Central Administrative Tribunal - Delhi
Umesh Kumar Goel vs M/O Finance on 12 March, 2025
1
OA 3163/2016
Item No.17 /C-1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3163/2016
Order reserved on: 20.01.2025
Order pronounced on:12.03.2025
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
Shri Umesh Kumar Goel
Joint Commissioner of Customs & Central Excise
Son of Shri Gopi Chand Goel
Aged about 51 years,
Resident C/o Jhunthra Petrocity,
Dabwali Road, Sirsa -125055,
Haryana.
... Applicant
(By Advocate: Mr. M.K. Bhardwaj)
Versus
1. Union of India,
Through Finance Secretary,
Govt. of India, North Block,
New Delhi-11001.
2. The Secretary (Revenue)
Ministry of Finance,
Govt. of India, North Block,
New Delhi-110001.
... Respondents
(By Advocates: Mr. Hanu Bhaskar, Mr. R.V. Sinha, Mr. Y.P.
Singh)
2
OA 3163/2016
Item No.17 /C-1
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):
By way of the present OA filed under Section 19 of the Administrative Tribunal‟s Act, 1985 (amended OA vide Tribunal‟s order dated 18.12.2024), the applicant has prayed for the following reliefs: -
"a). Issue a writ of certiorari or any other writ of like nature declaring the impugned order dated 18.03.2016 as illegal, unconstitutional and violative of right to fair treatment under article 14, 16 19, and 21 of the Constitution and quashing the same as well as subsequent order dated 08.09.2016 rejecting the representation of the applicant.
b). Issue a writ of Mandamus or any other writ of like nature directing the respondents to do its public duty of reinstating the Applicant to the post of Joint Commissioner with all consequential benefits and
c) Pass any other order which this Hon'ble Tribunal may deem fit and proper to do complete justice to the matter/case."
2. The applicant had filed Misc. Application No. 4761/2024 in OA No. 3153/2016 seeking permission of this Tribunal to make certain amendments in the prayer clause as sought for in the Original Application, to the extent to add date of the order vide which his representation submitted against his compulsory retirement under FR 56 (j) was rejected. Vide order dated 18.12.2024, the said Misc. Application was allowed and the applicant was permitted to amend the said prayer clause of the OA and was directed to carry out necessary amendments. 3 OA 3163/2016 Item No.17 /C-1
3. Vide another Misc. Application (MA) No. 4764/2024 in OA No. 3163/2016 applicant has prayed for taking certain additional documents as mentioned in the said MA on records. FACTS IN BRIEF
4. The brief facts of this case are that the Applicant joined on 06.09.1993 as Probationer of Indian Customs & Central Excise Service and was promoted as Assistant Commissioner (Senior Time Scale) w.e.f. 5.9.1997. He was further promoted as Joint Commissioner (Customs & Central Excise) on 16.01.2003. In the year 2001, the SU unit of CBI started investigation into the alleged acquisition of business profit by showing trading in diamonds by applicant‟s wife Smt. Vandana Goel in partnership with one Shri Anil Jain through a firm M/s V.B. Exports, Mumbai. In the meantime, the applicant got further promotion as Joint Commissioner (Customs & Central Excise).
5. After conclusion of Investigation by the CBI against the applicant, an FIR No. RC-23(A)/2004-GNR was registered on 26.09.2004 for the alleged offence of offering illegal gratification to the investigating officer, namely, Shri R.K. Das. It is stated that CBI converted the PE into FIR on 02.10.2004. During the pendency of the same on 16.02.2016, the Review Committee met and recommended compulsory retirement of the applicant, minutes whereof were signed on 26.02.2016 and finally vide 4 OA 3163/2016 Item No.17 /C-1 order dated 18.03.2016 (impugned order), he was served with the said impugned order of compulsory retirement in public interest, which was received by him on 23.03.2016. The applicant made representations to the respondents to seek personal hearing in the matter from 23.03.2016 onwards. The respondents‟ Department on 25.07.2016 constituted a Committee (Representation Committee) to consider his representations. The said Committee, rejected the aforesaid representation vide order dated 08.09.2016. Being aggrieved by the aforesaid decision of the respondents, the applicant filed present Original Application seeking aforementioned relief.
6. On admission of the matter, notices were issued to the respondents and they have filed their counter affidavit to which the applicant also filed his rejoinder.
CASE OF RESPONDENTS
7. To rebut the claim of applicant as well as his arguments, the respondents filed counter affidavit on 01.02.2017 stating that the order No. 27/2016 dated 18.03.2016 passed by the competent authority is strictly in accordance with law and there is no breach of any of the principles of law governing the compulsory retirement of a Government Servant as contained in FR 56 (j) as well as the instructions on the subject issued by the DOP&T from time to time. He stated that the Review Committee noted that the personal conduct and integrity of the applicant as Deputy 5 OA 3163/2016 Item No.17 /C-1 Commissioner of Central Excise, Surat, during the year 1997 to 2003, had come in question in the year 2004 when he was arrested by the Central Bureau of Investigation for the offence of having offered illegal gratification to one of its Officers, namely, Shri R.K. Das, who was the CBIs Investigating Officer in the alleged acquisition of an amount of Rs.5.28 Crore by the applicant by showing trading in diamonds by his wife Smt. Vandana Goel in partnership with one Shri Anil Jain through a firm M/s V.B. Exports, Mumbai. The CBI registered a Preliminary Enquiry (PE) against him stating that while posted as Deputy Commissioner at Surat he amassed enormous wealth by indulging in corrupt practices. He was officially required to deal with various diamond traders and through that connection made a partnership firm M/s V.B. Exports, Mumbai in the names of his wife Smt. Vandana Goel with one Shri Anil Jain. The said firm was alleged to have made a profit of Rs.5 Crore without investing even a single rupee within a period of just 57 days from 04.02.2000 to 31.03.2000. The said Shri Anil Jain was already in the business of diamond exports as Director of another diamond trading firm. The Preliminary Enquiry was later converted by the CBI into a Regular Complaint RC 25(A)/2004-GNR on 02.10.2004.
8. The applicant was arrested by the CBI in connection with aforesaid case on 22.01.2010 and remained in custody till 27.01.2010, and was placed under suspension on 26.02.2010. 6 OA 3163/2016 Item No.17 /C-1 Further, the CBI in its report dated 27.09.2010 informed the Chief Vigilance Officer (CVO, Central Board of Excise and Customs (CBEC) that it was not able to gather enough evidence to substantiate the allegations in the FIR and, therefore, no case of disproportionate assets could be made out against him.
9. The CBI, however, recommended major penalty proceedings against the applicant for engaging directly or indirectly in trade or business of his wife without previous sanction of the Government. The CBI filed a closure report with the Special Judge, Ahmedabad on 15.11.2010 and the said report was accepted by the Special Judge on 21.12.2010. The case was closed by the Department on 18.06.2013.
10. The learned counsel of the respondents further stated that during investigation the applicant had tried to influence the course of CBI investigation by offering bribe of Rs. 2 Lakh to the CBI Investigating Officer, Shri R.K. Das. He was caught red handed in presence of witnesses at the residential premises of Shri R.K. Das on 26.09.2004 and another Regular Complaint RC 23 (A) /2004 - GNR dated 26.09.2004 was registered. He was arrested and was placed under suspension on 04.10.2004 w.e.f. 26.09.20024. Thereafter, his suspension was revoked on 31.10.2007. The CBI filed a Charge Sheet against him in the Court of Special Judge, Ahmedabad on 27.09.2005. The efforts by the applicant for arranging the bribe amount and to contact the 7 OA 3163/2016 Item No.17 /C-1 investigating officer of CBI, Shri R.K. Das as also his movements were well documented in the form of recoveries and statements and audio/video recordings done during the proceedings by the CBI. All these were part of the Charge Sheet. An amount of Rs. 6 Lakh, out of which Rs. 2 lakh was allegedly offered to the Investigating Officer, was in fact dispatched from Surat to Ahmedabad by one Shri Mahesh Kabutarwala, wherein, the matter is pending trial in the competent court.
11. It is further stated that though the CBI was not able to gather sufficient evidence to substantiate the allegations in the FIR registered regarding laundering of ill-gotten wealth, and that no case of disproportionate assets could be made out against the applicant as the evidences were not sufficient to prosecute him, yet the very fact that he tried to influence the investigation of CBI by offering illegal gratification to the Investigating Officer of the CBI was clearly suggestive of the personal interest of the applicant in the affairs of the partnership firm wherein his wife was a partner. The extent of his involvement in the business of his wife was clear from the fact that he allegedly tried to influence the course of investigation against her firm and offered bribe of Rs. 2 lakhs to the investigating officer of the CBI.
12. The Review Committee was of the considered opinion that acceptance of the CVC‟s advice to drop disciplinary proceedings as also closure of the CBI case by the concerned CBI Court for want 8 OA 3163/2016 Item No.17 /C-1 of adequate evidence to prosecute the officer might have been the relevant factors for the purposes of initiating disciplinary proceedings and prosecution in the Court, however, for the purposes of FR 56 (j), the facts and circumstances of the case mentioned above were sufficient for recommending action of compulsory retirement, as this material was sufficient to conclude that the integrity of the applicant was in serious doubt.
13. The Review Committee also noted that the Reviewing Officer in the year 2010-2011, when the applicant was posted in the office of the Commissioner, TAX Arrears Recovery, had recorded his performance as „Average‟ and similarly in the year 2013-2014, the Reviewing Officer made certain observations which reflect negatively on his competency and efficiency. A discreet inquiry against the applicant also indicated that he had also not shown requisite commitment to work.
14. Learned counsel for the respondents submitted that personal conduct and integrity of the applicant as Deputy Commissioner of Central Excise, Surat during 1997 to 2003 had come in question in the year 2004 when he was arrested by the CBI for an offence of having offered illegal gratification to one of its Officers, namely, Shri R.K. Das, who was the CBI‟s Investigating officer in a case of alleged acquisition of a huge amount of Rs.5.28 Crore by the applicant by showing trading in diamonds by his wife Smt. Vandana Goel in partnership with one 9 OA 3163/2016 Item No.17 /C-1 Shri Anil Jain through a firm, namely, M/s V.B. Exports Mumbai. Learned counsel further contended that the premature retirement of the applicant with immediate effect by providing three months‟ pay and allowances is in conformity with the provisions of FR 56
(j) which provides that: -
"Notwithstanding anything contained in this Rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Govt. Servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice".
15. Respondents further contended that the DoPT, in para 6 of its OM dated 21/03/2014 issued vide P. No. 25013/01/2013- Estt.A-IV, states: -
"The Supreme Court had not only upheld the validity of FR 56(j) but also held that no Show Cause Notice needs to be issued to any Govt. Servant before a notice of retirement is issued to him under the aforesaid provisions."
16. It is stated by the learned counsel for the respondents that the impugned order no.27/2016 dated 8.03.2016 is in conformity with the provisions of FR 56 (j) as well as the prevalent instructions /guidelines issued by the Government on the subject from time to time and the said order has been passed in public interest and without any malafide motive. Even the Representation Committee noted that the decision had been taken by the Committee in a reasonable manner strictly in public interest and without any prejudice or arbitrariness. He, therefore, prayed that present OA may be dismissed being devoid of merit. 10 OA 3163/2016 Item No.17 /C-1
17. The learned counsel for the respondents has placed reliance on the order dated 17.10.2024 passed by the Hyderabad Bench of the Tribunal in OA No.020/00446/2020, 305/2020 & 650/2020. He also placed reliance on the following judgments of the Hon‟ble Supreme Court as well as the OMs of the DOP&T; (a) Shyam Lal vs. The State of Uttar Pradesh and Ors. AIR 1954 SC 369, (b) Union of India vs. J.N. Sinha and Ors. (1970) 2 SCC 458, (c) Union of India and Ors. vs. M.E. Reddy and Ors. (1980) 2 SCC 15, (d) S. Ramachandra Raju vs. State of Orissa, (1994) Supp. (3) SCC 424, (e) Vinod Kumar vs. GNCTD & Ors. OA No. 3302/2019, (f) Arun Kumar Gupta vs. State of Jharkhand & Ors. AIR 2020 SC 1175, (g) Parbodh Sagar vs. Punjab State Electricity Board and Ors. (2000) 5 SCC 630,
(h) K. Kandaswamy vs. Union of India (1995) 6 SCC 162, (i) Pyare Mohan Lal vs. State of Jharkhand and Ors. AIR 2010 SC 3753, (j) Nisha Priya Bhatia vs. Union of India & Ors. C.A. No. 365 of 2020, (k) Ram Murti Yadav vs. State of Uttar Pradesh & Ors. (2020) 1 SCC 801, (l) Baikunthanath Das & Ors. vs. Chief District Medal Officer, Baripada & Ors. (1992) 2 SCC 299, (m) Dalpat Abasaheb Solunke and Ors. vs. Dr. B.S. Mahajan and Ors. (1990) 1 SCC 305, (n) Ashok Kumar Aggarwal vs. UOI & Ors. W.P. No. 11177/2020, (o) Alok Kumar Mitra vs. UOI OA No. 332/450/2019, (p) Ajay Kumar Bassi vs. CBI OA No. 3107/2022, (q) The DOP&T‟s OM dated 07.08.1985 [56 (j), (r) 11 OA 3163/2016 Item No.17 /C-1 The DOP&T‟s OM dated 21.03.2014, (s) The DOP&T‟s OM dated 11.09.2015, (t) The OM dated 05.05.1966 of Ministry of Home Affairs; and (u) The DOP&T‟s OM dated 21.06.2013.
18. To rebut the contentions of the respondents, learned counsel for the applicant filed rejoinder, reiterating his stand taken in the Original Application and stated that the respondents have heavily relied on the FIR against the applicant in the alleged Disproportionate Assets case R.C. No 25(A)/2004, wherein, admittedly after almost a decade long investigation, CBI could not find sufficient evidence due to which it was compelled to file a closure report and on 21.12.2010, Special Judge CBI Court, Ahmedabad concluded the following:
"... The concerned Investigation Officer Mr. Indrajit Yashwant Bedi, P.I. of the CBI who had filed the present Closure Report has tendered his affidavit in support of this matter on oath and stated in his affidavit that there is no oral and documentary evidence to prove the case in the present matter He has requested that it can safely be referred that no criminal activity/intent can be substantiated against all accused of the above case I have perused 112 documents and the statements of 83 witnesses which were placed along with this Closure Report and the affidavit of the concerned 1.0. of this matter who had filed the Closure Report. I am satisfied with the Closure Report and the submissions of Sh. S.M. Parmar PP for CBI It is fit case to close the case of RC. No. 25(A)/2004 against the accused...
19. He further stated that the respondents have clearly stated in their Counter-Affidavit that no case of Disproportionate Assets could be made out by CBI, yet respondents have relied upon the allegations contained in the FIR filed in the said case in which applicant has been completely exonerated from all charges. The learned counsel for applicant stated that the respondents are 12 OA 3163/2016 Item No.17 /C-1 apparently also relying upon R.C. No. 23(A)/2004-GNR which was filed against the applicant for allegedly bribing CBI Investigating Officer Sh. R.K. Das to obtain favour in the DA case. It is submitted that the said case is sub-judice and the applicant must be presumed innocent until proven guilty. Learned counsel further stated that whether the applicant is a victim of extortion or he has committed offence of bribery is yet to be decided by court, therefore, the respondents cannot presume him guilty in advance before the conclusion of the Trial in the said case and drawing of conclusion on the story of prosecution without putting it through the test of trial is not fair. It is contended that the respondents cannot decide their own case, especially when the Court has decided otherwise in favour of the Applicant, and that the said feeble attempt of respondents is only to prejudice the mind of this Tribunal as has been the case even while taking approval of the Competent Authority for compulsory retirement under 56(j). It is further stated that the respondents have also relied upon the initiation of penalty proceedings against the applicant vide OM dated 16.09.2011. The learned counsel also stated that the Respondents in their Counter-Affidavit admitted that on reconsideration and recommendations of CBEC, the CVC vide OM No.004/CEX/127/145201 dated 22.10.2012 dropped the 13 OA 3163/2016 Item No.17 /C-1 proposed proceedings. The advice tendered by CVC reads as follows: -
"The nature of lapse may be small indiscretion on the part of officer and it cannot perhaps be equated with the running of business for which substantive & deeper involvement would appear to be necessary. Despite detailed & extensive investigation, CBI failed to find anything against the officer for which investigation was being carried out. The officer was suspended twice in connection with the said case."
20. Perusal of the above advice would reveal that even the CVC supported the case of the applicant, whereas, the respondents have time and again relied on the suspicions on which the said enquiries were built, rather than the conclusions that were derived at in the said enquiries by the concerned authorities/courts. It is stated that the Review Committee action is in contravention of OM No. 25013/01/2013 Estt. (A) dated 21.03.2014 and is time barred.
21. The learned counsel for the applicant further stated that the Review Committee had been constituted vide Office Order No. 08/2016 dated 01.02.2016. The said Office Order mandated the Committee to follow the criteria laid down in the OM No. 25013/01/2013 Estt. (A) dated 21.03.2014. It has been specifically mentioned in para 4 of OM dated 21.3.2014 that "In order to ensure that power vested in appropriate authority are exercised fairly & impartially and not Arbitrarily following procedure & guidelines have been provided for reviewing cases of Govt. employees covered under aforesaid Rules."
14OA 3163/2016 Item No.17 /C-1
22. Para 4 of the said OM dated 21.03.2014 mandates that review under FR 56(j) has to be done six months prior to the Govt. Servant attaining the age of 50 years. The applicant attained the age of 50 years on 15.04.2015. In terms of the said OM, the review of the applicant should have been done during October to December 2014. However, the said review was done on 16.02.2016, and therefore, the impugned order is in complete contravention of the OM dated 21.03.2014, is time barred and arbitrary, hence needs to be quashed.
23. Learned counsel for the applicant stated that the applicant was fit to be promoted as he secured "very Good" and above grading in all ACR/APARs.
24. The Learned counsel submitted that the Review Committee report noted that CBI registered Preliminary Enquiry on the allegation that the applicant, while posted as Deputy Commissioner at Surat, where he was required to deal with various diamond manufacturers/traders amassed enormous wealth by indulging in corrupt practices. The said allegation is stated to be completely false as he was working in Central Excise at Surat and Central Excise has nothing to do with the business of diamonds and he was never officially required to deal with any diamond manufacturers/traders. The said fact ought to have been known to the Review Committee Members who deliberately made these false allegations in the Review Committee Report. 15 OA 3163/2016 Item No.17 /C-1
25. It is next stated that the allegation in FIR registered in DA case was that he obtained pecuniary advantage from the people who could have official connection with the applicant. A private person namely Mr. Anil Jain was dealing in export of diamonds and his dealing had connections with Customs Department, and the applicant could be posted to said department in future. It is submitted that the investigating agency may investigate this allegation/FIR for a hundred years but it will fail for the obvious reason that one cannot find any evidence for an offence yet to be committed. Arguably, the offence, if at all, could have been committed only when Applicant would have been posted to Customs in future. However, the applicant had never worked in Customs. This fact should have been known to Review Committee, as even a novice can sense that CBI asserted jurisdiction in DA case with ulterior motives. Furthermore, the bribe case was registered against the Applicant on 26.09.2004 while DA case was registered on 02.10.2004 against applicant, his wife and Mr. Anil Jain. It is stated that the sole purpose of involving Applicant's wife in false DA case was to stop the applicant against the wrongs done by CBI. He further stated that during the course of trial, the CBI Court asked CBI to file affidavit that they had not drawn any panchnama on 05.09.2004. CBI filed affidavit dated 04.10.2015 stating that no panchnama had been filed. It is contended that the said affidavit was completely false as the CBI had in fact drawn 16 OA 3163/2016 Item No.17 /C-1 panchnama on 05.09.2004 illegally without an FIR and concealed it.
26. It is further stated by the learned counsel for applicant that the applicant was on a non-sensitive charge since 2000. In applicant's IPR 2015, he had written to the respondent department that he did not want any sensitive/important charge till his retirement in 2025 so as to remain away from any suspicion. The said IPR 2015 was also given to Review Committee Member who she was Chief Commissioner (TAR), supervisory officer of the applicant, and therefore it was in the knowledge of the Committee. The learned counsel further submitted that the Government may have the power to retire a Government Servant under FR 56(j), however, it has to be exercised within the four corners of law as per the procedure prescribed and as per the criteria laid down, especially in cases where no notice is given to the affected Govt. servant to defend himself against the allegations. The learned counsel submitted that the facts which have already been disproved or facts involving disputed questions of fact yet to be decided by a Court of law cannot be used to retire a Government Servant under FR 56 (j) and power of retirement under the said provision is to be exercised judiciously. He further pointed out that there are other officers in the department, namely, Mr. Bharat Asharsa, etc. in whose cases minor penalty 17 OA 3163/2016 Item No.17 /C-1 has been imposed and the officers have been allowed to continue and after the penalty is complete, they have even been promoted.
27. In support of his claim, the learned counsel for the applicant has filed written submission and also a compilation of judgments/orders and cited the following decisions upon which he has placed reliance; (i) State of Punjab Vs. Dewan Chunni Lal. 1970 (1) SCC 479; (ii) Swami Saran Saksena Vs. State of Uttar Pradesh. 1980 (1) SCC 12; (iii) Baldev Raj Chadha Vs. Union of India, 1980 (4) SCC 321; (iv). D. Ramaswami Vs. State of Tamil Nadu. 1982 (1) SCC 510; (v) Brij Mohan Singh Chopra Vs. State of Punjab, 1987 (2) SCC 188; (vi) M. S. Bindra Vs. Union of India. 1998 (7) SCC 310; (vii) State of Gujrat Vs. Suryakant Chunilal Shah. 1999 (1) SCC 529; (viii) State of Gujrat Vs. Umedbhai M. Patel. 2001 (3) SCC 314;
(ix) Brij Bihari Lal Agarwal Vs. Hon'ble High Court of Madhya Pradesh, 1981 SCC 490; (x) J.D. Shrivastava Vs. State of Madhya Pradesh and Ors., 1984 2 SCC 8; (xi) Nand Kumar Verma Vs. State of Jharkhand 2012 (3) SCC 580;
(xii) Rajesh Gupta Vs. State of Jammu & Kashmir and Ors. 2012 (3) 514; (xiii) Mukhtar Ahmad Vs. State of Uttar Pradesh. Service Single No. 22786 of 2017 passed by Hon'ble Allahabad High Court; (xiv) Babulal Agrawal Vs. Union of India & Anr. Order dated 05.04.2018 bearing O.A. No. 2208/2017. Principal Bench. Central Administrative Tribunal; 18 OA 3163/2016 Item No.17 /C-1
(xv) Hawa Singh Bhambu Vs. State of Haryana & Anr.. order dated 17.09.2020 bearing L.P.A. No. 593 of 2020 passed by Hon'ble High Court of Punjab and Haryana High Court; (xvi) Gurjinder Pal Singh Vs Home Affairs and Another Order dated 9 30.04.2024 bearing O.A. No. 2440/2023 passed by Central Administrative Tribunal;
28. The learned counsel further placed reliance on the judgment dated 22.11.2023 of Hon‟ble Supreme Court in Civil Appeal No. 9454 of 2023 in case of Union of India vs. Ashok Kumar Aggarwal; and the judgment dated 23.08.2024 of the Hon‟ble High Court of Delhi in W.P.(C) 10703/2024 & CM Appl. 44045- 47/2024 in Union of India vs. Gurjinder Pal Singh & Anr.
29. We have heard learned counsels for the parties carefully and perused the pleadings available on records thoroughly. ANALYSIS
30. It is admitted fact that the Applicant is an officer of the Indian Customs and Central Excise Service. In the year 2001, CBI started investigation into the alleged acquisition of business profit by showing trading in diamonds by applicant‟s wife Smt. Vandana Goel in partnership with one Shri Anil Jain through a firm M/s V.B. Exports, Mumbai. An FIR No. RC-23(A)/2004-GNR was registered against the applicant on 26.09.2004 for the alleged offence of offering illegal gratification to the investigating officer, 19 OA 3163/2016 Item No.17 /C-1 namely, Shri R.K. Das. The Review Committee considered the case of the applicant in a detailed manner as per the law laid down on the subject. Vide order dated 18.03.2016 (impugned order), he was compulsorily retired in public interest. The said order was received by the him on 23.03.2016. The representations of the applicant were rejected by the Representation Committee vide order dated 08.09.2016.
31. We find that the Review Committee has examined the relevant material relating to the service records of the applicant including the APARs for the period 2000-2001 to 2014-15, IPRs filed by the Officer, material on the integrity and also made discreet enquiries on the general reputation of the Officer. The applicant has attained the age of 50 years on 15.04.2015. The Review Committee mentioned that the applicant had been placed in the Agreed List for the years 2001-2002, 2002-2003 to 2006- 2007. It was particularly noted by the said Committee that applicant had been continuously placed in the ODI Lists for the years from 2007-08 to 2015-16. The Review Committee observed that the Officer's personal conduct and integrity as Deputy Commissioner of Central Excise, Surat, during 1997 to 2003, had come in question in the year 2004 when he was arrested by the CBI for an offence of having offered and paid illegal gratification to one of its Officers namely, Shri R.K. Das. The said Shri Das was the CBI's Investigating Officer in a case of alleged acquisition of huge amount of Rs 5.28 Crores by the applicant by showing 20 OA 3163/2016 Item No.17 /C-1 trading in diamonds by his wife Smt. Vandana Goel who is MBBS Doctor from Sirsa Haryana, in partnership with one Shri Anil Jain through a firm M/s V.B. Exports, Mumbai. For facility of reference, the relevant observations of the Review Committee are as follows: -
"4.1 The CBI registered a Preliminary Enquiry PE 2(A)-GNR dated 23.06.2004 against Shri Umesh Goel. It was alleged that Shri Umesh Goel had, while posted as Deputy Commissioner at Surat, amassed enormous wealth by indulging in corrupt practices. He was officially required to deal with various diamond manufacturers/traders engaged in export-import business and in the course of his official dealings with them had developed dubious relations with some of them. It was further alleged that using his clout with these diamond manufacturers/traders, he had converted his ill-gotten wealth into legitimate family income by showing trading in diamonds by his wife, Smt Vandana Goel, in partnership with one Shri Anil Jain through a firm M/s V.B. Exports, Mumbai. The firm is alleged to have made a profit of Rs 5 Crore without investing even a single rupee within a period of just 57 days from 04.02.2000 to 31.03.2000. Shri Anil Jain was already in the business of diamond exports as Director of another diamond trading firm. The said PE was later converted by the CBI into a Regular Complaint RC 25(A)/2004-GNR on 02.10.2004. Shri Umesh Goel was arrested by the CBI in connection with this case on 22.01.2010 and remained in custody till 27.01.2010. He was placed under Suspension on 26.02.2010.
4.2. The CBI in its Report dated 27.09.2010 informed the CVO, CBEC that it was not able to gather enough evidence to substantiate allegations in the FIR, hence, no case of disproportionate assets could be made out against Shri Umesh Goel. The CBI, however, recommended major penalty proceedings against Shri Umesh Goel for engaging directly or indirectly in trade or business of his wife without previous sanction of the Govt. in as much as he directed one Shri Janak Thakkar, employee of a firm, M/S Colourtax, Surat to propose her name for opening a bank account and carry out most of the transactions in her account. The CVC, vide its OM No. 004/CEX/127/145201 dated 16.09.2011, advised initiation of major penalty proceedings against Shri Umesh Goel. However, later on reconsideration, on the recommendations of CBEC, the CVC, vide its OM No 004/CEX/127/191467 dated 22.10.2012 advised to drop the proposed proceedings.
4.3. The CBI filed a closure report with the Special Judge, Ahmedabad on 15.11.2010. The closure report was accepted by the Special Judge on 21.12.2010. The case was closed by the Department on 18.06.2013
5. The Review Committee notes that Shri Umesh Goel had tried to influence the course of CBI investigation by offering bribe of Rs.2 lakhs to the CBI Investigating Officer, Shri R.K. Das. He was caught 21 OA 3163/2016 Item No.17 /C-1 red handed in the presence of witnesses at the residential premises of Shri R.K. Das on 26.09 2004. A Regular Complaint RC-23(A)(2004)- GNR dated 26.09.2004 was registered. He was arrested on 26.09.2004 and was placed under suspension on 04.10.2004 with effect from 26.09.2004. His suspension was revoked on 31.10.2007. The CBI filed a Charge Sheet against him in the Court of Special Judge, Ahmedabad on 27.09.2005. The efforts made by Shri Umesh Goel for arranging the bribe amount and to contact the Investigating Officer of CBI, Shri R.K Das as also his movements are well documented in the form of recoveries and statements and audio/video recordings done during the proceedings by the CBI are all a part of the Charge sheet. An amount of Rs. 6 lakhs, out of which Rs. 2 lakhs was allegedly offered to the Investigating Officer, was in fact dispatched from Surat to Ahmedabad by one Shri Mahesh Kabootarwala, another employee of M/s Colourtax. In this case, the matter is pending trial in the competent court of CBI.
6 The Review Committee has very carefully examined the facts and circumstances of these cases in the light of the instructions issued by the DoP&T, 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.
7 The Review Committee notes that though the CBI was not able to gather sufficient evidence to substantiate the allegations in the FIR registered regarding laundering of ill-gotten wealth and that no case of disproportionate assets could be made out in the case registered under Regular Complaint RC 25(A)/2004-GNR on 02.10.2004, whose material facts are discussed at para 4 above, and that the evidences were not sufficient to prosecute him, yet the very fact that Shri Umesh Goel tried to influence the investigations of CBI by offering illegal gratification to the Investigating Officer of the CBI is clearly suggestive of the personal interest of Shri Goel in the affairs of the partnership firm wherein his wife was a partner. The extent of involvement of Shri Umesh Goel in the business of his wife is clear from the fact that he allegedly tried to influence the course of investigation against her firm and offered bribe of Rs 2,00,000/- to the Investigating Officer of the CBI. The CBI had recommended major penalty proceedings against Shri Umesh Goel for engaging directly or indirectly in trade or business of his wife without previous sanction of the Govt. The Review Committee is of the considered opinion that acceptance of the CVC's advise to drop disciplinary proceedings as also closure of the CBI case by the concerned CBI Court for want of adequate evidence to prosecute the Officer may have been the relevant factors for the purposes of initiating disciplinary proceedings and prosecution in the Court, however, for the purposes of Rule 56(j), the attendant facts and circumstances, as narrated at para 4 above are sufficient for recommending action of compulsory retirement as this material suffices to conclude that the integrity of the Officer is in serious doubt. The act of bribing the CBI Officer, as discussed at para 5 above, fully reinforces the Review Committee's view that Shri Umesh Goel's integrity is in serious doubt
8. The Review Committee notes that the Apex Court, in its judgement in the case of S. Ramachandra Raju Vs. State of Orissa reported as (1994) 3 SCC 424 has held that "The Officer would live by reputation built around him. In an appropriate case, there may not be sufficient 22 OA 3163/2016 Item No.17 /C-1 evidence to take punitive 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. "The material at paras 4 and 5 above would show that the ratio of the aforesaid Supreme Court judgement is fully applicable to Shri Umesh Goel
9. The Review Committee has already noted at para 2 above, the number of years in which Shri Umesh Goel has been continuously placed in the Agreed & ODI Lists. The Review Committee is fully aware that the Agreed List of Officers is drawn by the CVO in consultation with the CBI at the appropriate levels. The inputs available with CBI in respect of the Officers are shared with the Department which are primarily on the professional conduct having adverse implications on the integrity of the Officer. As per instructions of the CVC contained in clause (vii) of para 2.13 of the Vigilance Manual of the CVC, the Agreed List includes the names of Officers against whose honesty or integrity there are complaints, doubts or suspicions. As already noted by the Review Committee, at para 2 above, Shri Umesh Goel, Joint Commissioner has consistently figured in the Agreed List from 2001-02 onwards. His figuring in the Agreed list for so many years casts serious doubt on his integrity.
The grave nature of the case coupled with his figuring in the Agreed List for so many years shows a consistency of pattern of the integrity of Shri Umesh Goel being doubtful over a span of many years.
10. The Review Committee has also very closely perused the annual performances of Shri Goel, as contained in the ACR/APARs from the 2000-2001 onwards. It is seen that no report was written for the period 03/08/2001-31/03/2002, 2002-2003, 26/09/2004 to 31/03/2005, 2005-2006, 2006-2007, 01/04/2007- 31/10/2007 and 01/04/2001 (No report certificates are on record). The Committee also finds that the Reviewing Officer in the year 2010-2011, when Shri Umesh Goel was posted in the Office of the Commissioner, Tax Arrear Recovery, Delhi, has recorded that the performance of the Officer was Average. Similarly for the year 2013-2014 also, the Reviewing Officer has made certain observations which reflect negatively on the competency and efficiency of the Officer. On the basis of discreet enquiry, the Committee notes that the officer has also not shown requisite commitment to work.
11. As per the provisions of Rule 56(j), the review of the Officers has to be both on his professional competence and on the touchstone of professional integrity. The Review Committee is of the considered opinion that Shri Umesh Goel has failed both on his integrity and competence as is evident from the facts narrated above. The Review Committee also refers to yet another judgement of the Hon'ble Supreme Court in the case of State of UP And Others Vs Vijay Kumar Jain, Appeal (Civil) 2083 of 2002 wherein it has been held by the Apex Court that "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."
23OA 3163/2016 Item No.17 /C-1
32. The Representation Committee opined that the Review Committee, keeping in view the various factors enumerated above including the integrity and competency factors, was of the view that continuance of the applicant in service will be detrimental to Public Interest and found this to be a fit case for retirement by the Government under the provisions of FR 56(j) and recommended accordingly order in his behalf was issued on 08.09.2016. For facility of reference, the relevant portion of recommendation of Review Committee is as follows: -
"Whereas, the Representation Committee examined in details the stand taken by the Internal Committee and the Review Committee, for recommending pre-mature retirement of Sh Umesh Kumar Goel, in public interest:
Whereas, Representation Committee in the minutes of its meeting held on 25.07 2016 recorded that after going through the material placed before it by the Department and the representation from Shri Umesh Kumar Goel, the Committee was of the view that in his representation the officer has not raised any new facts/aspects and the grounds raised by him were not substantiated whereas the Review Committee had laid out very clear and cogent reasons to substantiate the grounds on which the decision to pre maturely retire Shri Umesh Kumar Goel, Joint Commissioner was taken. The facts on record placed by the Department also clearly brought out that the decision had been taken in a reasoned manner strictly in public interest and without any prejudice or arbitrariness. Therefore, the Representation Committee held that there was no merit in the representation of Shri Umesh Kumar Goel for reconsidering the decision of the Appropriate Authority to prematurely retire him in public interest. Considering the overall facts and circumstances involved in his case, the Representation Committee was of the considered view that action under FR 56(j) is clearly justified in respect of Shri Umesh Kumar Goel, Joint Commissioner of Customs & Central Excise (Retd.) Now, therefore, the Appropriate Authority rejects the representation dated 23.03.2016, 04.04.2016, 12.04.2016 & 17.05.2016 against Order No 27/2016 dated 18.03.2016 of Shri Umesh Kumar Goel being devoid of any merit.
[Jai Prakash Sharma) Under Secretary to the Government of India Sh. Umesh Kumar Goel Joint Commissioner of Customs & Central Excise (Retd.) 24 OA 3163/2016 Item No.17 /C-1 C/o Jhunthra Petrocity, Dabwali Road, Sirsa-125055."
33. After detailed examination of pleading, judicial pronouncements relied upon by the parties, we find that law relating to compulsory retirement has crystallized into definite principles which are enunciated by the Hon‟ble Supreme Court in the case of State of Gujarat Vs. Umed Bhai M. Patel. (supra). These principles make it amply clear that when the service of a public servant is no longer useful to the general administration, officer can be compulsorily retired for the sake of public interest. The order of compulsory retirement is not to be treated as punishment under Article 311 of the Constitution of India. The order of compulsory retirement can be passed after having due regard to the entire service record of the officer. Adverse entry in the ACR/APAR shall be taken note of and given due weightage in passing such order. Uncommunicated entries in the confidential record can also be taken into consideration. The order under FR 56 (j) should not be passed as a short cut to avoid departmental enquiry when such course is more desirable. Compulsory retirement should not be imposed as a punitive measure. In catena of judicial pronouncements, it has been laid down that it is not enough that the doubt on the integrity of the employee fringes on a mere hunch. Doubt should be of such a nature as would reasonable and consciously be entertainable by a reasonable 25 OA 3163/2016 Item No.17 /C-1 man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. It is relevant to mention that the applicant is compulsorily retired in public interest on the ground of doubtful integrity. His figuring in the Agreed list for so many years casts serious doubt on his integrity. The grave nature of the case coupled with his figuring in the Agreed List for so many years shows a consistency of pattern of the integrity of Shri Umesh Goel being doubtful over a span of many years. To keep an officer under the category of „Doubtful Integrity‟ for such a long period of time, despite there being review at the higher levels by the respondents to finalize such lists, are sufficient reasons to arrive at decision to compulsorily retire the officer under the provision of FR 56 (j). In view of this position, we are unable to accept the contentions of the applicant that such lists are drawn in routine manner and once a name officer find a mention in the said lists, his name remains there. Reliance has been placed by the applicant on the decision of the Hon‟ble Supreme Court in the matter of State of Gujarat & Anrs. Vs. Surya Kant Chunni Lal Shah (Supra) wherein DoPT OM dated 21.03.2014 and observation contained therein were examined. In this matter, it could be seen that applicant figured in the Agreed list for so many years which casts serious doubt on his integrity. The grave 26 OA 3163/2016 Item No.17 /C-1 nature of the case coupled with his figuring in the Agreed List for so many years shows a consistency of pattern of the integrity of the applicant being doubtful over a span of many years. Such inclusion cannot be said to be without any basis. Further, the applicant has not been compulsorily retired under FR 56(j) on the reasons of doubtful integrity in public interest. It is also observed that such decision has been arrived at by the competent authority after going through the complete service record of the applicant. It is also relevant in the matter that an FIR No. RC-23(A)/2004-GNR was registered against the applicant on 26.09.2004 for the alleged offence of offering illegal gratification to the investigating officer of CBI who was investigating case against him namely; Shri R.K. Das. We tend to agree with the pleadings of respondents.
34. Applicant placed reliance on the judgement of Hon‟ble Supreme Court in the case of State of Punjab Vs. Dewan Chunni Lal 1970 (1) SCC 479 decided on 16.02.1970, however, the facts and circumstances in that case are not akin to the facts and circumstances in the instant case. Based on the overall service record of the applicant, respondents took a decision to invoke FR 56(j) on the applicant. The applicant was compulsorily retired under FR 56 (j) on 18.03.2016 on the grounds of integrity and competence in public interest. Further, in his prayers, applicant does not allege any malafide / bias on the part of respondents. As 27 OA 3163/2016 Item No.17 /C-1 the applicant will be entitled to all the benefits and acknowledging the principle that when the service of a public servant is no longer useful to the general administration, officer can be compulsorily retired for the sake of public interest, the order cannot be termed as punitive. The order dated 18.03.2016 is an order simplicitor and cannot be termed as punitive in nature as it does not cast any aspersion on the applicant not is construed as a short cut method.
35. As far as law laid down in the matter of State of Uttar Pradesh vs. Chandra Mohan Nigam & Ors. and Union of India vs. Chandra Mohan Nigam & Ors. is concerned, in the present case, the process of review under FR 56 (j) was initiated by the respondents and the applicant was compulsorily retired under the above provision based on the detailed scrutiny of material by the competent authorities on 18.03.2016 on already attaining age of 50 years. Hence, the law laid down in the above judgement is not attracted in this case.
36. In the case of MS Bindra vs. Union of India (supra), the issue of having sufficient material has been stressed. It has been stated that while evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently by those who were supervising him earlier. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is 28 OA 3163/2016 Item No.17 /C-1 justification to ram an officer with the label "doubtful integrity. In this case, we find that sufficient material was available with the respondents which have been deliberated at length before the competent authorities came to the decision to invoke FR 56 (j) on the applicant.
37. Applicant has also relied upon the judgement of Hon‟ble Supreme Court in the case of Nand Kumar Verma vs. State of Jharkhand & Ors., wherein relying upon the judgement in Swami Saran Saksena v. State of U.P., the order of Compulsory retirement was quashed which was found to be in sharp contradiction with his recent service performance and record. The Hon‟ble Court opined that greater importance is to be given to the opinion or remarks made by the immediate superior officer as to the functioning of the concerned judicial officer for the purpose of his compulsory retirement. The immediate superior is better placed to observe, analyse, scrutinize from close quarters and then, to comment upon his working, overall efficiency, and reputation. Also relying upon the case of Nawal Singh v. State of U.P., it was observed that reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis. We are of the view that the overall service record of the 29 OA 3163/2016 Item No.17 /C-1 applicant including the observations of the immediate superiors have been observed, analyzed, scrutinized from close quarters and only thereafter, the Review Committee has arrived at the conclusion to invoke the provisions of FR 56 (j) and while doing so they have kept in view his working, overall efficiency, and reputation and only after that has decided to compulsorily retire the applicant on the ground of doubtful integrity in public interest and not on the ground of ineffectiveness.
38. We are conscious of the fact that it is a settled law that the scope of Judicial Review is very limited in cases of compulsory retirement and it is permissible on the limited grounds such as non application of mind or malafide. The pre- requisites of due application of mind seem to be fulfilled as the decision has been reached in the aftermath of a series of discussions, exchanges and consultations between the organizations.
39. In the matter of Govt. of NCT of Delhi and Others Vs. Neeraj Kumar in W.P.(C) 10572/2023 decided on 24.10.2024, Hon‟ble High Court of Delhi while upholding the order of this Tribunal in the matter of imposition of Article 311(2) (b) wherein it was decided to hold inquiry before invoking the provisions Article 311 (2) (b) of the Constitution of India. This would not be applicable mutatis mutandis in this case. It is deemed necessary at this juncture, to state that the mere fact of non-prescription of 30 OA 3163/2016 Item No.17 /C-1 inquiry under the relevant Rule before making the order of compulsory retirement does not go against the constitutionality of the Rule. Additionally, the rule does not prohibit any inquiry and is in general line with the orders of compulsory retirement wherein the right of outgoing employee to participate in the process of formation of such decision is not envisaged in law, as the underlying basis of such action is broadly the larger public interest; and not any culpable conduct of the employee. In order to reach its own satisfaction, the authority is free to seek information from its own sources. The requirement is rather to enable the competent authority of the organization to satisfy itself in a subjective manner as regards the fitness of the case to invoke the rule. Therefore, the procedure cannot be shackled by the rigidity of the principles of natural justice in larger public interest in reference to the structure of the organisation in question, being a special rule dealing with specified cases.
40. An order of compulsory retirement on one hand causes no prejudice to the government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the Services. The employees should try to understand the true spirit behind the rule a which is not to penalize them but amounts just to a fruitful incident of the Service made in the larger interest of the country. Even if the employee feels that he has suffered, he should derive 31 OA 3163/2016 Item No.17 /C-1 sufficient solace and consolation from the fact that this his small contribution to his country, for every good cause claims its martyr. Validity of Rule 56(j) of Fundamental Rules has already been upheld by the Hon'ble the Supreme Court in T.G. Shivacharana Singh v. State of Mysore AIR. It has been held that a Government servant serving under the Union of India holds office at the pleasure of the President of India as provided under Article 310 of the Constitution of India. It has been held in the decision (supra) of Hon'ble the Supreme Court that compulsory retirement is bound to have some adverse effect on the Government servant who is compulsorily retired but the rule provides that such retirements can be made only after the officer attains a prescribed age. Compulsorily retired Government Servant does not lose any benefits earned by him till the date of retirement. The fundamental source of compulsorily retiring an employee of the Government is derived from "Doctrine of Pleasure which springs from Article 310 of the Constitution of India. It has been held by Hon'ble the Supreme Court that compulsory retirement under FR 56(j) do not stigmatise the outgoing officer or involve loss of benefits already earned by him and there is no element of punishment. Thus, the employee is not faced with any loss of benefits already earned. The rule does not result into a deprivation of the retired employee of any benefit whatsoever in lieu of such order of compulsory retirement and thus, attracts no stigma or any civil consequence to the retired 32 OA 3163/2016 Item No.17 /C-1 employee for his/her future. The invocation of this Rule, therefore, falls in sync with the second proposition in Shyam Lal [State of U.P. v. Shyam Lal Sharma], which looks down upon any loss of profits in a non-stigmatic order of compulsory retirement. Succinctly put, a compulsory retirement without anything more does not attract Article 311(2). To bring home the stated position of law, it is useful to refer to Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, and Union of India v. Dulal Dutt [Union of India v. Dulal Dutt.
41. Rule 56(j) of Fundamental Rules is an extension of "Doctrine of Pleasure"¸ If the employer - Union of India is 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. Looking to the Rule 56(j) of Fundamental Rules, from the very inception into the Government service till the age of 50 years there is enough and ample scope for the Government employee to improve his performance to prove is faithfulness and loyalty to the Government, to make his services necessary in the Government, to make his services useful to the Government for rest of the years of his service. Government is taking the work from honest hands and dishonest hands. Sometimes they are enthusiastic and sometimes they are lethargic. Sometimes there is combination of both, i.e., honest man may be lethargic and dishonest man may be 33 OA 3163/2016 Item No.17 /C-1 enthusiastic, but, all these employees for any reason whatsoever, sometimes because of even quashing of the charges against them, they have been continued into services, but, enough is enough. After a prescribed age of an employee, there is an assessment by the Government through Review Committee and if looking to the entire service record of the employee and looking to his performance and looking to his usefulness into the remaining services, if he is to be weeded out, the Union of India has all powers, jurisdiction and authority under Rule 56(j) of Fundamental Rules to make such employee compulsory retired, even if there is acquittal from some of the charges leveled against him by the Union of India.
42. The Hon'ble Supreme Court in the same context, in Union of India v. M.E. Reddy & Anr. 1980(2) SCC15 held that person compulsory retired by the employer after putting in sufficient numbers of years of service having qualified for full pension is neither a punishment nor a stigma. Further it was held that there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsory retired in in public interest, since they have almost reached the fag end of their career and their retirement would not cast any aspersion nor it entails any civil consequences. An order of compulsory retirement on one hand causes no prejudice to the government servant who is made to lead a restful life enjoying full 34 OA 3163/2016 Item No.17 /C-1 pensionary and other benefits and on the other gives a new animation and equanimity to the services.
43. It is mentioned by the respondents that the Committee also took note of the judgments of the Hon'ble Supreme Court in case of State of UP vs Vijay Kumar Jain ((2002) 3 SCC 641); and Shyam Lal vs State of UP (AIR 1954 SC 369) wherein It was held: -
"23. ... It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence of Note 1 to Article 465-A make it abundantly clear that an Imputation or charge is not in terms made a condition for the exercise of the power."
44. The respondents have mentioned that it was also in the knowledge of the Committee that the applicant was arrested by CBI in connection with aforesaid case on 22.1.2010 and remained in custody till 27.01.2010 and was placed under suspension on 26.02..2010. The CBI in its report dated 27.09.2010 informed the Chief Vigilance Officer (CVO), Central Board of Excise and Customs (CBEC) that it was not able to gather enough evidence to substantiate the allegations in the FIR and therefore no case of disproportionate of assets could be made out against the applicant. The Committee was also aware of the fact that the RC No. 23 (A) /2004-GNR was filed against the applicant for allegedly bribing CBI investigating officer Shri R.K.Dass to obtain favour in the disproportionate assets case. The Review 35 OA 3163/2016 Item No.17 /C-1 Committee was also made aware of the personal conduct and integrity of the applicant as Deputy Commissioner of Central Excise, Surat during 1997 to 2003 and his arrest by the CBI for the offence of offering illegal gratification to one its officers who was investigating against the applicant involving acquisition of huge amount of Rs. 5.28 Crores by the applicant by showing trading in diamonds by his wife Smt. Vandna Goel in partinership with one Shri Anil Jain through a firm M/s V.B. Exports, Mumbai.
45. Applicant has also relied upon the judgement of Hon‟ble Supreme Court Baldev Raj Chadha vs. Union of India wherein it was held that the order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. Legality depends on regard or the totality of material facts viewed in a holistic perspective. However, in the present case holistic perspective has been examined by the Review Committee and held that the applicant both on his professional competence and on the touchstone of professional integrity has failed. The 36 OA 3163/2016 Item No.17 /C-1 Committee has also kept in mind law laid down by the Hon‟ble Supreme Court on this matter.
46. Reliance is also placed by the applicant on the judgement of Hon‟ble Supreme Court in the matter of D. Ramaswami vs. State of Tamil Nandu 1982 (I) SCC 510, wherein, it was held that in the face of the promotion just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. Sometimes, past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past. In the present case, a due cognizance has been taken by the Review Committee even of the facts that The CBI on 27.09.2010 informed the CVO, of respondents Department that it was not able to gather enough evidence to substantiate allegations in the FIR, hence, no case of disproportionate assets could be made out against the applicant, however, the CBI recommended major penalty proceedings against him for engaging directly or indirectly in trade or business of his wife without previous sanction of the Govt. and directed one of the employee of a firm at Surat to propose her name for opening a bank account and carry out most of the transactions in her account.
47. The applicant also places reliance on the Judgement of Hon‟ble High Court of Madhya Pradesh in the matter of Brij 37 OA 3163/2016 Item No.17 /C-1 Bihari Lal Agarwal vs. Hon'ble High Court of Madhya Pradesh 1981 (I) SCC 490 and in the matter of JD Shrivastava vs. State of Madhya Pradesh, wherein, it was held that the confidential Reports including the confidential reports of recent years are of direct relevance and should be given more importance, it is relevant to mention that in this case, the Annual Performance Appraisal Reports of the applicant were also examined by the Review Committee and the Committee was of the view that the Reviewing Officer has made certain observations which reflect negatively on the competency and efficiency of the Officer. The Committee noted that the officer has also not shown requisite commitment to work.
48. Applicant has also relied upon the judgement of Hon‟ble High Court of Allahabad, dated 19.3.2018, in the matter of Mukhtar Ahmad vs. State of Uttar Pradesh Service Single No. 22786 of 2017, wherein, it was held that it is a lapse on the part of competent authorities to revoke suspension without conducting any departmental inquiry. Further, if the charges in suspension orders were not so serious wherein the departmental inquiry was not required then the suspension orders were punitive. Also, on the one hand the petitioner was suspended while on the other hand he has been awarded entry as 'Uttam' and by appreciating his performance, his integrity was certified for the said period. Therefore, the compulsory retirement was not held to be 38 OA 3163/2016 Item No.17 /C-1 simplicitor but punitive in nature, it is observed that facts and circumstances of the case in hand are different, hence the judgment (supra) is not applicable in this case.
49. Applicant also places reliance on the judgement dated 05.04.2018 of this Tribunal in the matter of Babulal Agrawal versus Union of India and Anr. In OA No. 2208/2017, wherein, it has been mentioned that FR 56(j) was imposed on the applicant on the mentioned facts that there is grave doubt on the integrity of the officer and no other ground was mentioned by the Review Committee and the said Committee merely relied upon the FIRs and vague allegations and no other material. The applicant therein was considered for review on completion of 25 years of service and on attaining 50 years of age by the first review committee and retained in service, cannot be subjected to second review in absence of any exceptional circumstances, and for reasons to be recorded. It was held that the recommendations of the second review committee, apart from being impermissible, also suffer from the vice of arbitrariness. The review committee‟s recommendations and consequential order of compulsory retirement also stand vitiated. The order of compulsory retirement was held to be punitive in nature and is not sustainable in law. It is relevant to point out the criteria laid down in the matter of State of Gujarat v Umedbhai M. Patel (supra), the Hon‟ble Supreme Court held as under:
39OA 3163/2016
Item No.17 /C-1 "11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarized thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even 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."
50. We are of the view that the respondents have considered the laid down parameters and taken cognizance of attendant circumstances before arriving at the decision of imposition of FR 56(j) in this matter as per the law laid down by the Hon‟ble Supreme Court and the order dated 18.03.2016 of the Review Committee effectively delve in the matter.
51. As observed by the Hon‟ble Supreme Court in the matter of Rafiq vs. State of U.P., (1980) 4 SCC 262, the judgments relied upon by the applicant cannot be suo moto made applicable to the present case, 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."40 OA 3163/2016
Item No.17 /C-1 52 The respondents‟ places reliance on the judgements / orders of the Hon‟ble Courts and other competent authorities on the subject matter of 56(j). For facility of reference, the relevant portions of the relied upon judgements are mentioned herein below: -
(i) In the matter of K. Kandasamy Vs. Union of India, in Civil Appeal No. 8336, (1995) 6 SCC 162, decided on 01.09.1995, the Hon‟ble Supreme Court held: -
"9. While exercising the power under Rule 56 (j) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The Government is given power to energise its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service, when the appropriate authority forms bona fide opinion that compulsory retirement of the Government employee is in the public interest, court would not interfere with the order. In S. Ramachandra Raju vs. State of Orissa [(1994) 3 SCC 424], a Bench of this Court to which one of us (K. Ramaswamy, J.) was a member, considered the entire case law and held that "the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood needs to be removed to augment efficiency. Integrity in public service needs to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. 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. The entire service record or character rolls or confidential reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the appropriate authority. On consideration of the totality of the facts and circumstances alone; the Government should form the opinion that the Government officer needs to be compulsorily retired from service. Therefore, the entire record more particularly, the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government officer."41 OA 3163/2016
Item No.17 /C-1
10. Higher the ladder the officer scales in the echelons of service, greater should be the transparency of integrity, honesty, character and dedication to duty. Work culture and self- discipline augment his experience. Security of service gives fillip to accelerate assiduity to stay in line and measure up to the expected standards of efficiency by the Government employee. Thereby, they ultimately aid to achieve excellence in public service. The security of service provided by Article 311 of the Constitution and the statutory rules made under proviso to Article 309 would thus ensure to remove deficiency and incompetence and augment efficiency of public administration. The rights - constitutional or statutory - carry with them corollary duty to maintain efficiency, integrity and dedication to public service. Unfortunately, the latter is being overlooked and neglected and the former unduly gets emphasised. The appropriate Government or the authority would, therefore, need to consider the totality of the facts and circumstances appropriate in each case and would form the opinion whether compulsory retirement of a Government employee would be in the public interest. The opinion must be based on the material on record; otherwise it would amount to arbitrary or colourable exercise of power.
11. Considered from this perspective and the material on record, we are of the considered view that the decision taken by the Government of India cannot be held to be arbitrary, unjustified or based on no evidence. It is made clear that our observations may not be construed as any finding on the alleged disproportionate assets of the appellant. We are informed that a criminal case is pending trial and the criminal Court would decide the case without in any way getting influenced by any of the observations made by us.
(ii) In the matter of Pyare Mohan Lal vs. State of Jharkhand and Ors, AIR 2010 SC 3753 Page 63, the Hon‟ble Supreme Court held: -
"8. In Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr., AIR 1992 SC 1020, this Court has laid down certain criteria for the Courts, on which it can interfere with an order of compulsory retirement and they include mala fides, if the order is based on no evidence, or if the order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e. if it is found to be a perverse order. The Court held 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.42 OA 3163/2016
Item No.17 /C-1
(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 the Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary- in the sense that no reasonable person would form the requisite opinion on the given material : in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." (Emphasis added).
9. Similar view has been reiterated by this Court in Posts and Telegraphs Board & Ors. Vs. C.S.N. Murthy, AIR 1992 SC 1368; Sukhdeo Vs. Commissioner Amravati Division, Amravati & Anr., (1996) 5 SCC 103; I.K. Mishra Vs. Union of India & Ors., AIR 1997 SC 3740; M.S. Bindra Vs. Union of India & Ors., AIR 1998 SC 3058; and Rajat Baran Roy & Ors. Vs. State of West Bengal & Ors., AIR 1999 SC 1661. This Court observed that there was a very limited scope of judicial review in a case of compulsory retirement and it was permissible only on the grounds of non-application of mind; mala fides; or want of material particulars. Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest.
10. In State of Gujarat & Anr. Vs. Suryakant Chunilal Shah, (1999) 1 SCC 529, this Court held that while considering the case of an employee for compulsory retirement, public interest is of paramount importance. The dishonest, corrupt and dead-wood deserve to be dispensed with. How efficient and honest an employee is, is to be assessed on the basis of the material on record, which may also be ascertained from confidential reports. However, there must be some tangible material against the employee warranting his compulsory retirement.
11. In State of U.P. & Anr. Vs. Bihari Lal, AIR 1995 SC 1161, this Court held that if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and 43 OA 3163/2016 Item No.17 /C-1 judicial review of such order is permissible only on limited grounds. The Court further held that:
".....What is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service."
12. In State of U.P. & Ors. Vs. Vijay Kumar Jain, AIR 2002 SC 1345, this Court while dealing with the issue observed as under:
"Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13-6-1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of the order of compulsory retirement does not mean that vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out, merely it is relatable to 11th or 12th year of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and the said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the Government while considering a case for compulsory retirement of a government servant. (Emphasis added)
13. In Jugal Chandra Saikia Vs. State of Assam & Anr., AIR 2003 SC 1362, this Court held that where the screening committee is consisting of responsible officers of the State and they have examined/assessed the entire service record and formed the opinion objectively as to whether any employee is fit to be retained in service or not, in the absence of any allegation of mala fides, there is no scope of a judicial review against such an order.
19. In State of Punjab Vs. Dewan Chuni Lal, AIR 1970 SC 2086, a two-Judge Bench of this Court held that adverse entries regarding the dishonesty and inefficiency of the government employee in his ACRs have to be ignored if, subsequent to recording of the same, he had been allowed to cross the efficiency bar, as it would mean that while permitting him to cross the efficiency bar such entries had been considered and were not found of serious nature for the purpose of crossing the efficiency bar.
20. Similarly, a two-Judge Bench of this Court in Baidyanath Mahapatra Vs. State of Orissa & Anr., AIR 1989 SC 2218, had taken a similar view on the issue observing that adverse entries awarded to the employee in the remote past lost significance in view of the fact that he had subsequently been promoted to the 44 OA 3163/2016 Item No.17 /C-1 higher post, for the reason that while considering the case for promotion he had been found to possess eligibility and suitability and if such entry did not reflect deficiency in his work and conduct for the purpose of promotion, it would be difficult to comprehend how such an adverse entry could be pressed into service for retiring him compulsorily. When a government servant is promoted to higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and remain on record as part of past history.
This view has been adopted by this Court in Baikuntha Nath Das (supra).
21. However, a three-Judge Bench of this Court in State of Orissa & Ors. Vs. Ram Chandra Das, AIR 1996 SC 2436, had taken a different view as it had been held therein that such entries still remain part of the record for overall consideration to retire a government servant compulsorily. The object always is public interest. Therefore, such entries do not lose significance, even if the employee has subsequently been promoted. The Court held as under: -
"Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension."
(Emphasis added)
22. This judgment has been approved and followed by this court in State of Gujarat Vs. Umedbhai M. Patel, AIR 2001 SC 1109, emphasising that the "entire record" of the government servant is to be examined.
23. In Vijay Kumar Jain, (supra), this Court held that the vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires the examination of the entire service records, including character rolls and confidential reports. `Vigour or sting of an adverse entry is not wiped out' merely it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the government servant."
45OA 3163/2016 Item No.17 /C-1
(iii) In OA No. 332/450/2019, in the matter of Alok Kumar Mitra vs. UOI, decided by the Lucknow Bench of this Tribunal on 20.2.2023, it was held: -
"There is no evidence of arbitrariness as by following procedure, Review Committee reviewed the entire service record of the applicant and reached to the conclusion to retire the applicant compulsorily and recommended accordingly. Recommendation was accepted by the Union Government. Thereafter, representation of the applicant has already been rejected, so, it cannot be said that respondents acted arbitrarily or unfairly.
Learned counsel for the applicant further submitted that impugned order has not been passed in public interest. Applicant cannot become dead wood overnight prior to compulsory retirement he was given sensitive work. Applicant's matter was not taken up actually at the age of 50 or 55 years so procedure has not been followed. We do not agree with the aforesaid submission of the learned counsel for the applicant as entire service career of the applicant has been considered by the Review Committee and in the public interest and to strengthen the administration Review Committee reached to the conclusion that services of the applicant are no longer required for the department and the Review Committee recommended the compulsory retirement of the applicant."
(iv) In OA No.3107/22, in the matter of Ajay Kumar Bassi vs. CBI, decided by Principal Bench of this Tribunal on 10.8.2023, the following was held: -
19. .....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 46 OA 3163/2016 Item No.17 /C-1 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. 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 47 OA 3163/2016 Item No.17 /C-1 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 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.
(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 48 OA 3163/2016 Item No.17 /C-1 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 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."
xxx xxx xxx
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 49 OA 3163/2016 Item No.17 /C-1 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 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.
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 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 retire the applicant in public interest. Accordingly, vide order dated 17.06.2022, the applicant was retired under FR 56(j). 50 OA 3163/2016 Item No.17 /C-1 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. 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.
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 51 OA 3163/2016 Item No.17 /C-1 multiple 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."
(v) The respondents have further placed reliance on the DoP&T OM dated 07.08.1985 dealing with FR 56 (j), wherein, after consideration of judgements of the Hon‟ble Courts, it has been provided to consider the entire service record of an officer at the time of review and the manner and limitation of such consideration. There is no such stipulation, however, where the employee is to be retired on grounds of doubtful integrity.
(vi) Respondents also placed reliance on the DoP&T OM dated 21.03.2014 dealing with FR 56 (j). The relevant paras are as follows: -
"3. It may be noted that Compulsory Retirement as a penalty under COS (CCA) Rules, 1955 is distinct from the above provisions.
4. In order to ensure that the powers vested in the appropriate authority are exercised fairly and impartially and not arbitrarily, following procedures and guidelines have been prescribed for reviewing the cases of government employees -covered under the aforesaid rules:
This cases of Government servants covered by FR 56 (j) or FR. 56 (i) or Rule 48(1)(b) of the CCS (Pension) Rules should be reviewed six months before they attain the age of 50/55 years or complete 30 years service/30 years of qualifying service, whichever occurs earlier, Committees shall be constituted in each Ministry Department Office, which all such cases shall be referred for recommendations as to whether the Officer concerned should be retained in service or retired from service in the public Interest.
5. The criteria to be followed by the Committee in making their recommendations would be as follows:-52 OA 3163/2016
Item No.17 /C-1
(a) Government employees whose Integrity is doubtful, will be retired.
(b) Government employees who are found to be ineffective will also be retired. The basic consideration in identifying such employees should be the fitness/competence of the employee to continue in the post which he/she is holding.
(c) While the entire service record of an Officer should be considered at the time of review, no employee should ordinarily be retired on grounds of Ineffectiveness if his service during the preceding 5 years or whore he has been promoted to a higher post during that 5 year period, his service in the highest post has been found satisfactory.
Consideration is ordinarily to be confined to the preceding 5 years or to the period in the higher post, in case of promotion within the period of 5 years, only when retirement is sought to be made on grounds of Ineffectiveness. There is no such stipulation, however where the employee is to be relired on grounds of doubtful Integrity.
(d) No employee should ordinarily be retired on ground of Ineffectiveness, if, in any event, he would be retiring on superannuation within a period of one year f rom the date of consideration of his case Ordinarily no employee should be retired on grounds of Ineffectiveness if he is retiring on superannuation within a period of one year from the date of consideration of the case. It is clarified that in a case where there is a sudden and steep fall in the competence, efficiency or effectiveness of an officer, it would be open to review his case for premature retirement. The above instruction is relevant only when an employee is proposed to be retired on the ground of ineffectiveness, but not on the ground of doubtful integrity. The damage to public Interest could be marginal if an old employee. In the last year of service, is found ineffective; but the damage may be incalculable, if he is found corrupt and demands or obtains illegal gratification during the said period for the tasks he is duty bound to perform.
6. The Supreme Court had not only upheld the validity of FR 56(i) but also held that no show-cause notice need be issued to any Government servant before a notice of retirement is issued to him under the aforesaid provisions. The appropriate authority defined in Note 1 below FR 56 should bonafide form an opinion that is in the public interest to retire the Government servant in exercise of the powers conferred by that provision and this decision should not be an arbitrary decision or should not be based on collateral grounds. Accordingly, in every case where it is proposed to to retire a Government servant in exercise of the powere4s conferred by the said rule, the appropriate authority should record in the file its opinion that is necessary to tire the Government servant in pursuance of the aforesaid rule in the public interest. The order to be served of the Government servant would of cour4se be on the form prescribed for the purpose."
53OA 3163/2016 Item No.17 /C-1
(vii) Reliance is also placed by the respondents on the relevant para of DoP&T OM dated 11.9.2015 dealing with FR 56 (j) dealing with are 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 Gujarat 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.
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 54 OA 3163/2016 Item No.17 /C-1 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 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."
(viii) The respondents also relied upon OM dated 05.05.1966 of Ministry of Home Affairs regarding Agreed List of Suspected Officers which is as under: -
"AGREED LIST OF SUSPECTED OFFICERS
6. Agreed Lists will be prepared of officers of gazetted status against whose honesty or integrity there are complaints, doubts or suspicious after consultations between the officers of the Departments concerned and of CBI. Except in regard to Port Trusts, Public sector Undertakings and Union Territories these lists will be settled by discussion at Delhi between the Head of the Departments concerned and the additional I.G.P. and the D.I.G(Spl) of the CBI. The agreed lists relating to Port Trusts, Public Sector Undertakings and Union Territories will be settled by mutual discussion between the Head of the Port Trust or the Public Sector Undertakings or the Chief Secretary of the Union Territory concerned and the D.IG. of Police C.B.I and the S.P. of the local Branch of the C.B.I to achieve the best result it is important that there should be free and frank exchange of information during these discussions."55 OA 3163/2016
Item No.17 /C-1
(ix) The respondents have relied upon OM dated 21.06.2013 of DoP&T containing Guidelines regarding grant of vigilance clearance. The above OM places the modified position of para 2
(c) of the earlier OM dated 14.12.2007 and the relevant portion is as follows: -
"(c) Vigilance clearance shall not be withheld unless (i) the officer is under suspension (ii) the officer is on the Agreed List, provided that in all such cases the position shall be mandatorily revisited after a period of one year (iii) a chargesheet has been issued against the officer in a disciplinary proceeding and the proceeding is pending (iv) orders for instituting disciplinary proceeding against the officer have been issued by the Disciplinary Authority provided that the chargesheet .is served within three months from the date of passing such order (v) chargesheet has been filed in a Court by the Investigating Agency in a criminal case and the case is pending (vi) orders for instituting a criminal case against the officer have been issued by the Disciplinary Authority provided that the chargesheet is served within . , three months from the date of initiating proceedings (vii) sanction for investigation or prosecution has been granted by the Competent Authority in e case under the PC Act or any other criminal matter (viii) an FIR has been filed or a case registered by the concerned Department against the officer provided that the chargesheet is served within three months from the date of filing / registering the FIR / case {ix) the officer is involved in a trap / raid case on charges of corruption and investigation is pending."
53. An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior. In this matter, the order has been passed by the Government on forming opinion through a Review Committee and the said Committee has held that it is in the public interest to retire the applicant. The Review Committee has considered the entire record of service before taking a decision in the matter including the entries in the confidential records/character rolls, both favorable and adverse. The Review Committee was also aware that the CBI has conducted a PE against the applicant on 56 OA 3163/2016 Item No.17 /C-1 23.06.2004 on the allegations of amassing enormous wealth indulging in corrupt practices. It was alleged that the applicant converted his ill-gotten wealth into legitimate family income by showing trading in diamonds by his wife Smt. Vandna Goel in partnership with one Shri Anil Jain through a firm M/s V.B. Exports, Mumbai. The firm is alleged to have made a profit of Rs. 5 Croes without investing even a single Rupee within a period of just 57 days from 02.02.2000 to 31.03.2000. The applicant was also arrested by the CBI in connection with this case. On 22.01.2010 and remained in custody till 27.01.2010. He was placed under suspension on 26.02.2010. The Review Committee also noted that the applicant had tried to influence the course of CBI investigating officer by offering of Rs. Two lakhs to one Shri R.K.Dass. The Review Committee examined this case in view of judgments of Hon‟ble Supreme Court on the subject and the guidelines issued by by the nodal Ministries/ Departments from time to time. Before taking final decision, the Review Committee perused the ACR/APAR of the applicant of 2000 and 2001 onwards. After examining the complete records, the Review Committee came to the considered opinion that the applicant has failed both on integrity and competence and held the view that if the conduct of the government employee becomes detrimental to the public interest or obstruct the efficiency in the public service, the Government has absolute 57 OA 3163/2016 Item No.17 /C-1 right to retire compulsorily of such an employee in public interest.
54. We are conscious of the fact that there is a very limited scope of judicial review in a case of compulsory retirement and it is permissible only on the grounds of non-application of mind; mala fides; or want of material particulars, however, in this case neither any malafide is alleged nor non-application of mind is observed. We hold the view that power of the Government to retire a Government servant compulsorily in terms of Service Rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. There is no evidence of arbitrariness as by following the stipulated procedure, Review Committee reviewed the entire service record of the applicant and reached to the conclusion to retire him compulsorily and recommended accordingly. The said recommendation was accepted by the Union Government. Thereafter, representation of the applicant against the said recommendation compulsory retirement has already been rejected, so, it cannot be said that respondents acted arbitrarily or unfairly.
55. In view of aforementioned position, we agree with the position brought out by the respondents through their pleadings and hold that the compulsory retirement order under FR 56(j) has been issued by the respondents after extensive and diligent 58 OA 3163/2016 Item No.17 /C-1 exercise to examine the complete service records of the applicant before exercising their power. We are of the considered view that the present Original Application is devoid of merits and accordingly the same is dismissed.
56. Pending MAs, if any, stand closed.
57. No order as to cost.
(Rajinder Kashyap) (Justice Ranjit More)
Member (A) Chairman
/mk/