Central Administrative Tribunal - Mumbai
Maheshpal Arya vs M/O Finance on 23 October, 2024
1 OA No.290/2016
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No.290/2016
Order reserved on: 11.07.2024
Order pronounced on: 23.10.2024
Hon'ble Mr. Justice M.G.Sewlikar, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Shri Maheshpal Arya,
S/o Shri Gangaram Arya,
Age 54 years,
Deputy Commissioner,
Central Excise & Customs, Mumbai Zone-III,
100, Everest House 2nd floor, Marine Lines,
Mumbai-400 002.
R/At
17E/903, Custom Colony,
Mhada, Adi Shakarchaya Marg,
Powai, Mumbai-400 076.
....Applicant
(Applicant in person)
Versus
1. Union of India & others
Through the Revenue Secretary,
Ministry of Finance,
Department of Revenue,
Central Board of Excise and Customs,
North Block, New Delhi-110001.
2. The Secretary,
Ministry of Personnel,
Public Grievances and Pensions, DOPT,
North Block, New Delhi-110001.
2 OA No.290/2016
3. The Chairman,
Ministry of Finance,
Department of Revenue, CBEC,
North Block, New Delhi-110001.
4. Chief Commissioner of Customs,
Mumbai Zone-I, New Custom House,
Ballard Estate,
Mumbai-400 001.
5. Chief Commissioner of Customs,
Mumbai Zone-III, CSI Airport Terminal-2,
Level-6, Andheri (E),
Mumbai-400 059.
6. Chief Vigilance Officer,
Room No.280, Samrat Hotel,
Chanakyapuri, Kautilya Marg,
New Delhi-110021.
7. Principal Director General/Director General,
Western Zonal Unit, Directorate General of
Vigilance,
Customs and Central Excise 7th floor,
New Custom House,
Mumbai-400 001.
... Respondents
(By Advocate: Ms. Poushali Roya Choudhuri h/f
Mr. A.M.Sethna)
ORDER
By Justice M.G.Sewlikar, Member (J) Applicant is challenging the order dated 18th March, 2016 whereby he has been compulsorily retired from service and order dated 22nd September, 3 OA No.290/2016 2016 whereby his representation dated 8th June, 2016 has been rejected.
2. Facts leading to this application are that the applicant was initially appointed as Chemical Assistant Grade-II vide appointment order dated 19thMarch, 1984 and joined the services on the said post on 7th May, 1984 in Central Revenue Control Services (Central Revenue Control Laboratory) under Ministry of Finance, New Delhi. The applicant was then selected through UPSC to the post of Custom Appraiser (Jewellery Expert) in the Department of Customs, Ministry of Finance, Department of Revenue, CBEC, New Delhi. The applicant joined as Customs Appraiser (Jewellery Expert) on 1st September, 1994. The applicant was transferred malafidely during the tenure of his service from 1st September, 1994 to 18th January, 2007. He was transferred to Surat Customs, Gujarat, posted to Bombay Port Trust under Ministry of Surface Transport. One of the reasons for issuing frequent transfer orders was that the applicant never 4 OA No.290/2016 participated and cooperated with his officers to indulge into illegal activities, fraud while performing the nature of duties assigned to him of assessment of goods for levying the import and export duties as per Custom Tariff Act, 1975.
3. The applicant contended that during his service tenure from 1st September, 1994 till February, 2004, his service was unblemished, without any adverse remarks and without any stigma.
4. In the month of March 2004, the applicant was served with a memorandum dated 10th March, 2004. Eight charges were slapped against him alleging that while functioning as Appraising Officer during the month of October 2002 in the new Custom House, Mumbai, the applicant was found to be allegedly delaying the assessment by raising unnecessary queries in respect of a bill of Entry No.299507 dated 7th October, 2002 filed by M/s Amba Shipping Agencies though identical goods were assessed by him earlier on 12th September, 2002 at the same value. The Inquiry Officer found the applicant guilty. 5 OA No.290/2016 The Disciplinary Authority also accepted the report of the IO and imposed punishment of stoppage of one increment without cumulative effect for the period of one year by order dated 2nd February, 2005.
5. Aggrieved by this order, the applicant preferred OA No.766/2011 before this Tribunal. This Tribunal by order dated 3rd July, 2015 quashed the order of the Appellate Authority and the Disciplinary Authority. The applicant contends that he belongs to SC category and for that reason he was being targeted by initiating false actions against him and by subjecting him to frequent transfers. He has averred that during the period from 1st September, 1994 to 18th January, 2007, the applicant was given mostly non-sensitive charges and sensitive charges were allotted to other Appraisers which were not meant for inspection/examination, classification, valuation and assessment of Import and Export goods. The applicant had unblemished service record. APAR of the applicant was upto the mark. 6 OA No.290/2016 There was no adverse entry and that is the reason he was promoted to higher post in the year 2007.
6. It is averred that on 8th February, 2012 the charge memo No.6/2012 was issued against the applicant. The applicant tendered his reply. Till the filing of the OA, the applicant was not provided with the enquiry report. Again on 17th February, 2012 Memorandum No.9/2012 dated 17th February, 2012 and Memorandum No.19/2012 dated 8th June, 2012 were issued to the applicant. The applicant tendered his reply in both the charge sheets. The CBEC did not communicate any decision till date. This indicates that the action was malafide and the enquiry is wilfully delayed to spoil the career of the applicant. Another Memorandum No.6/2016 dated 26th February, 2016 was issued to the applicant. The applicant asked for documents but those were not provided.
7. The applicant due to this continuous harassment and mental agony decided to change his job, and therefore, he had applied for issuance of 7 OA No.290/2016 updated entire experience certificate. The applicant was intending to apply for Director of Laboratories under Ministry of Agriculture. However, the respondents never issued the certificate to the applicant.
8. Applicant was served with the order of compulsory retirement under FR 56 (j) dated 18th March, 2016 which was served on him on 22nd March, 2016. He avers that the Review Committee which recommended his compulsory retirement has to follow the instructions issued by the Government which were not followed by the Review Committee. He contends that the entire service record was not placed before the Review Committee. Unless the entire service record is placed before the Review Committee, the order of compulsory retirement gets vitiated being arbitrary. The applicant was not issued notice before passing the order of compulsory retirement. This order has been passed with a view to deprive the applicant from getting promotion on higher post, i.e. Joint Commissioner. He alleges that 8 OA No.290/2016 he had made representations dated 17th November, 2012 and 30th July, 2013 to the Chief Commissioner of Customs Zone-I and Chief Commissioner of Customs Zone-III Mumbai for his transfer to Precious Cargo Customs Clearing Centre, BKC, Bandra (East), Mumbai. The aforesaid authorities neither replied nor was he transferred which underlines the vindictive attitude of the respondents towards the applicant. The order dated 15th July, 2016 of this Tribunal indicates that applicant had submitted representation through proper channel to the competent authority. The competent authority, during the pendency of the O.A. was directed to decide the representation as early as possible but not later than 6 weeks from the date of receipt of a copy of the order. Accordingly, competent authority decided the representation by order dated 22nd September, 2016. Applicant has, therefore, prayed for setting aside the order dated 18th March, 2016 by which he was retired compulsorily and the order dated 22nd September, 2016 rejecting the representation of the applicant.
9 OA No.290/2016
9. Respondents filed their reply. They contend that the transfer and posting of the Appraising Officers of the Bombay Commissionerate are governed by Standing Order/policy framed from time to time and the transfer orders are issued with the approval of the competent authority. The respondents do not dispute that disciplinary proceedings were initiated against the applicant in which penalty of reduction of one stage for a period of one year was imposed on the applicant. It was upheld by the Appellate Authority. Both these orders were set aside in OA No.766/2011 by the order dated 3rd July, 2015 and his pay was restored. They contend that because of the penalty imposed on him a sealed cover procedure was followed. When this order was set aside, the applicant was promoted. The name of the applicant was not considered in the DPC dated 22nd March, 2016. The applicant was posted on 8th January, 2007 to Rajkot on his promotion to the grade of Assistant Commissioner of Customs and Central Excise. Since it was the 10 OA No.290/2016 beginning of the career as Assistant Commissioner, the applicant might have given some non-sensitive charge as per administration department. The applicant was transferred to SEZ Mundra Port vide Establishment Order No. 04/09 dated 23rd January, 2009. He remained on unauthorized leave during the period from 16th February, 2009 to 2nd March, 2009 and again from 9th march, 2009 to 15th March, 2009. After joining SEZ Mundra Port from 22nd January, 2007, the applicant also misbehaved with Controlling Officers, i.e. Development Commissioner and the Joint Development Commissioner, SEZ, Mundra Port. He also refused to receive certain official communications. On 22nd January 2007 when the applicant was posted at Rajkot he was given the charge of Technical, Statistics and Tax Arrears Recovery Sections of the Commissionerate of Central Excise, Rajkot. He remained on medical leave from 3rd December, 2007 to 3rd June, 2008.
Subsequently he remained absent from 8th December, 2008 to 12th December, 2008 without 11 OA No.290/2016 authorization and also left the station without permission.
10. It is further averred that during his posting at Rajkot the applicant was found to have given wrong declaration of his local residence to claim HRA. He had declared his residence as C/O Shri M.D.Bojani, 7 Seas Apartment, Block No.3, 1st floor, Kailashwadi, Junction Plot, Rajkot whereas he was actually staying in a spare room situated at 1st floor of the office building since he joined his duty at Central Excise, Rajkot. The owner of the said Apartment Shri M.D.Bojani had confirmed that the applicant had never stayed in his Apartment.
11. It is further averred that the applicant tried to influence the then learned Assistant Solicitor General (ASG) to get a writ petition filed by the department rejected. The ASG of the High Court had lodged a complaint with the Commissioner Central Excise, Rajkot that in the second week of September, 2008, the applicant had enquired telephonically about the status of SCA and also requested him to get the writ 12 OA No.290/2016 petition filed by the department rejected. In para 17 of the reply, the respondents have given the details of postings of the applicant to indicate that the applicant had handled all types of charges including sensitive charges during his posting in Mumbai-V Commissionerate. The respondents contend that the enquiry report is still awaited. In another three charge sheets, enquiry reports have been submitted. The caste of the applicant is not a consideration for initiating departmental enquiry against him or his transfers. They contend that in one case the complainant had video graphed the demand for bribe and threats by the applicant for action in case of non-payment. The Review Committee after considering the entire record recommended to retire the applicant prematurely under FR 56(j). Entire service record including the material indicating his lack of integrity was taken into consideration by the Review Committee before arriving at the decision of recommendation for retirement of the applicant under FR 56(j). They contend that four departmental proceedings are pending against the applicant out of 13 OA No.290/2016 which enquiry reports have been received in two cases. In one case Disciplinary Authority's disagreement note has already been sent to the applicant and in another case the findings of the Inquiry officer are under consideration of the Disciplinary Authority. In the third case enquiry report is awaited and in the fourth case the charge sheet was issued to the applicant on 26th February, 2016. They have, therefore, prayed for dismissal of the Original Application.
12. Applicant filed the rejoinder wherein no new point has been raised. In the rejoinder applicant has denied the allegation of the respondents in the affidavit that he was unauthorizedly absent during the period from 8th December, 2018 to 12th December, 2008. He contends that these allegations were levelled against him in charge sheet No.9/2012 dated 17th February, 2012 and as per the report of Inquiry Officer the charge of absenteeism is not proved against him. He was on medical leave on account of serious accident on 1st December, 2007. 14 OA No.290/2016 He was, therefore, on medical leave from that day till 3rd June, 2018.
13. The respondents filed reply to rejoinder. No new point has been raised in reply to rejoinder.
14. We have heard party in person and learned counsel for respondents.
15. Applicant has filed written submissions and also made oral submissions. He contends that he was subjected to harassment and was frequently transferred because of his dedication of work and honesty. The power under FR 56(j) has to be exercised after considering all the aspects with regard to premature retirement. The decision has to be taken in public interest. Before passing the order, advice of UPSC has to be obtained. The Review Committee has to consider the entire service record of the concerned officer. In the case of the applicant, service record from the year 2001 to 2015 was placed before the Review Committee which is evident from the minutes of the Committee. This clearly shows 15 OA No.290/2016 that the basic requirement of FR 56 (j) is not fulfilled. While exercising powers under FR 56 (j) the Review Committee has to consider the entire service record. On this ground alone, the review stands vitiated.
16. It is stated in the written arguments that in terms of FR 56 (j), a government servant can be retired compulsorily in public interest. The reply of the respondents does not throw light on this aspect of the matter. The respondents have failed to explain as to what is the public interest in retiring the applicant. The applicant has been made a scapegoat. He was promoted in the year 2007 and again in the year 2012. Therefore, what persuaded the government to retire the applicant compulsorily is not explained by the respondents. The applicant has been compulsorily retired as the superior authorities nurtured bias against the applicant. In one inquiry, he was found guilty by the Disciplinary Authority and Appellate Authority but these orders have been quashed by this Tribunal. In other enquiries, the Inquiry Officer has given the report that the charges 16 OA No.290/2016 have not been proved. This shows malafides on the part of the respondents. FR 56 (j) proceedings have been initiated against the applicant to deny him promotion to the grade of Joint Commissioner. It is submitted in the written arguments that the ACRs / APARs of all the years of the applicant are 'Very Good'. There is no ACR / APAR in which his integrity is doubted. He invited attention of this Tribunal to the Circular dated 11th September, 2015 of the government which says that compulsory retirement should not be a shortcut method to avoid enquiry against the concerned officer. He contended that if his integrity is doubtful, the respondents should have initiated enquiry against him and this shortcut method of proceedings of FR 56 (j) should not have been resorted to.
17. The criteria in premature retirement under FR 56 (j) is (i) unauthorized absence from duty (ii) medical grounds (iii) inefficiency and (iv) if the integrity is doubtful. The applicant does not fall in any of these categories. He contends that he is a 17 OA No.290/2016 highly qualified person from the backward community. His service record is 'Good'/'Very Good'. The applicant was granted four promotions during the tenure and was due for 5th promotion. The applicant was given the charge of sensitive postings which includes Intelligence Department of the Custom Department. No person whose integrity is doubtful or who is inefficient has ever been posted to such sensitive department where investigation is done against the smugglers and where the security of the country is involved. The authorities were biased against the applicant due to his fighting spirit. It is contended that from the minutes of the meeting dated 16th February, 2016 of the Review Committee, it is seen that there is no record placed before the Review Committee. Only discreet enquiries were made by DG (Vigilance) on general reputation of the officer. Nothing is discussed with regard to the suitability or otherwise in the minutes of the meeting. The Review Committee has taken into consideration that the applicant was on agreed list from 2012-13 to 2015-16. The reason for being in agreed list is not 18 OA No.290/2016 discussed. He contends that once an officer is compulsory retired, the enquiry pending against him should be withdrawn. However, that has not been done by the respondents. Enquiries are still pending. Before passing the order advice of UPSC ought to have been obtained. He contends that once the Disciplinary Authority takes a decision under FR 56(j), the disciplinary proceedings ought to be dropped at that very moment. The respondents denied the disciplinary proceedings in case of the applicant even after passing of the order under FR 56(j) and imposed a penalty under CCS (Pension) Rules, 1972 by withholding pension of the applicant to the extent of 30% for 5 years and 3 years in 3 cases. He placed reliance on the following judgments:
(i) State of Gujarat vs. Umedbhai M. Patel,(2001) 3 SCC 314.
(ii) Narasingh Patnaik vs. State of Orissa, (1996) 3 SCC 619
(iii) Union of India vs. Col. J.N.Sinha&Anr., 1971 AIR 40.
19 OA No.290/2016
(iv) S.R.Tewari vs. Union of India &anr., (2013) 6 SCC 602.
(v) Surendra Kumar Lotan vs. Union of India and others, Civil Writ Petition No.1029/2017
(vi) Mohd. Bashir Rather vs. State of Jammu & Kashmir, SWP No.1562/2015 dated 22nd September, 2017
(vii) Ravindra V.Parmar vs. Union of India and others, (CAT, Ahmedabad Bench) - OA No.369/2018 dated 16th April, 2019.
(viii) Raj Kumar Bhatia vs. Union of India and others, (CAT, Jabalpur Bench) - OA No.985/2016 dated 10th April, 2019.
(ix) Captain Pramod Kumar Bajaj vs. Union of India and another, 2023 SCC Online SC 234.
(x) Jhamman Singh vs. Union of India, Writ Petion No.2390/2022 decided on 2nd February, 2024.
18. Learned counsel for the respondents submitted that the applicant was placed in officers of doubtful integrity category for two years. He submitted that four charge sheets were filed against the applicant. 20 OA No.290/2016 These were pending at the time when the proceedings under FR 56 (j) were initiated. He contended that in one of the charge sheets, the applicant was found guilty but ultimately the Tribunal quashed the orders of Disciplinary Authority and Appellate Authority and the applicant was exonerated. He contended that he did not grant permission to his driver to attend the meeting of the Advisory Committee for governing administration of Customs & Central Excise Welfare Fund and he attended the meeting as per the directions of the Commissioner. The applicant marked the driver's absence with full knowledge that Sh. Kamble, the driver has attended the meeting as directed by the Commissioner. The Review Committee also noted that he remained on leave from 6th June, 2010 to 10th June, 2010 without prior intimation/sanction from the competent authority. The applicant refused to report/write APAR of his subordinate officer Sh. P.A.Tannafor the year 2010- 2011 despite being his Reporting Officer and despite an official communication in this respect. He has also been chargesheetedvide Memo No.19/2012 for 21 OA No.290/2016 inadmissible claim of travelling allowance. The Review Committee noted that the applicant has propensity of rent seeking, insubordination and indiscipline. He is also disrespectful to the written lawful orders and directions of his superiors. He submitted that the Review Committee noted that the report of Directorate of Vigilance with video recording by the complainant confirmed the demand of bribe by the applicant for accepting the BRC's and Negative List enclosing of the file/dropping the demand. This video footage was shown to the applicant in vigilance enquiry. The applicant admitted that he was seen in the video footage but could not explain the demand of bribe and threat to the complainant. The charges of insubordination, unauthorized absence and misdemeanor against him have also been proved from the documents received by the Directorate of Vigilance. Therefore, the Review Committee observed that the conduct and reputation of the applicant is such that his continuance in service would be a menace to public service and injurious to public interest.
22 OA No.290/2016
19. He further argued that the applicant had been placed in the agreed list for the years from 2012-
2013 to 2015-2016 and he had also been continuously placed in the Agreed and ODI lists for the years from 2012-2013 to 2015-2016. Therefore, the Review Committee recommended retirement of the applicant under the provisions of FR 56(j). He contended that OM No.25013/01/2013-Estt.A-IV dated 11th September, 2015 states that in every review, the entire service record should be considered. The expression "service record" will encompass all relevant records and, therefore, the review should not be confined to the consideration of ACR/APAR dossiers. The personal file of the officer may contain valuable material. Even uncommunicated remarks in ACRs/APARs may be taken into consideration. He submitted that having regard to the remarks of the Review Committee, the order passed under FR 56(j) is proper and correct. He submitted that after he was retired prematurely, the applicant was found guilty in three cases and punishment has been awarded. This justifies the 23 OA No.290/2016 action of the respondents taken under FR 56(j). He placed reliance on the following cases:
(i) Captain Pramod Kumar Bajaj Vs. Union of India and Another, 2023 Live Law (SC) 165.
(ii) Prabhod Sagar Vs. Punjab State Electricity Board and others, (2000) 5 SCC 630.
(iii) The State of Jammu and Kashmir and others Vs. Farid Ahmad Tak and others, MANU/SC/0656/2019.
(iv) State of U.P. and others Vs. Abhai Kishore Masta, in Civil Appeal No.8497/1994 decided on 01st December, 1994.
(v) ChhotelalChunihara Vs. Patna High Court and others, in Civil Writ Jurisdiction No.11444/1997 decided on 13th November, 2009.
(vi) State of Gujarat Vs. Narendrakumar V. Parikh, MANU/GJ/0111/2005 decided on 16th February, 2005.
20. We have given thoughtful consideration to the submissions made by the party in person and the learned counsel for the respondents. 24 OA No.290/2016
21. Before proceeding further, it would be apposite to consider the judgments relied upon by the applicant and the learned counsel for the respondents.
22. In the case of Umedbhai M. Patel (supra), the Hon'ble Supreme Court has held thus :
"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.
(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."25 OA No.290/2016
23. In the case of Narasingh Patnaik (supra), it is held as under:
"These remarks relate to the period when the appellant was posted as Executive Engineer. Thereafter he was promoted as Superintending Engineer in May 1978, and in 1984 he was promoted as Chief Engineer (Irrigation). As regards compulsory retirement from service the legal position is well settled :
"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 string, more so, if the promotion is based upon merit (selection) and not upon seniority"."
24. In the case of Col. J.N.Sinha(supra), it is held as under :
"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 26 OA No.290/2016 formed or the decision is based on collateral grounds or that it is an arbitrary decision."
25. In the case of S.R.Tewari (supra), it is held as under:
"14. The court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. The court may be justified in exercising the power of judicial review if the impugned order suffers from mala fide, dishonest or corrupt practices, for the reason, that the order had been passed by the authority beyond the limits conferred upon the authority by the legislature."
26. In the case of Surendra Kumar Lotan (supra), it has been held that the job of the Screening Committee is to look into the entire service record with emphasis on the ACRs of the concerned employee.
27. In the case of Mohd. Bashir Rather (supra), the Hon'ble High Court of Jammu and Kashmir has observed as under:
"15. ........an order of compulsory retirement in public interest can be made subject matter of judicial review on the grounds namely when it is based on no material, when it is arbitrary, when it suffers from the view of non- application of mind and when there is no 27 OA No.290/2016 evidence to support the case. It is well settled legal principle that verbal complainants or enquires would constitute relevant material on the basis of which APRs indicating the integrity of the officer is doubtful can be recorded. (See Rajendar Prasad Verma and others vs. Lieutenant Governor (NCT of Delhi) and others, (2011), 10 SCC 1.)"
28. The judgment of Ahmedabad Bench of this Tribunal in the case of Ravindra V.Parmar (supra), it has held as under :
"18. Further to arrive at a conclusion, the relevant file was called for from the department was perused by us minutely and it is seen from that file that the competent authority does not appear to have recorded on the file its opinion regarding the necessity to retire the Government servants in procedure of these Rules as being in public interest and as mentioned earlier it also appears that the order under FR 56(J) has been arrived on the basis of collateral grounds, which is not permissible as stated in the Supreme Court judgment passed in Union of India vs. Colonel J.N. Sinha &Anr. 1971 AIR 40."
29. The judgment of Jabalpur Bench of this Tribunal in the case of Rajkumar Bhatia (supra), it has held as under:
"12. Hon'ble Supreme Court in Umedbhai M. Patel (supra) has very clearly held that the order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry, when such course is more desirable. In the present case, two chargesheets are pending, but the respondents have decided not to bring it to the logical conclusion, which is not attributable to the applicant."28 OA No.290/2016
30. In the case of Captain Pramod Kumar Bajaj Vs. Union of India and Another, 2023 Live Law (SC) 165, the Hon'ble Supreme Court has held as under:
"23. In State of Gujarat vs. Umedbhai M. Patel, this Court has delineated the following broad principles that ought to be followed in matters relating to compulsory retirement : -
"11. The law relating to compulsory retirement has now crystallized into a definite principle, which could be broadly summarized thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having the 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.29 OA No.290/2016
24. In Nand Kumar Verma v. State of Jharkhand and Others, this Court has once again highlighted the permissibility of ascertaining the existence of valid material by a Court for the authorities to pass an order of compulsory retirement and observed thus: -
"34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the Courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into 17 (1999) 1 SCC 529 18 (2001) 3 SCC 314 19 (2012) 3 SCC 580 9 consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy..........."
[emphasis added]
25. In a recent judgment in the case of Nisha Priya Bhatia v. Union of India, confronted with the question as to whether action taken under Rule 135 of the Research and Analysis Wing (Recruitment Cadre and Service) Rules, 1975 is in the nature of "a penalty or a dismissal clothed as compulsory retirement" so as to attract Article 311 of the Constitution of India, this Court has held that "the real test for this examination is to see whether the order of compulsory retirement is occasioned by the concern of unsuitability or as a punishment for misconduct". For drawing this distinction, reliance has been placed on the judgment in State of Bombay v. Saubhag Chand M. Doshi, where a distinction was made between an order of dismissal and order of compulsory retirement in the following words :
"9 ... Under the rules, an order of dismissal is a punishment laid on a government servant, when it is found that he has been guilty of 30 OA No.290/2016 misconduct or inefficiency or the like, and it is penal in character, because it involves loss of pension which under the rules would have accrued in respect of the service already put in.
An order of removal also stands on the same footing as an order of dismissal, and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for re-
appointment, one who is removed is. An order of retirement differs both from an order of dismissal and an order of removal, in that it is not a form of punishment prescribed by the rules, and involves no penal consequences, inasmuch as the person retired is entitled to pension proportionate to the period of service standing to his credit."
[emphasis added]"
31. In the case of Prabhod Sagar Vs. Punjab State Electricity Board and others, (2000) 5 SCC 630, it has been held that "Mere user of the word 'malafide' by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion".
32. In the case of Farid Ahmad Tak (supra), it is held as under :
"10. It was submitted by Mr. M. Shoeb Alam, learned advocate for the appellant that the law laid down by this Court in various decisions, leading case being Baikuntha Nath Das and Another vs. Chief District Medical Officer, Baripada and Another, is very clear and summed up in paragraph 31 OA No.290/2016 no. 34 of the decision in Baikuntha Nath Das2 as under:-
"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.
(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 32 OA No.290/2016 uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."
33. In the case of Abhai Kishore Masta (supra), the Hon'ble Supreme Court has held as under :
"8. In the State of U.P v. Madan Mohan Nagar, (1967) 2 SCR 333 it has been held by a Constitution Bench that the test to be applied in such matters is "does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsorily ?" It was observed that if the charge or imputation against the officer is made the condition of the exercise of the power it must be held to be by way of punishment otherwise not. In other words 'If it is found that the authority has adopted an easier course of retiring the employee under Rule 56(j) instead of proceeding with and concluding the enquiry or where it is found that the main reason for compulsorily retiring the employee is the pendency of the disciplinary proceeding or the levelling of the charges, as the case may be, it would be a case for holding it to be penal. But there may also be a case where the order of compulsory retirement is not really or mainly based upon the charges or the pendency of disciplinary enquiry. As a matter of fact, in many cases, it may happen that the authority competent to retire compulsorily under Rule 56(j) and authority competent to impose the punishment in the disciplinary enquiry are different. It may also be that the charges communicated or the pendency of the disciplinary enquiry is only one of the several circumstances taken into consideration. In such cases it cannot be said that merely because the order of compulsory retirement is made after the charges are communicated or during the pendency of disciplinary enquiry, it Is penal in nature.
xxx xxx xxx
12. We are, therefore, of the opinion that the High Court was in error in holding that merely because the order of compulsory retirement was passed during the pendency of a disciplinary enquiry, it must be 33 OA No.290/2016 necessarily deemed to be penal in nature, is unsustainable in law. The judgment of the High Court is accordingly set aside and the matter is remitted to the High Court to determine, in the right of the observations made herein, whether the order of compulsory retirement is, in truth, penal in nature? There shall be no order as to costs."
34. In the case of ChhotelalChunihara (supra), the Hon'ble Supreme Court has held as under:
"14. We are also of the considered view that merely because a departmental proceeding had been initiated and was pending, there was no legal bar upon the power of the employer to consider and pass the order for compulsory retirement because of availability of materials. The submission that such order was passed by way of penalty to circumvent passing an order on merits in the disciplinary proceeding does not appear to have any substance when it is clear from the relevant dates that when the Standing Committee as well as the Full Court considered to retire the petitioner compulsorily in public interest under relevant rules, even the enquiry report was not available and there was no material on the basis whereof it could be decided to punish the petitioner for any lapses. Charges were still under enquiry and the findings of the Enquiry Officer were not known to anyone. Hence, in the facts of the case it cannot be said that the order of compulsory retirement was a camouflage for passing an order of punishment."
35. In the case of Narendrakumar V. Parikh (supra), the Hon'ble High Court of Gujarat has held as under:
"11. Considering the above service record and the factum of pending disciplinary proceeding, the Review Committee, in its meeting held on 31st May, 1989, opined that the respondent be compulsorily retired in exercise of power conferred by Rule 34 OA No.290/2016 161(1)(aa)(i)(1) of the Rules. The recommendation made by the Review Committee was approved by the concerned head of the department and the State Government in its General Administration Department. Pursuant to such approval the impugned order of compulsory retirement came to be made as aforesaid.
12. In view of the above facts, we are of the opinion that at no point of time the respondent's service was found to be satisfactory so as to terminate the period of probation and to continue him for a longer period. His compulsory retirement after he attained the age of 50 years was but in the interest of public. The observation made by the learned Single Judge that the order of compulsory retirement was made with a view to short-circuiting the disciplinary proceeding does not seem to be justified in the background of the above facts. Besides, we are told that the disciplinary proceeding then pending against the respondent has now been completed. By order dated 14th May, 2001 the respondent has been visited with punishment of reduction in monthly pension by Rs.500=00 for a period of 5 years. As recorded hereinabove, apart from the pending disciplinary proceeding the service record of the respondent indicated that he was an officer below par and was not suitable for Class-II post. His integrity too was doubtful and a disciplinary proceeding in the matter of his obtaining House Building Advance by misrepresentation was pending at the relevant time which has culminated into punishment as aforesaid. We are, therefore, of the opinion that the order of compulsory retirement made against the respondent was based on subjective satisfaction arrived at on the basis of the aforesaid service record of the respondent. The said decision was in consonance with Rule 161(1)(aa)(i)(1) of the Rules. The same did not call for interference by the High Court in exercise of its power of judicial review."
36. On the basis of the above case laws of Hon'ble Supreme Court, Hon'ble High court and various 35 OA No.290/2016 decisions of this Tribunal, we have to see whether the order of compulsory retirement is proper or not.
37. The DoP&T has issued OM No. 25013/01/2013-Estt.A-IV dated 11th September, 2015, relevant part of which reads as under:
"2. Various instructions issued on the subject deal with compulsory retirement under the above mentioned provisions. The Supreme Court has observed in State of Gtyaral Vs. Umedbhai M. Patel, 2001 (3) SCC 314 as follows:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) "For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer."
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even un-communicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a 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.
36 OA No.290/2016
3. In every review, the entire service records should be considered. The expression 'service record' will take in all relevant records and hence the review should not be confined to the consideration of the ACR / APAR dossier. The personal file of the officer may contain valuable material. Similarly, the work and performance of the officer could also be assessed by looking into files dealt with by him or in any papers or reports prepared and submitted by him. It would be useful if the Ministry/Department puts together all the data available about the officers and prepares a comprehensive brief for consideration by the Review Committee. Even uncommunicated remarks in the ACRs/APARs may be taken into consideration.
4. In the case of those officers who have been promoted during the last five years, the previous entries in the ACRs may be taken into account if the officer was promoted on the basis of seniority cum fitness, and not on the basis of merit.
5. As far as integrity is considered, the following observations of the Hon'ble Supreme Court may, while upholding compulsory retirement in a case, may be kept in view:
The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace to public service and injurious to public interest.
S. Ramachandra Raju vs. State of Orissa [(1994) 3 SCC 424] Thus while considering integrity of an employee, actions or decisions taken by the employee which do not appear to be above board, complaints received against him, or suspicious property transactions, for which there may not be sufficient evidence to initiate departmental proceedings, may be taken into account. Judgement of the Apex Court in the case of Shri K. Kandaswamy, L.P.S. (TN:1966) in K. Kandaswamy vs Union Of India &Anr, 1996 AIR 277, 1995 SCC (6) 162 is relevant here. There were persistent reports of Shri 37 OA No.290/2016 Kandaswamy acquiring large assets and of his getting money from his subordinates. He also indulged in property transactions which gave rise to suspicion about his bonafides. The Hon'ble Supreme Court upheld his compulsory retirement under provisions of the relevant Rules.
6. Similarly, reports of conduct unbecoming of a Government servant may also form basis for compulsory retirement. As per the Hon'ble Supreme Court in State of U.P.And Others vs Vijay Kumar Jain, Appeal (Civil) 2083 of 2002:
If conduct of a government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest."
38. Party in person laid emphasis on para 2 (vi) of this OM that the order of compulsory retirement shall not be passed as a short cut to overcome departmental enquiry where such cases are not desirable.
39. Para 3 of the OM states that the entire service records should be considered in a review. The expression service record would encompass all the relevant records and hence the review should not be confined to the consideration of ACR/APAR dossier.
The personal file of the officer may contain valuable material. The work and performance of the officer shall be assessed by looking into files dealt with by 38 OA No.290/2016 him or in any papers or reports prepared and submitted by him. Reports of conduct unbecoming of a Government servant may also form basis for compulsory retirement.
40. Government has an absolute right to retire prematurely an employee whose conduct has become unbecoming of a Government servant or obstruct the efficiency in public service. From the report of the Review Committee following facts were noted by it:
"3. It was noted by the Review Committee that the Officer's personal conduct and integrity as Assistant Commissioner of Central Excise, Mumbai-V had come under serious cloud several times. There have been several cases in which Departmental proceedings against him had been instituted. Briefly, the facts in various cases, noted by the Review Committee are as follows:
(i) Shri Vijay Jhangiani, Director of M/s Giani Clothing Pvt. Ltd., Mumbai, met the Commissioner of Central Excise, Mumbai-V on 05.05.2011 and complained that they had applied online for the grant of Registration Certificate on 11/04/2011 but were not allotted the assessee code for online payment of Central Excise duty through Bank due to which they could not pay duty till the last permissible date. The Director also complained that when they approached the Divisional Office for the said Certificate, Shri M.P. Arya, Deputy Commissioner demanded Rs. 10,000/-
which was refused by him. The Assessee Code was issued to them only on 05/05/2011 after intervention by the Commissioner of Central Excise. The Director also filed a written complaint on 13.05.2011 and reiterated these facts as stated above. The Commissioner, Central Excise, Mumbai-V in his Report dated 30.05.2011 observed that there was an 39 OA No.290/2016 inordinate delay on the part of Shri M.P. Arya in the issue of Registration Certificate. Further, despite issue of Registration Certificate on 04.05.2011, he had not assigned the post registration verification to the jurisdictional Range Superintendent. He did it only after the intervention by the Commissioner. Shri Ajay Jhangiani, another Director of the firm and one Shri Bipin M. Desai Central Excise Consultant in their statements to the Directorate General of Vigilance also confirmed the demand of Rs. 10,000/- by Shri M.P. Arya. The vigilance investigations also confirmed that there was no problem in the working of ACES System during the relevant period, i.e., 11.04.2011 to 04.05.2011. Major Penalty proceedings have been proposed against Shri Arya and the matter has been referred to CVC for 1stStage Advice on 11.02.2016.
(ii) Sh Mohd. Shoeb Khan, Director of M/S Keygien Global Ltd, Mumbai, filed a complaint on 14.02.2013 alleging that despite furnishing all the original Bank Realization Certificates and Negative Statements as desired by the Department for sanction of Drawback claim of Rs 3,05,039/-, Shri M.P. Arya demanded Rs 30,000/-as bribe and in case of non-payment threatened to pass an order for recovery or Drawback Amount with a penalty of Rs 1 Lakh per Shipping Bill. Later on, he reduced the demand to Rs 25,000/-. He also complained that Shri M.P. Arya had harassed him for 4 months and refused to accept the BRCs from the Accounts Officer and demanded that MD should personally meet him. The complainant and the Chairman of the aforesaid company had 5 meetings with him and he declined to accept and acknowledge the receipt of BRCs. The complainant had also video graphed the conversation with Shri M.P. Arya and annexed the same with the Complaint. The complainant also appeared before the Deputy Commissioner (Vigilance) who recorded his statement on 11.06.2013 wherein the complainant re-iterated the above charges against Shri MP Arya and confirmed having recorded the Conversation. The CVC vide its OM No. 015/CEX/040/302427 dated 16.12.2015advised initiation of Major Penalty Proceedings against him.
(iii) Sh M.P. Arya, during his posting as Deputy Commissioner in the Commissionerate of Central Excise-Mumbai-VAndheri Division, has also been issued another charge sheet vide Memo No.06/2012 on 08.02.2012 for his alleged acts of willful insubordination, disobedience of the lawful orders of 40 OA No.290/2016 the superiors, indiscipline and negligent approach towards office work and for unauthorized absence. The charges included:-
- his direction to the subordinate Officers to examine the case of one M/s Prestige Castings Pvt. Limited, Mumbai despite clear cut orders from the Commissioner not to pursue the matter as there was no merit in the issue and without obtaining the approval of the Commissioner for the directions issued despite the clear orders of the Commissioner;
- not granting permission to Shri S.N. Kamble, Driver to attend the meeting of Advisory Committee for Governing Administration of Customs & Central Excise Welfare Fund and when he attended the meeting as per the directions of the Commissioner, marked him absent with full knowledge that Shri Kamble had attended the meeting as directed by the Commissioner;
- not attending to the work of Statistics & Technical Section of Hqrs. despite the Commissioner's Order and returned files put up by the subordinates without signatures/remarks;
- remaining on leave from 6.06.2010 to 10.06.2010 without prior intimation/sanction from the competent authority;
- refusing to report write APAR of his subordinate Officer Shri P.A. Tanna for the year 2010-2011 despite being his Reporting Officer and despite an official communication to this extent.
4. In respect of a case of filing an inadmissible Travelling Allowance claim by him, the CVC, vide OM No.012/CEX/019 dated 07.05.2012, has advised Regular Departmental Action for Major penalty proceedings. A charge sheet was issued to Shri M.P. Arya vide Memo No. 19/2012 dated 08.06.2012.
5. The Review Committee examined these cases in the light of instructions issued by the DoPT in its latest OM No. 25013/01/2013-Estt.A-IV dated 11.9.2015 on the subject of probity and the judgments of the Hon'ble Supreme Court mentioned therein.
6. The Review Committee finds that Shri M.P. Arya has the propensity of rentseeking, insubordination 41 OA No.290/2016 and indiscipline. The above instances bring out clearly that not only is the integrity of Shri MP Arya doubtful, he is also an inefficient officer whose attitude is not in line with the Department's policies and instructions of providing a hassle free tax administration to its tax payers. He is also disrespectful to the written lawful orders and directions of his superiors. The Review Committee noted from the material on the records of Directorate of Vigilance that the videorecording by the complainant confirmed the demand of bribe by Shri M.P. Arya for accepting the BRCs and Negative List and closing of the file / dropping the demand. Shri M.P. Arya admitted in the vigilance inquiry that he was seen in the video footage but could not explain the demand of bribe and threat for non-payment.
Similarly the charges of insubordination, unauthorized absence and misdemeanour against him have also been proved from the documents received by the Directorate of Vigilance from the Commissioner Central Excise, Mumbai-V."
41. From these notings, it is seen that APARs for the period from 2001-2015 were placed before the Review Committee. Review Committee has noted that remark of the applicant was 'Good' for the year 2009-2010 (from 17th June, 2009 to 31st March, 2010) and from 1st April, 2011 to 30th November, 2011, he had been 'Very Good'.
42. So far as integrity of the applicant is concerned, no APAR was brought to the notice of Review Committee to show that the integrity of the applicant was doubtful. However, the notings made by the Review Committee on the basis of Vigilance enquiry 42 OA No.290/2016 do cast cloud on the integrity on the applicant. The notings of the Review Committee in para 3 (ii) show that one Mohd. Shoeb Khan, Director of M/S Keygien Global Ltd, Mumbai had filed a complaint on 14.02.2013 alleging that applicant had demanded Rs.30,000/- as bribe, in case of non-payment threatened to pass an order for recovery of Drawback Amount with penalty of Rs.1 Lakh per Shipping Bill. Later on, this demand was reduced to Rs.25,000/- by the applicant. Applicant harassed him for four months and refused to accept BRCs from the Accounts Officer and demanded that MD should personally meet him. The complainant had also video graphed the conversation with the applicant and had annexed the same with the complaint. Para 6 of the Review Committee minutes shows that the applicant admitted in the vigilance enquiry that he was seen in the video footage but could not explain the demand for bribe and threat for non-payment.
43. The applicant in his OA or rejoinder has not thrown much light on this aspect of the matter. In 43 OA No.290/2016 the OA the applicant has made following averments in this respect:
"4.50) ....... In this regard notices were issued to party for providing the documents BRC,LC, Invoices, copy of shipping bills etc.& their statement of records. To the best of applicant's knowledge, one person Mr. Khan age 62-65 years was appeared before the applicant for recording his statement but he did not submitted the documents as stated above including all BRC (Bank Realization Certificates) during material point of time. In the meantime the concerned commissioner has called the Applicant & after meeting with commissioner, the applicant came to his cabin &told shri khan to sign the hearing papers i.e. statements/proceedings to be recorded during hearing & give all documents including all BRC of which Mr Khan did not had in his possession or custody at the relevant point of time. Mr Khan verbally told the applicant that he shall submit these documents within 08 week & ran away without making signature on the hearing papers. Thereafter the commissioner of customs pressurized the Applicant to complete the adjudication of Mr Khan's Case but according directions of Commissioner in spite of number of notices were issued to Keygin Gloval Ltd at Mumbai of Mr Khan he did not submitted the aforesaid papers in the drawback section. Thereafter one Mr Shoeb Khan age-30-35 years appeared in the hearing on behalf of Keygin Gloval Ltd & the applicant personally told him to provide all the aforesaid papers so that adjudicating process can be completed but he was not responded from time to time. Hence since Mr Khan was not providing documents applicant told him that amount of DBK (Brawback) with interest i.e. (incentive already received by Assesses on Exported Goods)was liable to be recovered from him i.e. his Company & in case goods were exported in violation of Exim policy & customAct,1962 in that case a provision is made in the Act for imposition of penalty of Rs 1/- lakh ( one Lakh ) to be imposed / levy on party / exporter as per Custom Act,1962. But after few days the applicant came to know that Mr Shoeb Khan made a VCD/CD with the direction of applicant's higher authority/group of person to blackmail the Applicant to misuse and misinterpret the 44 OA No.290/2016 (Audio/video) recording to make certain serious but false and frivolous allegations of indulgence in fraud or otherwise etc. as falsely stated in the minutes. This matter was personally brought to the knowledge of commissioner of custom (export) &chief commissioner of customs MZ-III by the Applicant but no action was taken against the same for long period of time for the reasons not known to the applicant. It is essential to note that the commissioner of customs / chief commissioner of customs have not given the Applicant a copy of alleged complaint filed by Shoeb Khan or any other person but issue was precipitated and starched beyond its proportion to allege falsely against the applicant. It is true that commissioner has not given any supporting staff for this additional charge but pressurized the Applicant to complete the adjudication work. This Hon'ble Court be pleased to call for the original record of the keygin Gloval Ltd to assess and examine the truth and correct position.
4.51) Further In the aforesaid matter vigilance Directorate (C&CE) recorded the statement of the Applicant wherein the Applicant stated him that he never demanded a single penny from Shoeb Khan and his father. Further the Applicant requested to provide copies of complaint & statements recorded but vigilance Directorate (C&CE) did not provide to the Applicant the said documents."
44. From these averments, it is clear that the applicant admits that there was a complaint against him in regard to the complaint of Mohd. Shoeb Khan, Director of M/s. Keygin Gloval Ltd. From the averments made by the applicant, it is seen that he does not deny that there was some video recording. He has nowhere denied that during vigilance enquiry, the video record was shown to him and he admitted 45 OA No.290/2016 his presence in the video and so far as demand was concerned, he did not make any statement and kept quiet. Thus, the Review Committee's notings clearly show that the applicant was given opportunity to explain as to whether he was the same person and as to whether he had made a demand of illegal gratification. In the OA he had the opportunity to explain as to whether during vigilance inquiry he had denied his presence in the video and that he had denied that he had ever made any such demand of illegal gratification. Therefore, the notings of the Review Committee based on vigilance enquiry report, it is clear that the integrity of the applicant was doubtful. APAR is not the only criteria to determine whether the integrity of the applicant was above board. It is quite possible that the Reporting Officer may not receive the complaints about the integrity of the employee. For that reason, the Reporting Officer may pass remark about the integrity of the accused above board. As indicated in the OM of DoP&T (supra), the other records of the file of the applicant have also to be considered. The above vigilance 46 OA No.290/2016 record clearly shows that the integrity of the applicant is not beyond doubt. Therefore, the Government was justified in compulsorily retiring the applicant. Therefore, merely because ACR/APAR of all the years was not produced before Review Committee, the order of compulsory retirement does not get vitiated.
45. It is true that three inquiries were pending against the applicant when the applicant was compulsorily retired. On this basis, it was argued that the Government by adopting short cut method, compulsorily retired the applicant, which is against the judgments of Hon'ble Supreme Court discussed hereinabove. We do not find any substance in this contention of the applicant. As indicated above, in the case of Chhotelal Chunihara (supra) mere pendency of charge sheet cannot be a ground to infer that applicant has been punished by adopting a short cut method. As per the own showing of the applicant in his written arguments that the applicant has been found guilty in three charge sheets and 47 OA No.290/2016 punishment has been awarded on him. Thus, this material clearly shows that the applicant was not punished and no short cut method of compulsory retirement was adopted to avoid inquiry. At the cost of repetition, it has to be stated that the video recording regarding the demand of illegal gratification by the applicant and his silence when it was shown to him and was asked to explain clearly cast doubt on his integrity. Therefore, as stated in OM dated 11th September, 2015 in which observations of Hon'ble Supreme Court are quoted to the effect that "the officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace to public service and injurious to public interest." [S. Ramachandra Raju vs. State of Orissa, (1994) 3 SCC 424]. Therefore, just because inquiry was not conducted does not mean that to avoid punitive action, action of compulsory retirement was taken. On the face of this evidence, 48 OA No.290/2016 we are of the considered opinion that the respondents did not commit any error in exercising its powers under FR 56(j).
46. OA is, therefore, without any substance. Hence, it is dismissed with no order as to costs.
(Rajinder Kashyap) (M.G.Sewlikar) Member (A) Member (J) 'SD'