his representation directly to the respondent No.1, which is against the instructions issued by the Government of India (Ministry of Home Affairs) vide letter dated 08.05.1959.
8. The applicant has also filed rejoinder to the reply filed by respondents Nos.2 & 3, wherein he has filed copy of enquiry report dated 01.11.2018 (Annexure RJ-1). It has been submitted that the chargesheet Page 7 of 28 8 OA No.200/000933/2018 dated 24.09.2014 has been issued by the Department on the same allegations for which Lokayukta has already filed their closure report. As far as departmental enquiry is concerned, it has already been completed by the enquiry officer who has submitted his report finding all the four charges as not proved.
9. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
10. The applicant contended that he has been posted and served in various capacities in the Police Department in State of Madhya Pradesh. He has also served as Superintendent of Police, Badwani, Jhabua, Sidhi, Dewas and Ratlam and DIG, Ujjain. He has been promoted to Selection Grade on 30.06.2009 and to the post of DIG on 25.12.2010 and thereafter as IG on 07.02.2013. All the Annual Reports from 2009-10 to 2013-14 are either outstanding or very good with no aspersions on integrity. The Reporting Officer, IG, SAF had given numerical grading of 1 for the year 2009-10 period from 11.07.2009 to 12.02.2010 (Annexure A-16) to the applicant while the ACR of the same year from 01.04.2009 to 02.07.2009 (Annexure A-15) was excellent. The Reviewing Authority, ADG, SAF Page 8 of 28 9 OA No.200/000933/2018 took a very strong objection on the comments of IG, SAF and set them aside by mentioning the note in the column. He increased the numerical grading and upgraded to 6. The DGP, MP, as Accepting Authority, also did not agree with the comments of IG, SAF and further increased the numerical grading to 7, i.e. 'Very Good'. The applicant was promoted twice thereafter as DIG and IG.
10.1 The applicant further submitted that a Lokayukt case was registered against the applicant with Crime Number 188/2014. After a detailed investigation, closure report was submitted on 24.02.2018 (Annexure A-
25). The recommendations of the Review Committee were sent to the respondent No.1 on 01.03.2018 and the order for premature retirement was passed on 13.08.2018. The Government of Madhya Pradesh suppressed the information about closure of Lokayukt case and recommended the case of applicant for premature retirement under Rule 16(3) of the 1958 Rules.
10.2 It has also been argued that a departmental chargesheet was also served to the applicant on 24.09.2014 (Annexure A-36) and after a detailed enquiry, the Inquiry Officer submitted his inquiry report on Page 9 of 28 10 OA No.200/000933/2018 01.11.2018 (Annexure RJ-1), wherein all the charges were not proved. The findings recorded by the Inquiry Officer were endorsed by DGP and was forwarded to the respondent No.2 on 01.01.2019 (page 139 of rejoinder). Thus, pendency of departmental enquiry cannot be a ground for compulsorily retiring the applicant, which ultimately was in favour of the applicant. The order of compulsory retirement has been passed on extraneous reasons and, therefore, the same deserves to be set aside, it is contended.
10.3 In support of his contentions, the applicant has placed reliance on the following judgment/order:
"(i) State of Gujarat vs. Umedbhai M. Patel, (2001) 3 SCC
314.
(ii) Rajesh Gupta vs. State of Jammu and Kashmir and others, (2013) 3 SCC 514.
(iii) High Court of Judicature of Patna, through Registrar General vs. Shyam Deo Singh and others, (2014) 4 SCC
773.
(iv) Baikuntha Nath Das and another vs. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299.
(v) Order of this Tribunal in Original Application Page 10 of 28 11 OA No.200/000933/2018 No.200/985/2016, decided on 10.04.2019 (Raj Kumar Bhatia vs. Union of India & Ors.).
11. On the other hand, counsels for the respondents argued that there were sufficient material available before the Review Committee while recommending applicant's case for compulsory retirement. Therefore, the State of Madhya Pradesh has recommended premature retirement of the applicant under Rule 16(3) of the 1958 Rules, which has been agreed to by the Government of India, Ministry of Home Affairs. So far as applicant's contention regarding closure report submitted by the Lokayukt on 24.02.2018 (Annexure A-25) is concerned, learned counsel for respondents Nos.2 and 3 has filed additional reply on 23.11.2020, wherein he has placed on record the copy of order dated 13.10.2020 (Annexure R-2/2) passed by the Special Judge, whereby the closure report submitted by the Lokayukt has been rejected with the reasons that there is prima facie evidence against the applicant for offence punishable under the provisions of Prevention of Corruption Act, 1988. 11.1 Learned counsel for respondent No.1 argued that Annexure A-1 is an internal communication between the Union of India and State of Madhya Pradesh, whereby the recommendations of State of Madhya Page 11 of 28 12 OA No.200/000933/2018 Pradesh for premature retirement of the applicant were agreed to by the Union of India. The applicant has not challenged the order regarding his premature retirement and, therefore, this Original Application is not maintainable. It has also been argued that the findings of the Review Committee were on the basis of overall assessment of service record of the applicant and the applicant has been founded as an officer of doubtful integrity. Thus, in the public interest, the applicant has been prematurely retired from service. Learned counsel for respondent No.1 has also placed reliance on a judgment of Hon'ble Apex Court in the case of R.C. Chandel vs. High Court of M.P. (2012) 8 SCC 58 to say that order of compulsory retirement is not arbitrary as the integrity of the applicant, who is an officer of the highest rank, was found to be doubtful. 11.2 Learned counsel for respondents Nos.2 & 3 has also placed reliance on a judgment of Hon'ble Apex Court in the matter of Jugal Chandra Saikia vs. State of Assam and another, (2003) 4 SCC 59 and Punjab State Power Corporation Limited and others vs. Hari Kishan Verma, (2015) 13 SCC 156.
12. We have considered the rival contention of the parties. Page 12 of 28 13 OA No.200/000933/2018
13. The Government of India has brought out detailed guidelines on 28.06.2012 (Annexure A-51) for intensive review of records as per Rule 16(3) of the 1958 Rules. These guidelines have relied upon the judgment of Hon'ble Apex Court in the case of Umedbhai M. Patel (supra). The extracts of relevant Annexure appended with these guidelines are reproduced below :-
"xxx xxx xxx
III. THE MATTERS TO BE KEPT IN MIND WHERE
DISCIPLINARY INQUIRIES ARE ON GOING
3.1 In a case where on an alleged misconduct a departmental inquiry has been conducted and the stage has been reached for a decision by the competent authority on the punishment to be imposed, it would not be appropriate to issue, instead, an order of premature retirement. However, there may be cases where there is independent material to justify the premature retirement of an officer either on the grounds of inefficiency or lack of integrity; the Review Committees may in such cases formulate its recommendations. Further where no departmental inquiry has been initiated and the specific allegation of misconduct involving lack of integrity is only one fact on the service record of the officer, which has to be considered in toto, an order under Rule 16(3) can quite appropriately be passed if the same is otherwise justified.......
xxx xxx xxx IV. MATTERS TO BE KEPT IN MIND WHILE EVALUATING THE EFFICIENCY AND EFFECTIVENESS OF AN OFFICER xxx xxx xxx 4.3 While the entire service record of an officer should be considered at the time of review, greater emphasis will be placed on his performance during the 5 years preceding the review. If an officer had been promoted to a higher post during the said period of 5 years, the Page 13 of 28 14 OA No.200/000933/2018 service in the higher post shall receive greater emphasis. If, during the aforesaid period of 5 years, there is evidence of deterioration in efficiency and unsatisfactory performance, the Review Committee shall examine the entire service record and arrive at a total picture about the suitability or otherwise of the officer for further retention in Service." Perusal of the above guidelines indicate that while recommending the case of premature retirement under Rule 16(3) of the 1958 Rules, the Review Committee must keep in mind the efficiency and integrity of an officer. Further, entire service record is also to be considered at the time of review. However, emphasis has been drawn upon the performance of an officer during the 5 years preceding the review.
14. From the record, it can be seen that the applicant has undergone several rounds of scrutiny upto the year 2013-14. He was promoted to Selection Grade on 30.06.2009 (Annexure A-23), DIG on 25.12.2012 (Annexure A-44) and thereafter to the post of IG on 07.02.2013 (Annexure A-45). Prior to granting these promotions, PHQ had issued integrity certificate to the applicant for promotions, which have been filed at page Nos.324, 471 & 472 with the O.A. Further, the appraisal in the ACR/APARs for the last five years from 2009-10 to 2013-14 (Annexure A-15 to Annexure A-22) is either 'Very Good' or 'Outstanding' and there is no doubt about his integrity. So far as the remarks and the grading Page 14 of 28 15 OA No.200/000933/2018 given by the Reporting Officer, IG SAF for the period 11.07.2009 to 12.02.2010 (Annexure A-16), the same have been upgraded by the Reviewing Authority, ADG, SAF by setting aside the remarks given by the IG, SAF.
15. Respondents Nos.2 & 3 have filed the copy of the recommendations made by the Review Committee (Annexure R-2/1) while considering the cases of retirement under 1958 Rules. The relevant paragraph of minutes of the Committee reads as under:
"7. xxx xxx xxx bl izko/kku ds vkyksd esa lfefr us ;g fu.kZ; fy;k fd ,sls vf/kdkjh] ftuds fo:) xaHkhj vkjksiksa ij lafLFkr foHkkxh; tWakp vFkok Hkz'Vkpkj ds ekeys yafcr gSa] mUgsa vf[ky Hkkjrh; lsok ¼Mh-lh-vkj-ch-½ fu;e] 1958 ds fu;e 16¼3½ ds izko/kkuksa ds varxZr vfuok;Z :i ls lsokfuo`Rr fd;k tkuk mi;qDr ugha gS D;ksafd ,slk fd, tkus ij bu vf/kdkfj;ksa dks bl fu;e ds izko/kkuksa ds rgr~ vuko";d :Ik ls ykHk ig qapus vkSj muds fo:) lafLFkr ekeyksa esa ml n.M ls cp tkus ds vk"kadk jgsxh] tks mu ij Hkz'Vkpkj fuokj.k vf/kfu;e] 1988] Hkkjrh; n.M lafgrk 1860] n.M izfdz;k lafgrk 1973] vf[ky Hkkjrh; lsok ¼vuq"kklu ,oa vihy½ fu;e] 1969 vkSj vf[ky Hkkjrh; lsok ¼vkpj.k½ fu;e] 1968 vkfn ds izko/kkuksa ds varxZr vf/kjksfir fd;k tk ldrk gS A mDr izko/kku ds vkyksd esa lfefr us ;g Hkh fu.kZ; fy;k fd ,sls vf/kdkjh] ftuds ftuds fo:) xaHkhj vkjksiksa ij lafLFkr foHkkxh; tWakp vFkok Hkz'Vkpkj ds ekeys yafcr gSa xksiuh; izfrosnu esa lafu'Bk lafnx/k gS] mUgsa vf[ky Hkkjrh; lsok ¼Mh-lh-vkj-ch-½ fu;e] 1958 ds fu;e 16¼3½ ds izkok/kkuksa ds varxZr vfuok;Z :i ls lsokfuo`Rr fd;k tk,A 8- lfefr us fjdkMZ dk ijh{k.k dj ;g ik;k fd 15 o'kZ dh vgZdkjh lsok iw.kZ djus okys Hkkjrh; iqfyl lsok ds ,d vf/kdkjh MkW- e;ad tSu ¼e-iz- vkj- vkj- 1995½ rRdkyhu iqfyl egkfujh{kd] iqfyl dE;qfuVh fjys"kuf"ki] iqfyl Page 15 of 28 16 OA No.200/000933/2018 eq[;ky;] Hkksiky ds fo:) fo"ks'k iqfyl LFkkiuk] yksdk;qDr dk;kZy;] Hkksiky }kjk vuqikrghu laifRr vftZr djus dh f'kdk;r ds ekeys esa] Nkik ekj dj] muds fo:) vijk/k dzeakd 188@2014] /kkjk&13¼1½ bZ] 13¼2½ Hkz'Vkpkj fuokj.k vf/kfu;e&1988 ds varxZr iathc) fd, tkus ds dkj.k jkT; "kklu }kjk vf[ky Hkkjrh; lsok ¼vuq"kklu ,oa vihy½ fu;e] 1969 ds fu;e&3 ds izko/kkuksa ds varxZr bUgsa foHkkxh; lela[;d vkns"k fnuakd 31-05-2014 }kjk fuyafcr fd;k x;k Fkk A MkW0 tSu] Hkkiqls ¼fuyafcr½ ds fo:) yksdk;qDr laxBu esa vijk/k dzeakd 188@2014] /kkjk-13¼1½ bZ] 13¼2½ Hkz'Vkpkj fuokj.k vf/kfu;e&1988 ds varxZr iathc) gksdj foospuk esa gS A xxx xxx xxx lfefr us ;g ik;k fd MkW- e;ad tSu] Hkkiqls ds o'kkZZUr 2010 ¼11-07-09 ls 12-02-2010½ esa izLrqrdrkZ vf/kdkjh }kjk xksiuh; izfrosnu ds fcUnq dzeakd&8 ,oa fcUnq dzeakd&9 esa fuEukuqlkj ys[k fd;k gS %& fcUnq dzekad&8 Dr. Mayank Jain is an officer of doubtful integrity. He is thoroughly corrupt officer who can go to any level to earn illegal money.
fcUnq dzekad&9 Dr. Mayank Jain is highly indiscipline, irresponsible officer who can stoop to any low level to earn money. He is thoroughly corrupt officer who should not be given any responsible, financial job. He lacks knowledge of rules, regulation. He is famous for disobeying his senior officer and harassing his subordinates for favours. He does not have any control over his team. During his tenure the Battalion was working as fragmented force and everybody was frightened. He can not achieve any target. He is mischievous. He conspires in publishing news against officer. He was given 9 letter of displeasures by me and DIG SAF also issued displeasure letter but there is no change in his attitude. Overall he is a very poor quality officer who needs thorough training to improve himself. His attitude towards staff of weaker section was bad. It is impossible to improve this officer. He is a burden on the force. He should never be given any responsible of financial job."
MkW0 e;ad tSu ds lexz fjdkMZ dh leh{kk ds mijkar lfefr us ;g ik;k fd izFke n`'V;k MkW0 e;ad tSu dk ekeyk vf[ky Hkkjrh; lsok ¼Mh-lh- Page 16 of 28 17 OA No.200/000933/2018
vkj-ch-½ fu;e] 1958 ds fu;e 16¼3½ dh ifjf/k esa vkrk gS A vr% lfefr us ;g fu.kZ; fy;k fd MkW- e;ad tSu] Hkkiqls ¼e-iz- 1995½ dks bl fu;e ds rgr yksdfgr esa lsokfuo`Rr fd, tkus laca/kh jkT; "kklu dk izLrko Hkkjr ljdkj] x`g ea=ky;] ubZ fnYyh dks izsf'kr fd;s tkus dh dk;Zokgh dh tk, A"
16. On perusal of the recommendations made by the Review Committee, it is seen that while recommending the name of the applicant for premature retirement, the Committee has considered the pending Lokayukt case against the applicant. Further, in para 8, the Committee has quoted the pen picture given by the Reporting Officer, i.e. IG SAF for the period 11.07.2009 to 12.02.2010. It is pertinent to mention that the recommendations of the Review Committee were sent to the respondent No.1 on 01.03.2018, whereas the closure report was filed by the Lokayukt on 24.02.2018 (Annexure A-25). This fact was not brought to the notice of respondent No.1 by the Government of Madhya Pradesh while recommending applicant's case for premature retirement and, accordingly, the order for premature retirement was passed by the respondent No.1 on 13.08.2018 (Annexure A-1). Moreover, the applicant has already been served with a chargesheet on 24.09.2014 (Annexure A-
36) for the same incidence and after a detailed enquiry, the Inquiry Officer has submitted his inquiry report on 01.11.2018 (Annexure RJ-1) Page 17 of 28 18 OA No.200/000933/2018 finding all the charges not proved. Thus, instead of completing the pending departmental enquiry, the respondents have chosen to retire the applicant prematurely as a short cut to avoid completion of pending departmental enquiry.
17. So far as the pen picture given by the Reporting Officer, IG SAF in the ACR of the applicant for the period 11.07.2009 to 12.02.2010, which have been relied upon by the Screening Committee while recommending the case of applicant for premature retirement, it is quite surprising as to why those remarks have been taken into account when they have been set aside by the Reviewing Authority and have also been agreed to by the Accepting Authority. The remarks recorded by the Reporting Authority/Reviewing authority are not final unless they are accepted by the Accepting Authority. Though the applicant was graded 1 by the Reporting Officer in his Performance Appraisal Report for the period from 11.07.2009 to 12.02.2010, however, the Reviewing Authority did not agree to it and has upgraded the overall grading to 6, which has been further upgraded by the Accepting Authority to 7, i.e. 'Very Good'. Thus, the overall grading of the applicant in his PAR from 11.07.2009 to 12.02.2010 are 'Very Good', which does not draw any adverse inference Page 18 of 28 19 OA No.200/000933/2018 on the applicant about his integrity. Moreover, the applicant was given two promotions as DIG on 25.12.2010 (Annexure A-44) and as IGP on 07.02.2013 (Annexure A-45) and the promotions were given after due considerations by DPC, which took into account PAR, overall assessment of work and integrity. These promotions were given in last five years preceding the review and the record was thoroughly scrutinized in the DPC proceedings.
18. It was contended by learned counsel for respondent No.1 that Annexure A-1 dated 13.08.2018 is not an impugned order and it is a mere proposal sent by the State Government. While it is true that the State Government has not issued the order in furtherance to the communication dated 13.08.2018 (Annexure A-1), however, this Court has already taken cognizance in the matter and vide order dated 05.10.2018, respondents Nos.2 & 3 have been directed not to take any consequential steps pursuant to order dated 13.08.2018 (Annexure A-1). Moreover, it has not been disputed by either of the side that the decision to retire the applicant prematurely has already been taken by the respondents.
19. In R.C. Chandel (supra), relied upon by learned counsel for Page 19 of 28 20 OA No.200/000933/2018 respondent No.1, the appellant was working on the post of District and Sessions Judge and he was compulsorily retired from the service in the public interest by the Government of Madhya Pradesh on the request of the Madhya Pradesh High Court. There were adverse remarks in his ACRs of 1993 and 1994 for which the appellant had approached one Member of Parliament for his expunction of remarks for 1993 and 1994. In para 40 of the judgment, the Hon'ble Apex Court has observed as under:
"40. The conduct of the appellant in involving an M.P. and the Ministry of Law, Justice and Company Affairs, in a matter of the High Court concerning and administrative review petition filed by him for expunging adverse remarks in ACRs of 1993 and 1994 is most reprehensible and highly unbecoming of a judicial officer. His conduct has tarnished the image of the judiciary and he disentitled himself from continuation in judicial service on that count alone. A Judge is expected not to be influenced by any external pressure and he is also supposed not to exert any influence on others in any administrative or judicial matter. Secondly and still worst, the applicant had an audacity to set up a plea in the rejoinder that he never made any representation to Shri R.K. Malaviya, M.P. for any purpose whatsoever. But for the appellant's approaching Shri R.K. Malaviya and his request for help, Shri R.K. Malaviya would have never written the letter quoted above to the then Minister of State for Law, Justice and Company Affairs. On this ground also his writ petition was liable to be dismissed."
19.1 In the instant case, though the Performance Appraisal Report of the Page 20 of 28 21 OA No.200/000933/2018 applicant for the period from 11.07.2009 to 12.02.2010 was downgraded by the Reporting Officer, however, it was upgraded by the Reviewing Authority and the Accepting Authority has further upgraded the overall grading to 'Very Good'. The applicant has been promoted twice after 2009. Therefore, the facts and circumstances of the present case is entirely different to that of R.C. Chandel (supra).
20. Learned counsel for respondents Nos.2 & 3, while placing reliance on a judgment of Hon'ble Apex Court in the case of Jugal Chandra Saikia (supra), has argued that the Review Committee has assessed the overall service record of the applicant as also Lokayukt case pending against the applicant. Hence, considering the doubtful integrity of the applicant, it has been decided to retire the applicant prematurely on completion of 15 years of service. Learned counsel has further placed reliance on a decision of Hon'ble Apex Court in the case of Hari Kishan Verma (supra). He argued that though the applicant has been promoted after the adverse entries made in his PAR from 11.07.2009 to 12.02.2010, however, it has no application as the case of the applicant has been assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The assessment is based on Page 21 of 28 22 OA No.200/000933/2018 entire service record of the applicant and the committee has found the applicant unsuitable for his further continuance in service. However, we find that the order of punishment is based on the charges of misconduct for which the applicant has been issued chargesheet separately. Thus, there is stigma attached to the order of compulsory retirement, which ought not to have been passed before concluding the disciplinary proceedings.
21. In the case of Rajesh Gupta (supra), the Hon'ble Apex Court, while summarising the principles laid down in Baikuntha Nath Das (supra), Nand Kumar Verma vs. State of Jharkhand & others, (2012) 3 SCC 580 and Umedbhai M. Patel (supra), have held as under:
"20. The principles on which a government servant can be ordered to be compulsorily retired were authoritatively laid down by this Court in Baikuntha Nath Das (supra). In para 34, the principles have been summed up as follows: (SCC pp. 315-16) "34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government.Page 22 of 28 23 OA No.200/000933/2018
(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. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above."
21. The aforesaid principles have been re-examined and reiterated by this Court in Nand Kumar Verma (supra), (SCC pp. 587-88, para 29). The principles have been restated as follows:
(SCC pp. 590-91, paras 34 & 36) "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 Page 23 of 28 24 OA No.200/000933/2018 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. We say so for the reason that the appellant has produced the copies of the ACRs which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.
* * *
36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service."
22. In State of Gujarat v. Umedbhai M. Patel (supra) the same principles were reiterated in the following words: (SCC p. 320, para 11) "11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:
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(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
22. From the above authoritative law, it is clear that an order of compulsory retirement is not a punishment. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency in the service and also to dispense with the services of those whose integrity Page 25 of 28 26 OA No.200/000933/2018 is doubtful. The order of compulsory retirement is distinguished from the order of dismissal and removal, as it does not inflict any punishment on the Government servant. However, in case it is found that the order is stigmatic, then the same would be treated as an order of punishment, which cannot be passed without complying with the provisions of Article 311(2) and the rules of natural justice.
23. In the present case, it is clear from the record that the order of compulsory retirement is based on the allegations of misconduct mentioned in the charge sheet. The order of retirement is also based on the specific allegations or charges for which the applicant was issued the chargesheet. It is on the basis of those allegations and charges, the authority formed an opinion that the applicant lacked in integrity. The order of compulsory retirement is not supported on any adverse confidential reports or performance of the applicant during his service tenure. It is thus clear that the grounds of the order of compulsory retirement are based on the charges of misconduct for which the applicant was issued the chargesheet and was facing a departmental inquiry. The appropriate authority instead of completing the inquiry adopted a short cut method and dispensed with his services on the Page 26 of 28 27 OA No.200/000933/2018 alleged ground of public interest, and on forming an opinion that the applicant's integrity is doubtful.
24. We also note the fact that the applicant was aged about 51 years at the time of filing this Original Application in the year 2018. It is difficult for us to understand as to why completion of departmental inquiry was not possible when ample time was there for applicant's retirement. The above can hardly be a ground to bye-pass a departmental inquiry. There were specific allegations against the applicant. He faced the departmental inquiry in which the inquiry report was submitted on 01.11.2018 in applicant's favour. Therefore, we conclude that the impugned order of compulsory retirement is clearly punitive and has been passed by way of punishment without following the constitutional provisions contained in Article 311 of the Constitution of India. The power of compulsory retirement cannot be used for an oblique purpose to punish a Government servant for specific misconduct. When the Article 311 of the constitution is already attracted, the Government cannot retire an officer in public interest as principle of natural justice has to be followed.
25. In the result, the Original Application is allowed. Page 27 of 28 28 OA No.200/000933/2018
Impugned communication dated 13.08.2018 (Annexure A/1) is quashed and set aside. The applicant shall be entitled for all consequential benefits. No order as to costs.
(Naini Jayaseelan) (Ramesh Singh Thakur)
Administrative Member Judicial Member
am
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