Central Administrative Tribunal - Delhi
Ajay Kumar Bassi vs Cbi on 10 August, 2023
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Item No.35/C-1 OA No. 3107/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 3107/2022
Reserved on : 24.07.2023
Pronounced on : 10.08.2023
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Dr. Anand S. Khati, Member (A)
Ajay Kumar Bassi
Aged 59 years 07 months (Group A)
S/o Shri Tarsem Lal Bassi
R/o C-11, 2nd Floor
New Multan Nagar
New Delhi-110056.
.. Applicant
(Applicant in person)
Versus
1. Union of India
Through its Secretary
D/o Personnel & Training
Ministry of Personnel, P.G. & Pensions
North Block, New Delhi-110001
2. Central Bureau of Investigation
Through its Director
CBI Headquarters
CGO Complex, Lodhi Road
New Delhi-110003.
.. Respondents
(By Advocate : Mr. Hanu Bhaskar)
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Item No.35/C-1 OA No. 3107/2022
ORDER
Dr. Anand S. Khati, Member(A) The present O.A. has been filed by the applicant challenging the order dated 17.06.2022 passed by the respondents, whereby he has been retired prematurely under FR 56(j) in public interest. By way of this O.A., the applicant is seeking the following relief(s):
"A. To call for records, B. set aside the Office Order No.1279/2022 dated 17.06.2022 [Annexure-A/1(i)] vide which the applicant has been prematurely retired under FR 56
(j) with effect from 17.06.2022 (afternoon) on completion of 50 years of age.
C. Award costs of the proceedings in favour of the applicant.
D. Any other order/direction/relief which this Hon‟ble Tribunal deems fit and proper in the facts of the case, may also be granted in favour of the applicant."
2. The brief facts of the case are that the applicant initially joined the Intelligence Bureau (IB) as Assistant Central Intelligence Officer-II (G) on 26.11.1986 and therefrom, he went on deputation to Central Bureau of Investigation (CBI) as Inspector of Police on 01.10.1999 and permanently absorbed in CBI on 13.07.2006. Subsequently, he was promoted to the post of Deputy Superintendent of Police (DSP) in December, 2013 and while working on that post, vide impugned Order No. 1279/2022 dated 17.06.2022, he was prematurely retired from service under FR 56(j). Challenging the same, the applicant filed O.A. No. 2544/2022. On a submission made by the learned counsel for the respondents 3 Item No.35/C-1 OA No. 3107/2022 that the representation dated 21.07.2022 preferred by the applicant against the said impugned order is pending for decision with the Competent Authority, the O.A. was disposed of by this Tribunal vide order dated 20.09.2022 with the following directions:
"3. In above circumstances, we dispose of this OA by directing the respondents to dispose of the applicant‟s representation dated 21.07.2022, as early as possible and in any case, within a period of three weeks from the date of receipt of this order. It is made clear that no further time would be granted. Needless to mention that this order shall not be construed as expression of any opinion on merits of the matter and the said representation of the applicant under FR 56 (J) shall be disposed of on its own merits and in accordance with law by passing a speaking order. No costs." In compliance of the ibid order, the respondents vide order dated 12.10.2022 informed the applicant that the Representation Committee in its meeting held on 30.09.2022 opined that they found no reasons to interfere in the decision of the Appropriate Authority to prematurely retire him and the observations of the Representation Committee were accepted by the Competent Authority which, according to the applicant, is merely in the form of intimation and by no means can be said to a speaking order, as directed by this Tribunal.
3. It is also averred by the applicant that while he was posted at CBI, before completion of 30 years‟ service on 25.11.2016, a periodical review was conducted at CBI Academy, Ghaziabad by a three-member Committee under 4 Item No.35/C-1 OA No. 3107/2022 the provisions of FR 56(j) or Rule 48 of the CCS (Pension) Rules, 1972 in terms of DoP&T O.Ms. dated 21.03.2014 and 11.09.2015 and the said Committee in its Report dated 29.06.2016/01.07.2016 had given its findings to the effect that there is no adverse entry in the service book, all the ACRs/APARs are outstanding, he was never given any punishment, his integrity certified to be beyond doubt and no material was found to show suspicious property transactions, but no such document has been placed on record or produced in support of his averment. On the basis of the Committee‟s Report, the applicant was granted 3rd financial upgradation under MACP Scheme in Level-11 w.e.f. 26.11.2016 vide DoP&T order dated 05.06.2018.
4. Thereafter, vide order dated 24.10.2018 the applicant was transferred to Port Blair and was also relieved with immediate effect. Challenging the same, the applicant filed IA No. 157831/2018 in pending WP(C) No. 1309/2018 filed by Shri Alok Kumar Verma, Director, CBI. The applicant also intimated his inability to join at the new place of posting due to unavoidable domestic exigencies through e-mail dated 22.11.2018. Thereafter, in pursuance of order dated 08.01.2019 passed by the Hon‟ble Apex Court, setting aside the three orders dated 23.10.2018 passed by the DoP&T, the 5 Item No.35/C-1 OA No. 3107/2022 transfer order dated 24.10.2018 was withdrawn by the respondents vide order dated 09.01.2019. Consequently, the applicant resumed his duties in CBI AC-III Branch, New Delhi vide joining report dated 10.01.2019. However, again, the said withdrawal order was ordered to be non est vide order dated 11.01.2019 and before receiving any response from Port Blair, the joining report of the applicant was rejected by the then SP, AC-III Branch vide order dated 24.01.2019 on the ground that relieving order was not issued by Port Blair Branch. Later, the SP, CBI, Port Blair vide letter dated 30.01.2019 informed that the applicant had neither joined that Branch nor sent any communication and as such there is no question of issuing any relieving order.
5. Subsequent thereto, the applicant was issued a charge memo dated 11.12.2019 on the allegations that (i) he did not comply with the transfer order dated 24.10.2018 and remained unauthorisedly absent from duty and (ii) he filed an Interlocutory Application (IA) in WP(C) No. 1309 of 2018 before the Hon‟ble Supreme Court without obtaining any previous sanction of the Government or intimation to the Competent Authority. It is submitted by the applicant that though departmental inquiry under CCS (CCA) Rules, 1965 for not joining at Port Blair was pending against him, the 6 Item No.35/C-1 OA No. 3107/2022 respondents took a decision to prematurely retire him under FR 56(j) on 17.06.2022, without providing details of the grounds/reasons on the basis of which the decision has been taken.
6. The contention of the applicant is that he was granted 3rd financial upgradation in June, 2018 after consideration by a three-member Committee and he was also found eligible for consideration of next promotion in the DPC held on 25.05.2022. He has also claimed that in his entire service career, he worked on various sensitive and important positions and his excellent performance is evident from numerous rewards/awards, appreciation letters and commendation certificates. Further, he has always been graded outstanding/very good in his ACRs/APARs and no adverse comment has been made against his integrity in those ACRs/APARs. The applicant‟s plea is that FR 56(j) was framed to get rid of incompetent and redundant work force from the Government. However, the impugned order dated 17.06.2022 has been passed by the respondents only on the ground that he has not joined the place of posting. Hence, the action taken by the respondents to abruptly retire him prematurely under FR 56(j) within 17 days of his being found eligible for promotion and having less than 1o months‟ service from the 7 Item No.35/C-1 OA No. 3107/2022 date of his superannuation; which is considered as period for preparation of retirement and the Government servant is even permitted to take preparatory leave as per the extant instructions; is illegal, arbitrary, mala fide, condemnable and deserves to be set aside. It has also been urged by the applicant that he has not been paid salary since November, 2018 and has been granted only provisional pension and all the retiral benefits are withheld by the respondents in gross violation of the rules/guidelines.
7. In support of his contention, the applicant has relied upon the DoP&T O.M. dated 28.08.2020 regarding FR 56(j) and a catena of judgments passed by the Hon‟ble Apex Court and the Hon‟ble High Court, which are listed below:
(i) Allahabad Bank Officers Association and Anr. vs. Allahabad Bank and Others, 1996 SCC (4) 504;
(ii) Baldev Raj Chadha vs. Union of India & Others, (1980) 4 SCC 321;
(iii) Nand Kumar vs. State of Jharkhand & Others, (2012) 3 SCC 580;
(iv) Nawal Singh vs. State of U.P. & Another in C.A. No. 2898 of 2001 and batch, dated 23.09.2003;
(v) State of Uttar Pradesh vs. Chandra Mohan Nigam and Others, AIR 1977 SCC 2411;8
Item No.35/C-1 OA No. 3107/2022
(vi) Tara Singh and Others vs. State of Rajasthan and Other, (1975) 4 SCC 86;
(vii) Vijay Shankar Pandey vs. Union of India & Anr. in C.A. No. 9043 of 2014, dated 22.09.2014;
(viii) Man Singh vs. State of Haryana in C.A. No. 9043 of 2014 dated 01.05.2008;
(ix) State of Gujarat vs. Umedbhai M. Patel, 2001 (3) SCC 314; State Bank of India vs. Palak Modi, 2013 (3) SCC 607;
(x) High Court of Gujarat in Mohbatsinh Balusinh Zala vs. State of Gujarat in R/Spl. C.A. No.20436 of 2019 with C.A. No. 1 of 2022), dated 30.08.2022; and
(xi) High Court of Jammu & Kashmir and Ladakh at Jammu in State of J & K vs. Bhumesh Sharma in LPASW No.183/2017 CM No. 8530/2019, IA No. 1/2017 dated 19.10.2022.
8. During the course of the arguments, the applicant has placed on record a recent judgment passed by the Hon‟ble Supreme Court in Captain Pramod Kumar Bajaj vs. Union of India and Another in Civil Appeal No. 6161 of 2022, dated 03.03.2023, wherein the Apex Court has held as under:
"39. Dehors the aforesaid allegations of institutional bias and malice, having perused the material placed on record, we find merit in the other grounds taken by the appellant. It is noticed that though FR 56(j) contemplates that the respondents have an absolute right to retire a government servant in public interest and such an order could have been passed against the 9 Item No.35/C-1 OA No. 3107/2022 appellant any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of compulsory retirement was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as „Outstanding‟ and had assessed his integrity as „Beyond doubt‟. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short- circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public.
40. In view of the above discussion, it is deemed appropriate to reverse the impugned judgment dated 31st May, 2022 and quash and set aside the order dated 27th September, 2019 passed by the respondents, compulsorily retiring the appellant. Resultantly, the adverse consequences if any, flowing from the said order of compulsory retirement imposed on the appellant, are also set aside. The appeal is allowed and disposed of on the aforesaid terms while leaving the parties to bear their own costs."
He also relied upon a judgment passed by Jaipur Bench of this Tribunal in O.A. No. 103/2020 (Omprakash Meena vs. Union of India & Another), which was allowed vide order dated 16.02.2023 with the following directions: 10
Item No.35/C-1 OA No. 3107/2022 "20. We find it hard to put our mark of judicial approval on a decision, said to be based on the whole service record but which is actually found to be based only on one event for which there is already a disciplinary action pending. A decision, under such circumstances, to retire a person few months before the normal date of retirement, cannot be termed as being in the public interest. We appreciate the hard work put in by the learned counsel for the respondents to defend the decision, which have no doubt in our mind, is guided by their zeal to bring probity in public life. However, we do not want this good work to suffer and an impression to go around that any action taken by the authorities, however well intentioned, would get judicial approval even if it fails the test of reasonableness.
21. The OA is, for reasons mentioned above, allowed. Since the applicant is already past his date of normal retirement, he would be given all the benefits of pay etc.(adjusting what is already paid by way of pension and the notice pay) till the date of his normal retirement. He would be treated as retired only on the date of his normal retirement. There would be no orders as to costs."
9. The respondents have filed a counter affidavit opposing the O.A. The respondents took a preliminary objection that the applicant has not challenged the order dated 12.10.2022 passed by the respondents, conveying rejection of his representation by the Representation Committee and acceptance of the findings of the Review Committee. It is also submitted that the Competent Authority has passed the impugned order dated 17.06.2022 prematurely retiring the applicant from service under FR 56 (j) in public interest and while deciding the case of the applicant, the respondents have relied upon various OMs issued by the DoPT on the subject from time to time.
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Item No.35/C-1 OA No. 3107/2022
10. The main facts are not disputed by the respondents. It is submitted by the learned counsel for the respondents that the applicant was transferred from CBI, AC-III Branch, New Delhi to CBI, ACB, Port Blair vide order dated 24.10.2018 in public interest and also relieved on the same day. However, instead of joining at Port Blair, the applicant filed applications/petitions before the Hon‟ble Supreme Court, High Court of Delhi and Principal Bench of this Tribunal with a prayer to quash the transfer order/charge memorandum issued by the DoP&T. Despite the fact that there was no stay granted by any Court, the applicant did not report for duty and remained unauthorisedly absent and filed I.A. before the Hon‟ble Supreme Court without obtaining prior sanction of the Government or intimation to the Competent Authority. Accordingly, he was issued charge memorandum dated 11.12.2019 with two charges. This Tribunal vide order dated 11.01.2021 partly allowed the O.A. No. 27/2021 filed by the applicant challenging the said charge memo, holding the charge No.2 to be not sustainable against him. Thus, the respondents proceeded in respect of charge No.1 against him. The applicant filed another OA No. 765/2022 challenging the DoPT O.M. dated 05.10.2021, which was dismissed vide order dated 06.04.2022.
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Item No.35/C-1 OA No. 3107/2022
11. Learned counsel for the respondents further submitted that in accordance with the provisions of FR 56(j), a review was carried out by the respondent department to review the performance of all the employees, after considering their entire service record including the applicant, i.e. his ACRs/APARs, communicated as well as un-communicated remarks, charge memos, criminal cases etc. The case of the applicant was reviewed by the Review Committee consisting of Director, CBI and Additional Director, CBI, as per the notification/circular as applicable to CBI in the case of all Group „A‟ Gazetted Officers (Non-ACC Appointees), which was assisted by the Internal Committee members consisting of Joint Director (Admn.), CBI and Joint Director (Policy), CBI, and recommended that the applicant be compulsorily retired in public interest under FR 56(j). The said recommendations were accepted by the Competent Authority, i.e. the President, and accordingly vide order dated 17.06.2022, the applicant was retired under FR 56(j) and the due amount of salary/emoluments as contemplated were paid to him. He preferred a representation dated 21.07.2022 and also filed O.A. No. 2544/2022. The ibid O.A. was disposed of vide order dated 20.09.2022 with a direction to the respondents to decide the said representation, in accordance with law. 13
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12. In compliance of the aforesaid order passed by this Tribunal, the Representation Committee which was constituted by the Members other than those of Review Committee in accordance with law, i.e. including a Secretary and two Additional Secretaries of the Govt. of India, after going through the entire service record of the applicant, came to the conclusion that the applicant had not only disobeyed and defied the transfer orders issued by the Competent Authority, but conducted perfunctory investigation, shown lackadaisical approach, displayed professional inefficiency etc., for which various charges were levelled against him and had also been cautioned in writing and even a proposal was also moved by the CBI for invocation of FR 56(j) in 2016. Accordingly, the Representation Committee, after considering various points noted and observed by the Review Committee, finally rejected the representation of the applicant on 30.09.2022. The Competent Authority accepted the observations made by the Representation Committee, and passed the order dated 12.10.2022 conveying the decision.
13. The learned counsel for the respondents further argued that the contention of the applicant that his case was reviewed, but that does not mean that his case cannot be reviewed again and the ground of ineffectiveness is a good ground till the date 14 Item No.35/C-1 OA No. 3107/2022 of superannuation of any officer. The applicant has challenged the order of compulsory retirement under FR 56(j). In a catena of judgments, the Hon‟ble Supreme Court has already held that compulsory retirement is not a punishment and the scope of judicial review is very limited and is permissible only on limited grounds of non-application of mind or mala fides and only to look into the decision making process and the procedure followed. Further, the scope of FR 56(j) is totally different, that demands consideration regarding the complete service record of the officer. The O.A. filed for challenging the transfer order was dismissed by this Tribunal, which was challenged before the Hon‟ble High Court and the same is pending consideration and no substantial relief has been granted to the applicant. Despite that, the applicant has deliberately and wilfully disobeyed the order of the Competent Authority. The decision of the Hon‟ble Supreme Court in the case of Alok Kumar Verma has no bearing in the present case.
14. The learned counsel for the respondents further submitted that the name of the applicant was considered for promotion along with others. However, on account of pendency of disciplinary proceedings against him, the recommendation of the DPC was kept in a sealed cover and he was, accordingly, informed vide letter dated 15/18.07.2022. 15
Item No.35/C-1 OA No. 3107/2022 The salary for the period from November, 2018 till June, 2022 has not been paid to the applicant on account of his unauthorised absence, on the principle of „no work no pay‟, as he refused to join at his place of posting and a charge memo has also been issued to him. Since the charge memo is still pending against him, he is entitled to provisional pension only. In support of their averments, the respondents have also relied upon a number of judgments of the Hon‟ble Apex Court as well as the Hon‟ble High Court and this Tribunal pertaining to FR 56(j), which are as under:
(i) Shyam Lal vs. The State of Uttar Pradesh and Ors., AIR 1954 SC 369;
(ii) Union of India vs. J.N. Sinha and Ors., (1970) 2 SCC 458;
(iii) Union of India and Ors. vs. M.E. Reddy and Ors., (1980) 2 SCC 15;
(iv) S. Ramachandra Raju vs. State of Orissa, (1994) Supp (3) SCC 424;
(v) Arun Kumar Gupta vs. State of Jharkhand & Ors., AIR 2020 SC 1175;
(vi) Prabodh Sagar vs. Punjab State Electricity Board and Ors., (2000) 5 SCC 630;
(vii) K. Kandaswamy vs. Union of India, (1995) 6 SCC 162;
(viii) Pyare Mohan Lal vs. State of Jharkhand and Ors., AIR 2010 SC 3753;16
Item No.35/C-1 OA No. 3107/2022
(ix) Nisha Priya Bhatia vs. Union of India, (2020) 13 SCC
56;
(x) Ram Murti Yadav vs. State of Uttar Pradesh and
Others, (2020) 1 SCC 801;
(xi) Baikunthanath Das & Ors. vs. Chief District Medical
Officer, Baripada & Ors., (1992) 2 SCC 299;
(xii) Dalpat Abasaheb Solunke and Ors. vs. Dr. B.S. Mahajan and Ors., (1990) 1 SCC 305;
(xiii) Ashok Kumar Agarwal vs. Union of India in W.P.(C) No. 11177/2020;
(xiv) Alok Kumar Mitra vs. UOI, OA No. 332/450/2019 dated 20.02.2023 passed by Lucknow Bench;
(xv) Vinod Kumar vs. Govt. of NCT of Delhi and Ors. in O.A. No. 3302/2019 dated 21.01.2020; and (xvi) Dr. Anup Kumar Srivastava vs. Union of India & Ors. in O.A. No. 2799/2019 dated 16.01.2023.
15. In rejoinder thereto, the applicant reiterated his arguments and strongly refuted various allegations made by the respondents. The applicant also vehemently opposed the averment made by the respondents in the counter affidavit that the impugned order has been passed in public interest whereas not a single document has been provided to him or placed on record, despite representation dated 24.06.2022, followed by several reminders and even denied the said information/documents under the provisions of RTI Act, 17 Item No.35/C-1 OA No. 3107/2022 2005, which adversely affected in preparing his defence and cross-examination of witnesses in departmental proceedings. He further urged that the matter of disobedience and defiance of the transfer order is pending adjudication before the Hon‟ble High Court and the procedure adopted by the respondents in arriving at a decision to prematurely retire him is vitiated and, accordingly, the impugned order is liable to be quashed and set aside.
16. We have heard the applicant in person and Mr. Hanu Bhaskar, learned counsel appearing for the respondents at length in a number of sittings; perused the pleadings on record and the judgments referred to by both the sides.
17. It is the contention of the applicant that he was granted 3rd financial upgradation in June, 2018 after due consideration by a Committee and was also considered and found eligible for next promotion in the DPC held on 25.05.2022. However, within 17 days thereafter, order dated 17.06.2022 was issued prematurely retiring him under FR 56(j). We have to find out whether the impugned order of compulsory retirement is perverse or in accordance with FR 56(j). We have carefully examined the impugned order dated 17.06.2022 (Annexure A-1), which reads as under: 18
Item No.35/C-1 OA No. 3107/2022 "No. DP Pers.I/2022/1143/A-15012/1/2022-Esttb./Pers.I Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training Central Bureau of Investigation (Administration Division) New Delhi June 17, 2022 ORDER No. 1279/2022 WHEREAS the President of India 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, the President hereby retires Shri Ajay Kumar Bassi, Dy SP. CBI with immediate effect from the afternoon of 17th June, 2022 on completion of 50 years of age and shall be paid a sum equivalent to the amount of his pay and allowances for a period of three months' calculated at the same rate at which he had drawn his last pay.
-sd/-
(D. P. Singh) Administrative Officer (Personnel) Central Bureau of Investigation To, Shri Ajay Kumar Bassi, Dy.SP, CBI R/o C-11, Second Floor, New Multan Nagar, New Delhi-110056.
Mobile No. 9013929082 e-mail: [email protected]"
18. The provision of Fundamental Rule 56(j) reads as under:
"FR 56(j) :- The Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice :-
(i) If he is, in Group 'A' or Group 'B' service or post in a substantive, quasi permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) In any other case after he has attained the age of 55 years."19
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19. We consider it necessary to examine the case law on the subject. In a catena of judgments, the Hon‟ble Supreme Court has held that the scope of judicial review in cases of compulsory retirement by the Courts and Tribunals is limited.
In Nisha Priya Bhatia vs. Union of India, (2020) 13 SCC 56, it has been held as under:
"It is settled law 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 mala fides. Regard can be had to Pyare Mohan Lal vs. State of Jharkhand and Others."
Similarly, in Ram Murty Yadav vs. State of Uttar Pradesh & Another (2020) 1 SCC 801, it has been held that:
"6. The service records of the appellant have been examined by the Screening Committee, the Full Court as also by the Division Bench of the High Court. The scope for judicial review of an order of compulsory retirement based on the subjective satisfaction of the employer is extremely narrow and restricted. Only if it is found to be based on arbitrary or capricious grounds, vitiated by mala fides, overlooks relevant materials, could there be limited scope for interference. The court, in judicial review, cannot sit in judgment over the same as an Appellate Authority. Principles of natural justice have no application in a case of compulsory retirement."
In terms of the above settled position of law, the role of Tribunal is very limited to see whether the decision taken by the respondents in prematurely/compulsorily retiring the applicant suffers from non-application of mind or mala fides. 20
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20. It is also worthwhile quoting some of the landmark judgments which have dealt with the aspects of principles of natural justice, subjective satisfaction and other aspects of applicability of FR 56(j).
(i) In Union of India vs. Col. J.N. Sinha (supa), it has been held as under:
"9. Now coming to the express words of Fundamental Rule 56(j), it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule.' one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Art. - 310 of the Constitution. Various considerations may weigh with, the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that 21 Item No.35/C-1 OA No. 3107/2022 a person of undoubted ability and integrity should be there. ............................................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 interests of the public. 'While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest."
(ii) In Baikuntha Nath Das v. Chief District Medical Officer, the principles of applicability of FR 56(j) were summed up as under:
"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether.
While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed
(a) mala fide or
(b) that it is based on no evidence or
(c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be 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. 22
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(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."
21. The contention of the applicant is that he was considered eligible for promotion by the DPC and nothing was found adverse against him, so FR 56(j) cannot be made applicable in his case which was framed to get rid of incompetent and redundant work force. This aspect has also been considered in Ashok Kumar Aggarwal vs. Union of India and Another in WP(C) No. 11177/2020 vide judgment dated 22.09.2021, the Hon‟ble Delhi High Court held as under:
"32. Even if there are decisions in the matter of suspension, departmental inquiries any challenge of grant of sanction for prosecution in favour of the Petitioner, that does not mean that the Petitioner cannot be compulsorily retired by the Respondents. The observations made in the orders while deciding the matter initiated by the Petitioner is one thing whereas, the order of compulsory retirement which is passed on the basis of entire service record of the Petitioner and the decision taken by Review Committee, is altogether another thing. If any employee of the Union of India has succeeded in litigation(s) that does not mean that looking to the overall service record of the Petitioner, after certain age as per rules, he cannot be retired by the Union of India. It ought to be kept in mind that compulsory retirement is a subjective satisfaction which has been formed on the basis of the entire service record. It is not a punishment. Compulsory retirement may have some adverse effect upon the employee but if the Review Committee is of the opinion that in the interest of public his services should be brought to an end by compulsory retirement after prescribed age on the basis of the entire record of service, such an employee has no right to continue into the services after a prescribed age, as per rules.
33. Rule 56(j) of Fundamental Rules is an extension of "Doctrine of Pleasure", If the employer- Union of India is 23 Item No.35/C-1 OA No. 3107/2022 of the opinion that no useful purpose will be served by continuing an employee into the services of the Union of India, in the public interest such an employee can be made compulsorily retired."
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37. In view of the aforesaid decision even if promotion has been granted to him, still compulsory retirement can be granted by Union of India under Rule 56(j) of Fundamental Rules as under the said rule the entire service record of the employee is to be seen and if the Review Committee is of the opinion that in the interest of public looking to overall service record, the employee requires to be retired, there is no right vested in the employee to continue in the employment after a prescribed age under the Rules."
In view of the above settled position of law, both the events are independent of each other.
22. The applicant has also relied on the DoP&T‟s O.M. dated 28.08.2020 in support of his argument that the impugned order has been passed less than one year of his retirement and the review under FR 56(j) has to follow a time schedule. This aspect has also been taken note of by the Hon‟ble Delhi High Court in Ashok Kumar Aggarwal vs. Union of India and Anr. (supra), wherein it has been clearly held that there is no requirement to take action under FR 56 (j) immediately after attaining the age of 50 years and that such an action can be taken at any time after 50 years.
23. The judgments relied upon by the applicant cannot be suo moto made applicable to the present case, as observed by 24 Item No.35/C-1 OA No. 3107/2022 the Hon‟ble Apex Court in Rafiq vs. State of U.P., (1980) 4 SCC 262, the Hon‟ble Supreme Court has observed as under:
"The ratio of one case cannot be mechanically applied extended to another case without having regard to the factual situation and circumstances pertaining to the two cases."
24. We have also noted that in O.A. No. 765/2022 filed by the applicant challenging the impugned DoPT Memorandum No.221/06/2019-AVD.II (B) dated 05.10.2021 regarding Disciplinary proceedings for major penalty. This Tribunal after going through the matter in detail, dismissed the same with the following observations:
"7. In the instant case, we find that the transfer order of the applicant was passed in public interest which he should have complied by joining at the transferred place, i.e., Port Blair. Moreover, he should have kept himself away from the administrative and legal battle between the top officials in the CBI on the one hand and the Govt. and CVC on the other. The more he tried to link his transfer to such a legal and administrative show down at the top brass, it tends to become all the more in public interest. Hence the prayer of the applicant to quash and set aside the impugned memorandum dated 05.10.2021 for major penalty cannot be acceded to.
8. We do not find any merit in the OA and the same is accordingly dismissed. There shall be no order as to costs."
25. We have also gone through the original records of the Representation Committee, the Review Committee as well as Internal Committee handed over by the respondents in sealed covers. From a perusal of the record, it is revealed that to 25 Item No.35/C-1 OA No. 3107/2022 carry out a periodic review of the employees for strengthening of administration under FR 56(j), a Review Committee comprising Director, CBI and Additional Director, CBI was constituted. An Internal Committee with the composition of Joint Director (Admin.), CBI and Joint Director (Policy), CBI was also formed to assist the Review Committee by bringing out all relevant information, i.e., scrutinizing service books, personal files, leave record, APAR gradings, RDA/Court Cases and any other relevant confidential inputs etc. The Internal Committee called for information/data from all the CBI Branches, which was compiled by Administration Division with supporting documents and adverse inputs, if any, were also called from Policy Division. On scrutiny of the entire service record, the Internal Committee noticed several significantly adverse entries in respect of two Executive Officers, including the applicant and recommended their cases for proceeding under FR 56(j). The Review Committee after considering the entire service record of both the Officers including the applicant, various charges levelled against him and the grounds/views given by the CBI, accepted the recommendations of the Internal Committee and placed the proposal before the Competent Authority for taking appropriate decision. The Competent Authority decided to 26 Item No.35/C-1 OA No. 3107/2022 retire the applicant in public interest. Accordingly, vide order dated 17.06.2022, the applicant was retired under FR 56(j).
On a representation dated 21.07.2022 preferred by the applicant against the said order, the Representation Committee comprising one Secretary and two Additional Secretaries of the Government of India, dealt with the matter in detail in a meeting held on 30.09.2022, and after considering the entire service record, detailed observations as well as reasons recorded by the Review Committee and grounds made by the applicant in the representation, finally recorded its decision as follows:
"The Committee does not find any reasons to interfere in the decision of the Appropriate Authority to prematurely retire Shri Ajay Kumar Bassi in public interest. Considering overall fact and circumstances involved in the case, this Committee is of the view that action taken under 56(j) is fully justified."
The above recommendations of the Representation Committee were accepted by the Competent Authority, i.e. the President, and accordingly the applicant‟s representation was rejected vide order dated 12.10.2022.
26. In a recent judgment passed in O.A. No. 2799/2019 dated 16.01.2023, this Tribunal has also observed as under:
"22. The contentions of the applicant have been discussed and we find that the impugned orders dated 28.08.2019 and 18.06.2019 passed by the Competent Authority do not suffer from any infirmity and illegality.27
Item No.35/C-1 OA No. 3107/2022 The object of such actions is always in public interest. It has been held by the Hon‟ble Apex Court also that it is not for the Courts/Tribunals to see whether the decision of the Government to retire a Government servant is justified or not but for the Government to consider the entire record of service of the employee for taking decision to retire him under FR 56(j).
23. In view of the aforesaid, it is clearly established that the respondents have not erred in any way in passing the order under FR 56(j) to retire the applicant. It is also evident that the applicant was compulsorily retired w.e.f. 18.06.2019, i.e., more than three years back. In view of the facts, the reasons and judicial pronouncements, we find no substance in the present O.A. and the same being devoid of merit, is accordingly dismissed.
There shall be no order as to costs."
27. The applicant has contended that the impugned order has not been passed in public interest and the same has been passed arbitrarily, without following the due procedure. We do not find any substance in his contention because the duly constituted Review Committee assisted by the Internal Committee, after reviewing the entire service record of the applicant and keeping in view the extant rules, reached to the conclusion to retire the applicant prematurely and recommended accordingly. The recommendations of the Review Committee were accepted by the Competent Authority. Thereafter, the representation of the applicant was also considered by the Representation Committee and rejected the same. Accordingly, it cannot be said that the impugned order was passed arbitrarily or with mala fide intent, particularly when it has already undergone multiple 28 Item No.35/C-1 OA No. 3107/2022 levels of scrutiny. As already settled by the Hon‟ble Apex Court, compulsory retirement under FR 56(j) is not a punishment. It is to deal with those employees who have outlived their utility and have become ineffective in performance, are retired prematurely in public interest, either on completion of 50 years of age or 30 years qualifying service.
28. Taking into account the entire conspectus of the case and settled position of law, we do not find any infirmity or illegality in the impugned order dated 17.06.2022 passed by the respondents so there is no occasion to interfere with the same.
29. In view of the aforesaid, the O.A. is devoid of any merit and the same is accordingly dismissed. There shall be no order as to costs.
30. The original records have been returned herewith to the learned counsel for the respondents under due acknowledgement.
(Dr. Anand S. Khati) (Justice Ranjit More)
Member (A) Chairman
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