Central Administrative Tribunal - Patna
Md Mobin Alam vs Employees Providend Fund Organisation ... on 17 November, 2022
-1- OA/051/00124/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT BENCH, RANCHI
OA/051/00124/2022
Reserved on : 25.08.2022
Pronounced on: 17.11.2022
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Md. Mobin Alam, S/O SK. Qurban Ali, resident of Mohalla- Dhatkidih, PO-
Bistupur, P.S.- Jamshedpur, Distt. East Singhbhum, retired as Personal
Assistant, District Office, Giridih- 815301 (Jharkhand).
.... Applicant.
By Advocate(s):- Shri S.K. Khanna, Sr. Advocate assisted by Shri Nilesh
Sinha
-Versus-
1. Union of India through the Secretary, Ministry of Labour &
Employment, Shram Shakti Bhawan, Rafi Marg, New Delhi-
110011.
2. The Central Board of Trustees, EPF through Central Provident
Fund Commissioner, 14 Bhikaji Cama Place, New Delhi-110066.
3. The Additional Central Provident Fund Commissioner (HQ), 14
Bhikaji Cama Place, New Delhi-110066.
4. The Regional Provident Fund Commissioner, Ranchi, Bhagirathi
Complex, Near Circuit House, Karamtoli, Ranchi- 834001.
.... Respondents.
By Advocate(s): -Shri Rajendra Krishna, Sr. SC for R-1.
Shri Prashant Pallav for R-2 to R-4 assisted by Shri
Pradyumna Poddar.
ORDER
Per S.K. Sinha, A.M:- Aggrieved with the order of his compulsory retirement under Rule 56(j) of the Fundamental Rules vide order dated 29.04.2021 (Annexure A-1 series) passed by Additional Central
-2- OA/051/00124/2022 Provident Fund Commissioner (HQ-HR), EPFO and rejection of his representation by the Representation Committee vide order dated 23.12.2021 (Annexure A/1 series), applicant has preferred this OA assailing the order of retirement, constitution of the Screening Committee, Review Committee and representation Committee and the proceedings of these committees. Applicant has prayed for following reliefs at para 8 of the OA.
"8. RELIEF SOUGHT It is, therefore, most respectfully prayed that the Hon'ble Tribunal may graciously be pleased to :-
I. Call for the records of the case.
II. Set aside the impugned order dated 28.04.2021/29.04.2021,
order dated 04.05.2021 and order dated 23.12.2021 (Annexure A-1 series), and order for reinstatement of the applicant with all consequential benefits.
III. Set aside the order No. HR/AVS/NZ/193/56-J/2015/589 dated 14/06/2017 in so far as it relates to the constitution of the Screening Committee for the applicant.
IV. Set aside the proceedings of the Screening Committee meeting held on 23.12.2020.
V. Set aside the order dated 14/06/2017 constituting review committee in so far as it relates to the applicant. VI. Set aside the proceedings of the Review Committee held on 09.03.2021.
VII. Set aside the order no.-F.No. A-38020/06/2021-SS-1 dated 12.11.2021 constituting representation committee in so far as the applicant is concerned and their findings rejecting the representation dated 24.05.2021& 24.06.2021 of the applicant. VIII. Any other relief which the Hon'ble Tribunal pleases in the facts and circumstances of the case.
IX. Award costs to the applicant."
-3- OA/051/00124/2022
2. Short facts giving rise to the OA are that the applicant was appointed as Stenographer in the Employees Provident Fund Organization (EPFO) on 24.02.1992 and was promoted to the post of Personal Assistant (PA) on 14.07.1997. The Screening Committee of EPFO constituted in accordance with the Circular dated 14.06.2017 (Annexure A-13) scrutinized the service records of applicant on 23.12.2020 and found his case fit for retirement under the FR 56 (j). The Review Committee, constituted in terms of the aforesaid circular, examined the report of Screening Committee and relevant documents and recommended for applicant's retirement under FR 56(j) and Respondent No. 3 issued the impugned order on 29.04.2021 retiring the applicant from service. Aggrieved with the order, applicant approached this Tribunal in OA No. 050/00270/2021 which was disposed of on 07.05.2021 with direction to respondents to consider and pass order on the representation of the applicant within time as per spirit of the DoPT OM on the subject dated 28.08.2020. The Representation Committee considered and rejected the applicant's representation vide order dated 23.12.2021. Aggrieved with the rejection of his representation, applicant has preferred this OA.
3. Heard the rival counsel and considered their submissions and materials on record.
4. Shri S K Khanna, learned counsel appearing for applicant reiterated the pleadings in OA and assailed the order of compulsory
-4- OA/051/00124/2022 retirement of the applicant on three grounds viz. (i) competence of the authority issuing the impugned order, (ii) composition of the Screening Committee, the Review Committee and the Representation Committee, and (iii) recommendation/order of these committees being without due consideration of the facts/ rules.
4.1 Learned counsel for applicant submitted that appointing authority for applicant (post of PA) is Additional Central Provident Fund Commissioner but the impugned order dated 29.04.2021 was issued by Additional Provident Fund Commissioner (HQ-HR) which is a superior post. He drew our attention to Schedule-IV of the Employees' Provident Fund (Officers and Employees' Conditions of Services) Regulations, 2008 and the Employees' Provident Fund Organisation Additional Central Fund Commissioner (Hqrs.) Recruitment Rules, 2013 in support of his contention. Ld. counsel argued that the impugned order dated 29.04.2021 (Annexure A1) being issued by an authority other than the appointing authority was per se illegal.
4.2 Ld. counsel for applicant further questioned the constitution of Screening Committee and Review Committee in the EPFO circular dated 14.06.2017 and argued that it was in contravention of the DoPT OM dated 11.09.2015 (Annexure A/12). That there was no provision for Screening Committee in the DoPT OM and further as per para -7 C of the OM, composition of Review Committee for non-
-5- OA/051/00124/2022 gazetted employees in other than centralized cadres was required to be decided by the Head of Department/Head of Organization. With Minister for Labour and Employment approving the composition of Screening Committee and Review Committee, the Circular of EPFO dated 14.06.2017 was in contravention of the DoPT guidelines. 4.3 Ld. counsel also mentioned that the Screening Committee comprised Additional Central Provident Commissioner, the appointing authority for applicant as Chairman and Regional Provident Fund Commissioner, who forwarded applicant's case for consideration under the FR 56(j), as Member. Because of the presence of these authorities, Screening Committee's recommendation was hit by prejudice and bias. Further, the Review Committee was headed by Additional Central Fund Commissioner (HQ) which is higher in rank than his appointing authority.
4.4 Shri S K Khanna, also raised the issue of Screening Committee recommending for applicant's retirement under FR 56(j) in their summary and argued that it was against the committee's charter. That Screening Committee was required to scrutinize and collate the documents in respect of the government servant being reviewed and place the relevant material along with a summary before the Review Committee. The committee was not required to make any recommendation on the applicant's suitability or otherwise for action under the FR 56(j). Since the Screening Committee's report
-6- OA/051/00124/2022 provided foundation for further deliberation and recommendation, the Review Committee's decision was not independent and unbiased.
4.5 Ld. Counsel averred that the Review Committee recommended for applicant's compulsory retirement without due consideration of facts. In making the recommendation, Review Committee considered the criminal case registered against the applicant at Chaibasa Sadar Police Station and the departmental proceeding initiated against him on the same charges. Since the applicant was acquitted of the charges by the trial court, it was improper on part of Review Committee to take this fact into consideration. Further, the complainant had filed an affidavit that she had not seen the applicant before coming to the court and thus giving a clean chit. Further, the consideration of pending departmental proceeding against applicant by the Review Committee in recommending the applicant's compulsory retirement was also improper because applicant had challenged the departmental proceeding before the Tribunal which directed the respondents to conclude the departmental proceeding within six months. Respondents, rather than concluding the departmental proceeding within the given time, took recourse of FR 56(j) as a short cut.
4.6 Ld. counsel for applicant argued that Review Committee took note of his unauthorized absence from office on some occasions for
-7- OA/051/00124/2022 which memo was issued to him but ignored the fact that he had submitted explanations which were accepted by his controlling authorities as satisfactory. Ld. counsel also mentioned that in the case of purchase of flat adverse observation about his conduct was based on presumptions and conjectures.
4.7 Ld. Counsel argued that the applicant had "Very Good" overall grading in the ACRs for the year 2017-18, 2018-19, 2019-20 & 2020- 21 and his integrity was also shown as 'beyond doubt'. Also, there was nothing adverse in the applicant's ACR which would warrant his pre-mature retirement under the FR 56(j). Before parting, learned counsel for applicant also made submission that the ACR of the applicant for the period 2016-17 showing his integrity as doubtful was not supplied to the applicant. Learned counsel for applicant submitted that the Review Committee did not act in fair and judicious manner and rather got influenced by the recommendation of the Screening Committee. The Representation Committee also erred in law in rejecting these grounds in his representation. 4.8 Counsel for applicant placed reliance on following Court decisions in support of this case :-
(i) Vijay Lakra Vs. UOI, CAT, Patna Bench order dated 22.04.2022 in OA/051/00262/2020.
(ii) Avinash Kumar Gupta Vs. the Commissioner, North Delhi Municipal Corporation, CAT, Principal Bench order dated 19.04.2021 in OA No. 1812/2020.
-8- OA/051/00124/2022
(iii) Order dated 09.04.2021 in OA 256/2021 and dated 08.03.2022 in MA 659/2021.
(iv) Judgment of Hon'ble Supreme Court in the case of Registrar, High Court of Madras Vs. R. Rajiah and Ors. decided on 11.05.1988 in Civil Appeal Nos. 367 and 368 of 1984.
(v) Judgment of Hon'ble Supreme Court in Baikunth Nath Das and Ors.
Vs. Chief Medical Officer, Baripada &Ors. decided on 19.02.1992 in Civil Appeal Nos. 869 with 870 of 1987.
(vi) Baldev Raj Chadha Vs. UOI &Ors [ AIR 1981 SC 70]
(vii) S.R. Vebkataraman Vs. UOI &Ors. [ AIR 1979 SC 49]
(viii) Union of India &Ors. Vs. M.R. Reddy [ AIR 1980 SC 563]
(ix) M.S. Bindra Vs. UOI &Ors. [ AIR 1998 SC 3058]
(x) Amar NathChoudhary Vs. Braithwaite & Company Ltd. [ AIR 2002 SC 678]
(xi) Judgment of Delhi High Court in A.K. S. RathoreVs. UOI &Ors. [ 2016 VIAD (Delhi) 469].
5. Respondents filed written statement and counsel for respondents, Shri Prashant Pallav, during the hearing, reiterated the pleadings in WS and maintained that the compulsory retirement of applicant under Rule 56(J) of Fundamental Rules was in accordance with the rules/law. That the decision to retire applicant under the FR 56(j) was recommended by the Review Committee after due consideration of his service records, general conduct and several memorandums and warnings issued to him by his superiors for dereliction of duties, disregard for punctuality and periodic absenteeism.
5.1 Ld. counsel for respondents averred that applicant was arrested in a criminal case registered at Chaibasa Sadar Police Station
-9- OA/051/00124/2022 for withdrawing a sum of Rs. 1, 99,000/- from the account of one private citizen in connivance with one of her relatives. After investigation, Police submitted charge sheet against the applicant under Section 420, 467, 468, 471 and 120 B of the IPC. In the trial, court acquitted him of the charges under Section 467, 468, 471 and 120B of the IPC. But his acquittal under Section 420 was on the basis of a compromise with the complainant of the FIR. Ld. counsel argued that the compromise for securing acquittal in the criminal case amounted to acceptance of guilt. A departmental proceeding has also been initiated against the applicant on this charge which is currently under process.
5.2 Shri Prashant Pallav averred that applicant was found evasive in disclosing the details of his savings which he had claimed in an application for departmental permission to purchase a flat. He had applied for permission to purchase a flat worth Rs. 50 lakhs of which he had claimed to mobilize Rs. 10 lakhs through personal savings. Permission was granted to buy the flat but some queries were raised regarding his personal savings. The applicant first tried to avoid giving a reply and when the queries were pressed he informed that the entire transaction with the builder had been cancelled. 5.3 Refuting the applicant's claim that the impugned order was illegal for being issued by someone other than the appointing authority , Ld. counsel for respondents argued that the order was issued by Additional Central Provident Fund Commissioner(HQ-HR)
-10- OA/051/00124/2022 which is a superior post compared to the appointing authority. Ld. Counsel averred that it was settled law that an order passed by an authority superior to the appointing authority was lawful and valid. He cited the observation of Hon'ble Supreme Court in the case of Government of Andhra Pradesh and Another Vs N Ramanaiah [(2009) 7 SCC 165] in support of his claim.
5.4 Counsel for respondents further contested the averment of applicant that the composition of Screening and Review Committee in the EPFO Circular dated 14.06.2017 was not in agreement with the DoPT OM dated 11.09.2015. Ld. counsel Shri Prashant Pallav stated that the subsequent DoPT OM dated 28.08.2020 on the subject provides for Screening Committee (termed as Internal Committee). Further, it is mentioned in the OM that the composition of Review Committee for non-gazetted employees will be decided by the head of the Department. In the instant case, the Review Committee has been constituted on the approval of Chairman, CBT and Ministry of Labour and Employment which are superior authority than the head of the Department. Hence, there was no irregularity in composition of the Screening Committee and Review Committee. 5.5 Learned counsel for respondent referred to para 7 of the EPFO Circular dated 14.06.2017 which provides that that the Internal Screening Committee should consist of senior officers who had occasion to know about the work and conduct of the officer under
-11- OA/051/00124/2022 review. Hence, there was no irregularity or violation of any principle in the composition of Screening Committee with Additional Central Provident Fund Commissioner as Chairman and Regional Provident Fund Commissioner as Member. Ld. Counsel for respondent put reliance on the observation of Hon'ble Supreme Court in State of M.P. vs Ganekar Motghare [1989 Supp(2) SCC 703] holding that the presence of Head of Department in the Screening Committee was necessary to have a fair and correct assessment of the work and conduct of the employee of that Department and that the adverse remarks awarded by the Head of Department earlier does not mean that he had any malice against the employee.
5.6 Counsel for respondent also maintained that Screening Committee was required to scrutinize the service records, personal file and other records in respect of the Government servant being reviewed and prepare a summary bringing out the relevant details for his consideration under FR 56(j). Hence, there was no irregularity if Screening Committee provided its opinion/recommendation after examining the records. The Review Committee was completely independent of the Screening Committee and it was improper to say that they got influenced by the decision of the Screening Committee. Respondents have put reliance on the judgement of Hon'ble Supreme Court in the case of Rajasthan SRTC Vs. Babu Lal Jangir [2013(10) SCC 551] .
-12- OA/051/00124/2022 5.7 Counsel for respondents refuted the applicant's contention that provisions of FR 56(j) was invoked in this case as a short-cut to the pending departmental proceeding. He argued that proceeding under FR 56(j) and the departmental proceeding under the EPF Staff (CC& A) Rules, 1971 are separate and independent processes and the two can be pursued simultaneously. Ld. counsel averred that the departmental proceeding would continue under Rule 9 of the CCS (Pension) Rules even after the applicant's retirement. 5.8 Shri Prashant Pallav drew attention to the applicant's APARs (Annexure A/18 Series), and the adverse entries therein relating punctuality, diligence and sense of accountability. He submitted that the integrity of the applicant for the year 2016-17 was doubtful. To a specific query whether the remark of "doubtful integrity" in the APAR of 2016-17 was communicated to the applicant, ld. counsel for respondents submitted that as per Hon'ble Apex Court has settled the law that even uncommunicated entries can form part of the decision for retiring an official under FR 56(j). Ld. counsel drew attention to the judgment of Hon'ble Supreme Court in the case of State of Gujarat vs Umedbhai M Patel [(2001) 3 SCC 314] in support of this assertion.
6. Going by the above submissions of rival counsel and the materials on record, it is evident that applicant has assailed the order of compulsory retirement on the grounds of appropriateness of the
-13- OA/051/00124/2022 authority issuing the impugned order, composition of the Screening and Review committees, legal validity of the proceedings and the sufficiency of the materials. On the other hand, respondents have highlighted the severity of material considered by the Review Committee in making the recommendation and disputed the charge of procedural and technical shortcomings in the impugned order. Thus the issue erupting before us for adjudication is whether the order of applicant's retirement under the FR Rule 56(J) was in accordance with the rules/law.
7. Learned counsel for applicant put reliance on following judgments of Hon'ble Supreme Court, High Courts and the CAT Benches in support of his averments.
7.1 This Tribunal Bench in OA No. 051/00262/2020 (Vijay Lakra Vs Union of India & Ors.) had held that the order of compulsory retirement of the applicant did not satisfy the criteria of "public interest" as the appropriate authority did not take into consideration the entire service record of the applicant, especially the promotion granted to him in 2016, the APARs of other four years out of five which were examined and the pending status of departmental and criminal proceedings.
7.2 The Tribunal's Principal Bench in OA No. 1812/2020 set aside the order of compulsory retirement passed in 2019 holding that three minor and one major punishments awarded to the applicant up
-14- OA/051/00124/2022 to the year 2006 could not be counted as sufficient for compulsory retirement after the applicant had been promoted to the higher rank in 2010.
7.3 Hon'ble Supreme Court in Civil Appeal Nos. 367 and 368 of 1984 ( Registrar, High Court of Madras Vs R Rajiah and Ors.) upheld the decision of Division Bench of High Court quashing the orders of compulsory retirement of the two respondents who were then the District Munsifs on the ground that there was no material on record to justify the order of compulsory retirement.
7.4 In Baikuntha Nath Das and Ors . Vs Chief Medical Officer, Baripada and Ors. [(1992) 2 SCC 299] Hon'ble Supreme Court dismissed the appeal and upheld the order of compulsory retirement. Observation of Hon'ble Apex Court at para 31 of the order in this case reads as under:-
"31 .....In some cases , it may happen that some adverse remarks of the recent years are not yet communicated , or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F. R. 56(j) need not be held back. There is no reason to presume that the Review Committee or the government, if it chooses to take into consideration such uncommunicated remarks , would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same."
Hon'ble Apex Court also laid down the following principles on the issue of compulsory retirement at para 32.
"32. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
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(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 interfere. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above."
7.5 Hon'ble Supreme Court in Baldev Raj Chadha vs Union of India [(1980) 4 SCC 321] observed that a court/Tribunal is required to satisfy itself whether the compulsory retirement was necessary in public interest.
"8. .............. When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the court may be satisfied that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of 'public interest' justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well-settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well-known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest."
-16- OA/051/00124/2022 Hon'ble Apex Court in this case also felt a need to avoid possible misuse of confidential reports in compulsory retirement and its observation in this regard reads at para 9 as under:
"9. ...... It is in public interest to retire a never-do-well , but to juggle with confidential reports when a man's career is at stake is a confidence trick contrary to public interest . Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision making. The appropriate authority, not the court, makes the decision, but, even so, a caveat is necessary to avoid misuse." 7.6 In S.R. Venkataraman Vs. UOI & Ors. [ AIR 1979 SC 49], Hon'ble Supreme Court set aside the order of premature retirement under Clause (j) (i)of Rule 56 of the Fundamental rules on the ground that there was nothing on the record to justify the order of her retirement in "public interest".
7.7 In Registrar, High Court of Madras Vs. R. Rajiah [ AIR 1988 SC 1388] Hon'ble Supreme Court held that in the absence of any material to justify the impugned orders of compulsory retirement, those must be held to be illegal and invalid.
7.8 In the case of M.S. Bindra Vs. Union of India (UOI) and Ors. [(1998) 7 SCC 310], Hon'ble Apex Court set aside the order of premature retirement on the ground that there was utter dearth of evidence for the Screening Committee to conclude that appellant's integrity was doubtful. Hon'ble Supreme Court held that judicial scrutiny of the orders of compulsory retirement was permissible if the order was either arbitrary or mala fide and based on no evidence. Hon'ble Court also held that there must be preponderance of
-17- OA/051/00124/2022 probability before the Screening Committee to declare an officer one of doubtful integrity.
8. Returning to the moot issue of legal validity, we note that applicant has been retired vide the impugned order dated 28.04.2021/29.04.2021 (Annexure A/1 series) under Rule 56(j) of the Fundamental Rules. The rule is reproduced below for the sake of brevity.
" 56(j) 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 Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice :-
(i) If he is, in Group 'A' or Group 'B' service or post in a substantive, quasi permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) In any other case after he has attained the age of 55 years."
Evidently, the scope of judicial review in orders of retirement under FR 56(j) is limited as the rule provides absolute right to the appropriate authority to retire a government servant in public interest. In Baldev Raj Chaddha cited supra, Hon'ble Apex Court held that the courts are confined to an examination of the material merely to see whether the compulsory retirement of the officer concerned is necessary in public interest. In M.S. Bindra cited supra Hon'ble Apex Court held that judicial scrutiny was permissible if the order was arbitrary, or mala fide or base on no evidence.
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9. The applicant has assailed the impugned order on three grounds viz. (i) that the order was not passed by the appropriate authority, (ii) that the Screening Committee and Review Committee, which performed statutory role relating to FR 56(j), were not constituted as per the guidelines and (iii) that the decision of these committees were without due consideration of the facts.
10. Regarding the validity of impugned order being passed by an authority other than the appointing authority, ld. counsel for respondent cited the observation of Hon'ble Supreme Court in Government of Andhra Pradesh and Another Vs N Ramanaiah supra at para 15 as under.
"15. One more aspect that may have to be borne in mind is that Article 311(1) does not command that dismissal must be by the very same authority who made appointment or by its direct superior. The dismissal can be either by the appointing authority or by any other authority to which the appointing authority is subordinate. The dismissal of a civil servant must comply with the procedure laid down in Article 311."
Article 311(1) of the Constitution provides that "No person who is a member of a civil service of the Union or an All India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed." Based on the Constitutional provision under Article 311(1) and the above observation of Hon'ble Supreme Court (para 8.1) we do find that it cannot be said that Additional Provident Fund Commissioner (HQ-HR) was not competent to issue impugned order of applicant under FR 56(j).
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11. Regarding the composition of Screening Committee and Review Committee constituted vide the EPFO circular dated 14.06.2017, applicant has argued that it was in contravention of the DoPT OM dated 11.09.2015 (Annexure A/12). Respondents have refuted the applicant's claim stating that the subsequent DoPT OM dated 28.08.2020 on the subject provides for Screening Committee (termed as Internal Committee). Also, the OM provides that the composition of Review Committee for non-gazetted employees will be decided by the head of the Department. In the instant case, the Review Committee has been constituted on the approval of Chairman, CBT and Ministry of Labour and Employment which are superior authority than the head of the Department. Hence, we find no irregularity in composition of the Screening Committee and Review Committee. Further, since Screening Committee was required to assist the Review Committee by scrutinizing the documents/records and preparing a summary bringing out the relevant details, we feel that presence of Additional Central Provident Fund Commissioner and Regional Provident Fund Commissioner in the Screening Committee as Chairman and Member respectively was necessary. Applicant has not pleaded any malice against these officials. Also, Review committee worked completely independent of the Screening Committee. Hence, there was no irregularity in the composition of the Screening Committee.
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12. On the issue, whether the observation of Summary Committee that applicant was a fit case for compulsory retirement under FR 56(j) was beyond its assigned charter and whether that unduly influenced the Review Committee's decision, we note that role of Internal Screening Committee has been elaborated in the DoPT OM dated 28.08.2020 and the EPFO Circular dated 14.06.2017. According to DoPT OM, the Internal Committee "will ensure that the service record of the Government servants being reviewed, along with a summary, bringing out all relevant information, is submitted to the Cadre Authorities at least three months prior to the due date of review." Role and function of Internal Screening Committee as provided at para 7(i) of the EPFO circular reads as under.
"7. Role& Function of Appropriate Authorities and Committees:
(i) Internal Screening Committee :The Committee consisting to the extent possible of those senior officers who have had occasion to know about the work and conduct of the officers who have had occasion to know about the work and conduct of the officer proposed to be reviewed is constituted as a standing arrangement to render assistance to the Review Committee. The committee shall ensure that the service records of employees reviewed along with the summary bringing out all relevant information is submitted to the authority at least three months before the due date of review. It has to prepare a comprehensive brief on each officer, for being placed before the Review Committee. The Committee shall verify and scrutinize the register of employees who are due to attain the age of 50/55 years or complete 30 years of service at the beginning of each quarter."
Evidently, the Screening Committee is required to scrutinize cases of those officials whose further utility to the organization is considered doubtful and prepare the summary bringing out relevant details relating his utility to the organization. Further, the Screening Committee submits its report to the Cadre authorities three months
-21- OA/051/00124/2022 before the due date of review and not directly to the Review Committee. Very fact that a case has been referred to the Review Committee for review implies that it has been found by the Screening Committee and cadre authority as a fit case for action under FR 56
(j). Hence, we do not find any irregularity whatsoever in the recommendation of Screening Committee. The Review Committee being completely independent of the Screening Committee, it is rather improper and even frivolous to say that it got influenced by the views of Screening Committee.
13. In State of Gujarat Vs. Umedbhai M. Patel cited supra Hon'ble Supreme Court settled the law relating to compulsory retirement under the FR 56 (j) as follows.
"11. The law relating to compulsory retirement has now crystallized 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 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.
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14. In the case of Rajasthan SRTC Vs. Babu Lal Jangir, Hon'ble Supreme Court allowed the appeal holding as under .
"28. It hardly needs to be emphasized that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non- application of mind, mala fide, perverse, or arbitrary or if there is non-compliance of statutory duty by the statutory authority. Power to retire compulsorily, the government servant in terms of service rule is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest."
15. The object of compulsory retirement under Rule FR 56(J) is to weed out the dead wood in order to maintain efficiency and initiative in the service and also to dispense with the services of those whose integrity is doubtful. Hon'ble Supreme Court in Union of India vs Col J N Sinha[ (1970) 2 SCC 458] held as under:-
"There is no denying that the fact that in all organizations, and more so in government organizations, there is good deal of dead wood. 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 interest of the public. While a minimum service is guaranteed to the government servant, the government is given power to energize its machinery and make it more efficient by compulsorily retiring those who is in its opinion should not be there in public interest. "
16. Review Committee took into consideration the service records of the applicant including his APARs , the memorandums and warnings issued to the applicant for dereliction in punctuality and absenteeism, his arrest and subsequent acquittal in a criminal case and his evasive conduct in disclosing the sources of his savings for purchase of a flat while recommending the applicant's case for compulsory retirement. Perusal of the applicant's APARs at Para -
-23- OA/051/00124/2022 4.22 of OA and Annexure A/18 Series shows some adverse entries about punctuality and diligence, and capability in the APAR for year 2004-05, 2012-13, 2014-15, 2016-17, 2018-19 and 2019-20. The applicant's integrity was shown as 'doubtful' in the APAR for the year 2016-17. Applicant was also issued several memorandums and warnings about his punctuality and diligence in the years 2003-2017 as mentioned at page 273 (Annexure A/20). Though applicant was acquitted of the criminal charges by the trial court, the fact that he was arrested by police and acquitted by trial court on the basis of compromise speaks volumes of his general conduct and the confidence that his continuation would evoke in the public about the organization's functioning. Further, his evasive conduct in disclosing sources of savings only works against his interest.
17. The applicant has raised the issue of violation of natural justice as he was not communicated the remark of "doubtful integrity" in his APAR for 2016-17 which the Review Committee took into consideration in deciding his retirement. In J N Sinha case supra Hon'ble Supreme Court supported the view that the rules of natural justice are not embodied in exercising the power under Rule 56(J) of the Fundamental Rules. In Baikuntha Nath case supra the main issue in that case was whether the employer could act upon un- communicated adverse remarks and whether observance of the principles of natural justice was necessary before taking a decision to
-24- OA/051/00124/2022 compulsory retire a government servant. Hon'ble court answered both the questions in the negative holding that it was permissible for the Government to even look into and consider un-communicated adverse remarks. It was also held that since the premature retirement was not stigmatic in nature and such an action was based on subjective satisfaction of the Government, there was no room for importing facet of natural justice in such a case.
18. During the hearing, a specific query was put to the counsel for applicant whether applicant was granted any promotion or whether there was any acknowledgement by the organization of any of his positive contribution in recent years. Ld. counsel mentioned that his last promotion was in 1997 to the post of PA and his good work was reflected through his service records.
19. It is clear from above discussions that the Review Committee's recommendation cannot be called arbitrary or without any material. The Committee's report shows that consideration of applicant's service records including the APARs, memorandums and warnings issued in past for dereliction of punctuality, diligence and absenteeism, applicant's general conduct reflected through registration of FIR, his arrest and subsequent acquittal by the trial court on the basis of compromise and his evasive conduct about his savings. There were no promotions or any good work by the applicant in recent years which could mitigate the adverse service records or warnings etc. Also, as per the decision of Hon'ble Supreme
-25- OA/051/00124/2022 Court in several cases uncommunicated material could be relied upon in retirement under FR 56(j) and there was no room for importing facet of natural justice in such cases. Representation Committee after examining in detail various points raised by the applicant in his representation upheld the decision to retire the applicant under FR 56(j). Thus, we find no legal infirmity or violation of rules in in the impugned order.
20. Considering the facts and legal aspects discussed above, we feel that the OA is devoid of merit and deserves dismissal. We order accordingly. No order as to cost.
[Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.